Ephemeral messaging apps, which automatically erase users’ messages in a short time, are being used more than ever in the workplace. Given the copious amounts of data these apps generate, it’s already having a significant effect on e-discovery and the legal field.
This new form of communication hasn’t diminished attorneys’ ethical and legal obligations. Feigning naïveté about ephemeral messaging isn’t a valid excuse, and actual enforcement of reasonable use policies is a key consideration.
In two recent examples, JP Morgan Chase & Co. paid a $125 million penalty and was forced to enact robust improvements to its compliance policies and procedures after failing to maintain and preserve written communications. And Goldman Sachs terminated high-level employees for communicating about firm business on non-approved channels.
With those cases in mind, here are key recommendations law firms and corporations should be considering when it comes to the collection and handling of ephemeral messaging apps in e-discovery.
Corporate policies should be reviewed and updated. Carefully consider your current data retention, acceptable use, and bring-your-own-device policies. Ensure you’re considering risk, defensibility, costs, burden, and enforcement of these policies.
Data mapping is crucial for 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 isn’t sufficient.
Understand your ethical and legal obligations. These new applications are being created daily and pose serious challenges and risks.
Self-collections give rise to the question of accuracy and completeness. This increases the importance of having counsel engage a seasoned forensic expert on the team to understand how tools are being used, as these applications can be everything from messaging apps, structured data, mobile games, video applications, and payment processers.
Regulators and the plaintiffs’ bar are more sophisticated, embracing technology, and asking about these data sources more than ever. The need for context around chat communications is creating differing approaches from reviewing data via single messages, 24-hour transcripts, 48-hour transcripts, or based on six-hour breaks in conversation.
Clients are more knowledgeable about e-discovery processes and more cost-conscious than ever. Not having a defensible and cost-conscious strategy creates client management issues.
There’s greater scrutiny in the data preservation and collection process, so it’s more important than ever to collaborate with your forensics experts and plan accordingly.
The use of these apps poses a real challenge to legal teams. Failure to catch up, get competent, and engage experts presents real risks from a sanctions perspective and client-relationship standpoint.
Raakib Bhuiyan, Andy Kim, and John Del Piero dissect how law firms and corporations should handle data collection for ephemeral messaging apps.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.