November 27, 2021

Volume XI, Number 331

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November 24, 2021

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Ephemeral Messaging Apps in the Workplace: Think Twice Before You Send that Snap!

Ephemeral Messaging Apps (“EMAs”) are a subset of Messaging Apps that allow users to cause messages (words or media) to disappear on the recipient’s device after a short duration. The duration of the message’s existence is set by the sender. Messages can last for seconds or days, unless the receiver of the message takes a “screenshot” of the message before it disappears.

Snapchat is by and far the most popular EMA. Those who know it, love it – and use it frequently. But if you’re thinking about using EMAs in the workplace, you might want to hold off. Here’s why.

When litigation is reasonably anticipated or ongoing, a party is generally obligated to suspend its routine document-retention-and-destruction policy and promptly place a litigation hold. During litigation, a party may seek to discover electronically stored information (“ESI”) that is relevant to a claim or defense. Pursuant to the Federal Rules of Civil Procedure, ESI must be produced in a form “in which it is ordinarily maintained or in a reasonably usable form.” Fed.R.Civ.P. 34(2)(E)(ii).

But how can a party reasonably comply with the rules governing ESI discovery and preservation and avoid sanctions if the information is, by its very nature, temporary? Fed.R.Civ.P. 26(b)(2)(b) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Note also that the 7th Circuit’s Electronic Discovery Pilot Program provides that “ephemeral data” is among the categories of ESI that “generally are not discoverable in most cases.” Of course, “most cases” does not mean all cases and the court may still order production of EMA data. See Doe v. Purdue, et al., NO.: 2:17-CV-33-JPK (N.D. Ind. July 2, 2021) for one such case: https://app.ediscoveryassistant.com/case_law/34896-doe-v-purdue. In Purdue, a civil rights case, Plaintiff was sanctioned for misrepresenting to the Court that his Snapchat account contained no substantive data and for deleting 11 snaps that he had saved previously as “memories” within the Snapchat application.

Morals of the story: understand how EMAs work; when responding to discovery, determine whether there is relevant data saved within an EMA application; and when propounding discovery, remember to ask about EMAs if applicable to your case.

Lynne Hewitt, and Maryann Mahoney also contributed to this article.

©2021 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 238
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About this Author

Lydia A. Gorba Litigation Attorney SMGG Law
Associate

Lydia A. Gorba is an Associate Attorney with Strassburger McKenna Gutnick & Gefsky practicing primarily in civil litigation. Lydia has experience handling a variety of matters, including personal injury, premises liability, real estate litigation, and insurance defense.

Lydia believes that building a relationship with each and every client is the necessary foundation to handling any type of case. She values communication and will not leave you wondering about the status of your case.

Lydia began her legal career at...

412-281-5423
Gretchen E. Moore Litigation Attorney Strassburger McKenna
Shareholder

Gretchen E. Moore is a shareholder and Vice President at Strassburger McKenna Gutnick & Gefsky. She has been with the firm since 2004 and also serves as co-chair of the firm’s Litigation Practice Group. Ms. Moore’s practice focuses on commercial and civil litigation and municipal law with an emphasis on contracts, construction, fraud and breach of fiduciary duty.

Ms. Moore practices in state and federal courts, before administrative boards and in arbitration and mediation proceedings. She represents municipalities in land use, zoning,...

412-281-5423
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