Ephemeral apps (i.e. SnapChat, Instagram) empower people to quickly and automatically delete communications that could be relevant to litigation. These new tools will cause headaches for legal teams trying to prevent spoliation, which can lead to severe e-discovery sanctions.
In this age discrimination case, the defendant motioned for e-discovery sanctions against the plaintiffs for using an ephemeral messaging app that would automatically delete messages sent between plaintiffs during discovery.
The defendant requested plaintiffs’ mobile phone data. The plaintiffs only produced “screenshots of parts of text messages conversations” and no other communications. The defendant didn’t believe that more text messages weren’t available and motioned to compel production of additional messages. The plaintiffs denied that any other relevant data existed on their mobile phones. After the initial production, plaintiffs installed an ephemeral app that enabled plaintiffs to communicate via text and automatically delete messages shortly after “a short period of time.”
The defendant learned of the plaintiffs use of this app and the destroyed communications and subsequently asked for an adverse inference or dismissal due to this spoliation.
Plaintiffs contend that the communication apps were only used “to arrange meetings with one another or their attorney, and no longer had any text message communications responsive to AFMC’s (plaintiff) request for production."
Download the PDF version of Herzig v. Arkansas Foundation for Medical Care case law alert here.
The failure to be forthright and honest regarding the use of ephemeral apps like Snapchat will most likely infer a bad faith motive in this case. It’s imperative for counsel to have a clear understanding of where relevant data may be stored and to take immediate actions to preserve that data no matter the source.