The Simplified
E-⁠Discovery Case Law Library
A collection of simple, easy to understand analyses and resources on e-⁠discovery case law.
Case shelved under Reasonableness

The Use of Ephemeral Apps Creates New Spoliation Techniques

Herzig v. Arkansas Foundation for Medical Care
W.D. Ark. July 3, 2019
Why This Case Is Important

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.

Overview:

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."

Ruling:
  • Bad Faith Conduct. The court ruled that the plaintiffs only produced “some of…responsive communications” and did not disclose the use of an ephemeral app that was used to “disguise and destroy communications.” Because of this “the Court believes that the decision to withhold and destroy those likely-responsive communications was intentional and done in bad faith.”
  • No Ruling on E-Discovery Sanctions. The court noted, “This intentional, bad-faith spoliation of evidence was an abuse of the judicial process and warrants a sanction. The Court need not consider whether dismissal, an adverse inference, or some lesser sanction is the appropriate one, however, because in light of the motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”
Download Case Law PDF

Download the PDF version of Herzig v. Arkansas Foundation for Medical Care case law alert here.

Legal Analysis
On Herzig v. Arkansas Foundation for Medical Care
Mike Hamilton, J.D.  Director of Marketing, Exterro
BY
Mike Hamilton, J.D. Director of Marketing, Exterro


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.

Mike Hamilton's Bio
relevant resource
Under FRCP 37(e), in order to be granted spoliation sanctions, the moving party must show that they were prejudiced by the spoliation. In this case, the court ruled that the prejudice suffered must be "severe," leaving us to wonder: what level of prejudice is needed to warrant spoliation sanctions?
How Much Prejudice is Needed to Warrant an Adverse Inference Instruction?
download now
return to case law library
Reasonableness room