Published on Apr 11, 2023 
Electronic discovery seems to be constantly in flux due to the complexities posed by technology. Nowhere is this more apparent than with communication technologies. Indeed, the proliferation of messaging applications and platforms has expanded the scope of discovery, along with parties’ disputes over the issues. In an effort to help clarify questions regarding communication technologies, we have prepared a glossary that provides explanations and supporting authorities regarding messaging applications and platforms.
Automated Deletion technology enables a user to program an application that will enable deletion of application content within a set period of time, typically determined by the program user. Automated Deletion has traditionally been associated with email and other information systems. Automated Deletion features are available with Ephemeral Messaging and on certain Text Messaging applications including iMessage, found on iPhones and other Apple electronic devices.
References: Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment; DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839, 931-33 (N.D. Ill. 2021); Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 233 (D. Minn. 2019); Philip Favro, Ephemeral Messaging: Balancing the Benefits and Risks, Practical Law The Journal (2023).
Cloud ESI refers to ESI that is found in online or web-based repositories. The term “cloud” has become a shorthand reference for any data found in online repositories and is typically hosted by third parties. Examples of Clould ESI include personal or web-based email providers such as Gmail, Hotmail, Yahoo!, and GoDaddy, along with the corresponding Instant Messaging applications that these and other providers offer including Google Chat and Yahoo! Messenger. Cloud ESI also includes data maintained by Enterprise Cloud Applications, Personal Cloud Applications, and Workplace Collaboration Tools.
References: DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839, 882-83, 885, 911 (N.D. Ill. 2021); Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 WL 2987051, at *3 (S.D. Ohio July 1, 2014), adopted as modified, 2015 WL 4742686 (S.D. Ohio Aug. 11, 2015); Philip Favro, The New ESI Sanctions Framework Under The Proposed Rule 37(e) Amendments, 21 Rich. J.L. & Tech. 8, 16-19 (2015).
Dynamic characterizes the nature of a particular ESI as being easily subject to modification or deletion. Dynamic ESI can be modified or deleted by the user, the recipient(s), the application provider, or by the technology itself.
Reference: The Sedona Conference, Commentary on Ephemeral Messaging, 22 Sedona Conf. J. 435, 446-48 (2021); The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1, 10 (2019).
Encryption involves the use of cryptography to convert plain text in a message into coded text. The message cannot be read until the process is reversed, allowing the intended recipient to decrypt the message. Encryption can take many forms and provides varying degrees of protection depending on the sophistication of the keys and algorithm.
Reference: The Sedona Conference, Commentary on Ephemeral Messaging, 22 Sedona Conf. J. 435, 447-48 (2021).
Also known as “end-to-end encryption” and “endpoint encryption,” E2E Encryption safeguards communicated data by making it unintelligible in the absence of the algorithm and keys before the data is scheduled for expiration. Barring a technical flaw in the implementation of the encryption, E2E Encryption shields message content from third parties. This includes the provider of any messaging technology that offers E2E Encryption features, along with the provider’s data stores and employees.
Reference: The Sedona Conference, Commentary on Ephemeral Messaging, 22 Sedona Conf. J. 435, 447-48 (2021); Philip Favro, Ephemeral Messaging: Understanding Key Preservation Issues in Civil Litigation, FMJA BULLETIN (Sep. 2022).
Enterprise Cloud Applications offer organizations a variety of turnkey services that deliver cost-effective alternatives to acquiring expensive computer hardware and software. Those services range from simplified data storage for Cloud ESI and innovative software platforms to a collaborative communication and file sharing work environment for a mobile and widespread work force. Enterprise Cloud Applications include Microsoft 365 with its suite of software and services including Microsoft Office, OneDrive for Business, SharePoint, and its Workplace Collaboration Tools, Microsoft Teams. Enterprise Cloud Applications also include comparable product and service suites offered by Google, along with companies delivering a range of software, sales, and marketing enablement services such as Adobe, Oracle, SAP, and Salesforce (which now owns Slack, the popular Workplace Collaboration Tools). Personal Cloud Applications like Dropbox and Box also have enterprise offerings for organizations.
References: Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 WL 2987051, at *3 (S.D. Ohio July 1, 2014), adopted as modified, 2015 WL 4742686 (S.D. Ohio Aug. 11, 2015); Philip Favro, Addressing Employee Use of Personal Clouds, 22 Rich. J.L. & Tech. 6, ¶1 (2016).
Ephemeral Messaging refers to secure written communications between one or more parties that are generally considered dynamic and lasting a very short time. The two key features of Ephemeral Messaging that separate this technology from other electronic communication media are: (1) Automated Deletion of message content on both the sender’s and the recipient’s applications; and (2) E2E Encryption functionality. Also known as “self-destructing messages” and “disappearing messages,” consumer or enterprise-grade versions of Ephemeral Messaging are available from Confide, DingTalk, Signal, SnapChat, Telegram, TigerConnect, Viber, WhatsApp, and Wickr.
References: Pable v. Chicago Transit Auth., No. 19 CV 7868, 2023 WL 2333414, at *4, n.2 (N.D. Ill. Mar. 2, 2023); F. T. C. v. Noland, No. 20-cv-00047, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021); WeRide Corp. v. Kun Huang, No. 5:18-cv-07233, 2020 WL 1967209, at *8 (N.D. Cal. Apr. 24, 2020); The Sedona Conference, Commentary on Ephemeral Messaging, 22 Sedona Conf. J. 435, 446-48 (2021); The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1, 15 (2019); Philip Favro & Keith Call, A New Frontier In eDiscovery Ethics: Self-Destructing Messaging Applications, Utah Bar Journal (Mar/Apr 2018).
ESI is wholly synonymous with the term “electronically stored information” that is defined in the 2006 advisory committee note to Federal Rule of Civil Procedure 34(a). ESI includes any type of electronic information or data that may be stored or kept in any type of repository or in any method or form.
References: Fed. R. Civ. P. 34(a) advisory committee’s note to 2006 amendment; Philip J. Favro, Navigating The Discovery Chess Match Through Effective Case Management, 53 Akr. L. Rev. 31, 35-36 (2019).
Instant Messaging refers to technologies that offer users instantaneous real-time written, audio, and video communications. Depending on who is using the term, Instant Messaging may colloquially describe any number of communication mediums. Instant Messaging could include online chat applications like Google Chat and Yahoo! Messenger; previous generation Workplace Collaboration Tools like Microsoft Lync and Skype; consumer Text Messaging applications like iMessage, Signal, and WhatsApp; or messaging applications offered by Social Media providers such as Facebook Messenger and Twitter Direct Messages.
References: DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839, 885 (N.D. Ill. 2021); Franklin v. Howard Brown Health Ctr., No. 1:17 C 8376, 2018 WL 4784668, at *4–5 (N.D. Ill. Oct. 4, 2018); report and recommendation adopted, 2018 WL 5831995 (N.D. Ill. Nov. 7, 2018); The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1, 10-14 (2019).
Local ESI refers to ESI that is stored on computers, servers, or other devices or repositories that are not web-based or online.
Reference: DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839, 882-85 (N.D. Ill. 2021).
Personal Cloud Applications offer consumers a variety of turnkey services to enhance personal computing and individual technology choices involving ESI short of having to acquire expensive computer hardware and software. Those services range from increased storage for digital photos, music, and files; access to software platforms; and transfer functionality that enables users to seamlessly move Cloud ESI between computers, smartphones, and other devices. Employees and executives have also used Personal Cloud Applications at work as these applications may obviate clunky network storage options and can simplify data sharing and teamwork among colleagues. Examples of Personal Cloud Applications include Dropbox, Box, and Google Drive.
References: Frisco Medical Center, L.L.P. v. Bledsoe, 147 F.Supp.3d 646, 652 (E.D. Tex. 2015); Toyota Indus. Equipment Mfg., Inc. v. Land, No. 1:14–cv–1049–JMS–TAB, 2014 WL 3670133, *3 (S.D. Ind. July 21, 2014); Philip Favro, Addressing Employee Use of Personal Clouds, 22 Rich. J.L. & Tech. 6 (2016).
Social Media is a broad term encompassing applications and platforms that enable sharing and exchange of information including written content, links, emojis, images, Gifs, and videos. Social Media includes social networking and electronic bulletin board sites (Facebook, Twitter, and LinkedIn), chat rooms (Reddit), photo-sharing sites (Instagram and Flickr), and video-sharing sites (YouTube). Social Media also includes Text Messaging functionality offered by Social Media providers such as Facebook Messenger and Twitter Direct Messages.
Reference: The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1, 10-14 (2019).
Text Messaging refers to any of the variety of applications that enable users to exchange communications through mobile devices or computers. Sometimes colloquially referred to as Instant Messaging, Text Messaging includes basic messages (referred to as “short message service” or “SMS”) or messaging with enhanced features (referred to as “over-the-top” or “OTT” applications) including the ability to send images and video, the use of emojis and effects, and in some instances E2E Encryption. Examples of Text Messaging applications include iMessage, Signal, WeChat, and WhatsApp, as well as messaging applications offered by Social Media providers such as Facebook Messenger and Twitter Direct Messages.
References: Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 233–36 (D. Minn. 2019); Brooks Sports, Inc. v. Anta (China) Co., Ltd., No. 1:17-cv-1458, 2018 WL 7488924 at *18 (E.D. Va. Nov. 30, 2018), report and recommendation adopted, 2019 WL 969572 (E.D. Va. Jan. 11, 2019), judgment modified, 2019 WL 969569 (E.D. Va. Feb. 5, 2019); The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1, 12-14 (2019).
Workplace Collaboration Tools are a next generation technology for certain Instant Messaging tools and are generally designed to allow users to work more collaboratively through written messaging, file-sharing, audio calls, and video calls. Workplace Collaboration Tools are web or cloud based, meaning data is stored on third party Enterprise Cloud Applications or platforms. Microsoft 365, Slack (now owned by Salesforce), Google Workspace, and Zoom are some of the most commonly used Workplace Collaboration Tools.
References: Red Wolf Energy Trading, LLC v. Bia Cap. Mgmt., LLC, — F. Supp. 3d —, 2022 WL 4112081 (D. Mass. Sept. 8, 2022); Philip Favro, Slack Discovery: Key Issues and Challenges, Practical Law The Journal (2022).
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