Published on Nov 30, 2017 One of the most significant lawsuits in the country involves a key eDiscovery issue of which counsel and clients should be aware: the dangers of using self-destructing messaging applications.
The litigation in question – Waymo v. Uber – involves tech titans Google (Waymo) and Uber, which are battling over the future of self-driving vehicle technology. Waymo (Google’s autonomous vehicle unit) claims Uber stole its self-driving vehicle technology in order to develop its own fleet of autonomous vehicles.
Discovery in Waymo has been contentious, with Waymo accusing Uber on multiple occasions of hiding relevant information. The most recent accusation was leveled this week, with Waymo obtaining a trial continuance to ferret out whether Uber used self-destructing messaging applications and other furtive tactics to conceal relevant evidence from Waymo.
The information came to light only after officials from the U.S. Attorney’s Office shared a letter from a former Uber employee’s lawyer that detailed the alleged scheme. The court was apoplectic over Uber’s failure to disclose the letter during the course of discovery, declaring that the company “should have come clean with this long ago.”
Self-Destructing Messaging Applications
While it’s easy to get caught up in the explosive nature of the allegations, one of the practical eDiscovery lessons from Waymo is the need for lawyers and litigants to understand the nature of self-destructing messaging applications and the peril they present for information governance programs and in litigation.
By way of background, self-destructing messaging applications enable users to share and then delete content within a particular time (ranging from minutes to days) after receiving the message. Different applications offer a menu of competing features. They include the ability to control distribution of messages (to a small group versus a community of users), message encryption, private messaging capability, prevention of screenshots, untraceable messages, and removal of messages from others’ devices. Common self-destructing messaging applications (also referred to as disappearing or ephemeral messaging) include Wickr and Signal (the apps Uber used), along with Snapchat and Confide.
Some commentators previously cautioned against the use of these apps, yet it was The New York Times that recently spotlighted their increasing use and the challenges they present for federal regulators, government retention laws, and company retention policies. Indeed, because exchanged content disappears, the use of these applications circumvents regulatory retention requirements and information governance programs.
In like manner, litigants who use self-destructing apps after a duty of preserve has attached may deprive adversaries of relevant evidence. This is particularly the case with apps like Confide, which obliterates message content as soon as the user closes the message. Indeed, the fact that a communication even transpired, i.e., the date of the message and the parties who exchanged it, is apparently eliminated. Speculation is rife – even by the court – that this may be why Uber turned to Wickr and Signal: so that any discussion of alleged trade secret theft would be forever concealed.
Getting in Front of the Problem
For lawyers wary of an “Uber” problem among their clients, they should take proactive steps to ensure clients are not using self-destructing apps. Prior to any litigation, counsel can advise their clients that these apps will violate regulatory retention requirements and circumvent records retention programs. Simply put, they create an appearance of impropriety, i.e., that the client had something to hide.
This is the antithesis of effective information governance. IG measures such as data mapping, records retention protocols, and litigation hold procedures require transparency by policy and in user practices. Banning the use of these apps will only serve to promote such transparency and further good information governance hygiene. Furthermore, it will aid the client in discovery if litigation should transpire.
Once in litigation, lawyers should again take steps to ensure that clients are not using these apps. One such measure should include the addition of self-destructing messaging apps to the litigation hold checklist. The purpose of this inclusion is two-fold: to ascertain whether relevant information was exchanged on these apps and to prevent their further use. As the Waymo litigation suggests, any use of self-destructing apps may give rise to spoliation allegations. This will result in litigation delays and increased fees, even if a spoliation assertion turns out to be groundless.
Taking these and other measures should help clients avoid the troubles that could very well transpire if they persist on using self-destructing messaging apps.
