Facebook. Photo: Shutterstock

In a post to Facebook, the platform's founder Mark Zuckerberg outlined a vision of the future that includes end-to-end encryption and an ephemeral lifespan for private messages and photos.

For users running out of room in the closet for the skeletons of youthful indiscretions past, this is potentially a very good thing. But it could be much less so for e-discovery professionals and the lawyers responsible for collecting relevant information before it slips into oblivion.

“The biggest problem is how are we going to train lawyers [and] how are they going to train their clients to preserve it?” said attorney and forensic technologist Craig Ball.

The details surrounding Facebook's ephemerality push weren't presented in concrete terms, but Zuckerberg's post indicates that there could be a default timeframe for the deletion of private messages that users could customize as needed by minutes, weeks or years.

If left unchecked during litigation, those settings could potentially jeopardize discovery—and the courts might not be inclined to forgive and forget. Ball compared it to the early days of email when retention capabilities were limited and people would rig their inbox to auto-delete as a matter of practicality.

“A lot of people got into hot water or at least had to try to extricate themselves from hot water because they failed to disable the auto-delete, auto-purge function of their email collections,” Ball said.

The relationship between e-discovery and social media hasn't always been an easy one. While most people might stop to consider that the photo of that epic keg stand from college may not play well to a potential employer, the possibility that any of that material could one day accrue legal significance is perhaps a bridge too far.

“People don't really have an appreciation for social media being evidence and so people will on occasion just delete things, not thinking they are doing anything bad,” said Mary Mack, executive director of the Association of Certified E-discovery Specialists (ACEDS).

Sometimes the elimination of key evidence is entirely inadvertent. Mack gave the example of someone attempting put their social media account on a temporary pause and accidentally erasing the whole thing instead.

For lawyers, ensuring that clients don't jeopardize key evidence  could potentially necessitate a crash course in Facebook for Dummies. Ball thinks that courts are unlikely to be sympathetic to social mishaps, especially if attorneys fail to instruct clients to adjust whatever settings Facebook might put into place to control ephemeral messages.

The context of those incidents could also be critical. Ball gave the example of a group of high school students using ephemeral messaging to communicate on Facebook versus a group of corporate executives or politicians.

“If you see it becoming evasive behavior I don't think the fact that its ephemeral or not is going to have much influence on the courts. They're going to say we smell perfidy here,” Ball said.

One potential saving grace? The legal obligation to preserve still only applies to data that exists as of the date of your duty to preserve. Kelly Twigger, an attorney and CEO of eDiscovery Assistant, thinks that ephemeral messages might encourage lawyers to keep an eye on their calendars.

“We're surmising at this point but you might start to see, you know, a lot more attention paid to what is the date that the duty to preserve arises,” Twigger said.