A new law review article got me thinking about an area at the vanguard of e-Discovery: ephemeral messaging.

In her article Disappearing Data in the Wisconsin Law Review, Toledo Law Professor Agnieszka McPeak considers the intersection of recent trends toward data privacy, the use of ephemeral messaging applications (e.g., Snapchat and Wickr), and the broad scope of discovery under the Federal Rules of Civil Procedure. Professor McPeak advocates for a balanced approach to the preservation of ephemeral data. Unfortunately, Professor McPeak offers little in the way of specific solution other than continuing the Federal Rules’ trend toward reducing or eliminating sanction for the good-faith deletion of ESI.

The absence of specific proposals is so disappointing because as, Professor McPeak notes, the use of ephemeral messaging is exploding. And, it is not just among individuals. The high-profile trade secrets appropriation litigation between Waymo and Uber, for example, contains allegations that Uber used the ephemeral messaging application “Wickr” to minimize its paper trail. Waymo LLC v. Uber Technologies, Inc., No. C 17-939, 2018 WL 646701 (N.D. Cal. Jan. 30, 2018). The trial court declined to issue sanctions or an adverse inference instruction based on these allegations, but it held that Waymo could address it at trial as part of explaining gaps in the evidence.

The $64,000 question, of course, is how Waymo will use this issue and how Uber will explain it. While there are legitimate business reasons for using ephemeral messaging (privacy being only one), it is also reminiscent about the old quip to never write what you can say, speak what you can nod, and nod what you can wink. As a result, how the parties and the trial court address this issue going forward will provide a fascinating example for the many cases sure to follow.

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