Ephemeral messaging apps that automatically erase a user’s messages in a short amount of time are being used more than ever in the workplace. Given the large amount of data these apps generate, they are already having a major impact on the e-discovery and legal space.
This new form of communication does not reduce the ethical and legal obligations of attorneys. Pretending to be naive about ephemeral messaging is not a valid excuse, and actually enforcing reasonable use policies is an important consideration.
In two recent examples, JPMorgan Chase & Co. was forced to pay a $125 million fine and make significant improvements to its compliance policies and procedures for failing to maintain and preserve written communications. Goldman Sachs also fired an executive for communicating about the company’s business through unauthorized channels.
With these cases in mind, here are some key recommendations for law firms and businesses to consider regarding the collection and processing of ephemeral messaging apps in e-discovery.
Corporate policies need to be reviewed and updated. Carefully consider your current data retention, acceptable use, and bring-your-own-device policies. Be sure to consider the risks, defensibility, cost, burden, and enforcement of these policies.
Data mapping is critical to compliance, security, risk management, and operational efficiency. Consider how data mapping can help you proactively manage ephemeral messaging and other chat applications. A legal hold notice alone is not sufficient.
Understand your ethical and legal obligations. These new applications are being created every day, posing significant challenges and risks.
Self-collection raises issues of accuracy and completeness. This makes it increasingly important for lawyers to involve experienced forensic experts on their teams to understand how tools are being used. These applications can include everything from messaging apps, structured data, mobile games, video applications, payment processors, and more.
Regulators and plaintiffs’ courts are becoming more sophisticated, embracing technology, and asking more about these data sources than ever before. The need for context regarding chat communication has led to a different approach than reviewing data based on a single message, a 24-hour transcript, a 48-hour transcript, or his 6-hour break in the conversation.
Clients have become more knowledgeable about the e-discovery process and more cost-conscious than ever. Not having a defensible, cost-aware strategy creates customer management problems.
Data storage and collection processes are under intense scrutiny, so it’s more important than ever to work with forensic experts and plan accordingly.
Using these apps poses a major challenge for legal teams. Failure to catch up, attract and engage experts creates real risks from a sanctions perspective and from a customer relationship perspective.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author information
Raakib Bhuiyan is an electronic discovery analyst at Wilson Sonsini, where he advises litigation teams and clients around the world on complex discovery matters.
Andy Kim advises Munger Tolles & Olson and its clients on defensible e-discovery practices, including preservation, collection, document review, production, and analysis.
John Del Piero is responsible for developing integration partnerships with a variety of AmLaw 200, Global 100, and Fortune 500 clients.
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