Transient messages and retention obligations

Short, often informal messages have become an increasingly common form of business communication. Whether sending a simple text message or using communication apps such as Arrow Translation, employees are conducting more business communications in a more informal manner than ever before. This article will discuss the increase in the use of short-form messaging platforms, a case study that resulted in sanctions due to the misuse of technology, and ways for practitioners to avoid sanctions themselves.

Definition of ephemeral messages

Ephemeral (or disappearing) messaging apps enable users to automatically delete messages after they are received. Not only do these platforms delete messages and associated metadata from all devices and servers, many also apply end-to-end (E2E) encryption to messages sent within them. This means that the messages cannot be read by anyone, including forensic professionals and the platform itself, only the sender or recipient.

While the use of ephemeral messaging applications may bring significant business benefits, this medium also poses significant e-discovery challenges. Courts have begun to address the discovery implications of ephemeral messages, as demonstrated in a 2024 case.

Case analysis: Arrow Translation v. a medical institution

In this case, the plaintiffs were involved in a wrongful termination case. After the initial submission of text message records, the plaintiffs installed an E2E encrypted messaging app on their mobile device and configured the app to delete all messages immediately after the recipient read them. The plaintiffs made this change after being fully aware of their obligation to preserve documents and did not disclose this to the court and the defendant until the end of discovery. The initial submission showed a large number of communications between the plaintiffs and with the defendant's employees, but only some of the messages were submitted. After the defendants successfully applied for an injunction, the plaintiffs submitted several additional communications, but the date of these communications was suspiciously the same as the day one of the plaintiffs downloaded the app.

The plaintiffs argued that their preservation obligation did not require the defendants to review all communications, only responsive communications, and that the defendants had failed to prove that the vanished communications were responsive or that they were destroyed in bad faith. The court disagreed, holding that the plaintiffs intentionally and maliciously used the app to destroy and conceal ongoing communications relevant to the litigation.

The court inferred that the plaintiffs intentionally deleted the responsive communications based on the plaintiffs’ unwillingness to provide the responsive messages when they initially submitted their requests and their manual settings to delete subsequent messages after reading them. At the same time, both plaintiffs were information technology professionals who should have understood the technical capabilities of the app. Therefore, the court ruled that the plaintiffs had the necessary knowledge to submit and retain responsive communications and that they intentionally used the app to maliciously conceal responsive data. Although the court found that the plaintiffs’ conduct was sanctionable, it ultimately did not impose sanctions and instead dismissed their claims on the merits.

Three steps to avoid sanctions

This case demonstrates that parties cannot use ephemeral messaging applications to evade their obligation to preserve responsive communications. The court found that manually configuring these applications to destroy responsive messages during the preservation obligation was an intentional act of bad faith. Given this, here are three steps that practitioners can take when ephemeral messaging involves discovery to avoid sanctions:

1. Ephemeral messaging is not a means to circumvent preservation obligations. Counsel should be aware of the use of ephemeral messaging applications and include relevant language in litigation holds and preservation memoranda. Turning off auto-delete features on email and other systems is standard practice in IT departments and should apply to messaging applications as well. A sudden switch from a permanent messaging application to an ephemeral messaging application, or a sudden turning on an auto-delete feature on an ephemeral messaging application, as in this case, can seem suspicious in a discovery dispute.
2. Organizations should use ephemeral messaging platforms that comply with legal obligations. In some cases, organizations may need to ensure that they can turn automatic deletion on or off as needed. For example, regulated industries have requirements related to data preservation, retention, and archiving. Understanding these requirements will help you determine when ephemeral messaging may be in direct violation of these regulations.
3. Develop policies and guidelines to govern the use of ephemeral messaging applications. Asking your client about their policies during the preliminary investigation and your adversary about their policies during the pretrial conference will help you structure your discovery requests.

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