Courts, as well as lawyers and in-house counsel, are struggling with how to apply litigation hold and document management policies with the realities of the many and varied modes of communication. One mode of communication increasingly used in both personal and business contexts is ephemeral messaging. Enormously popular apps such as Wickr, Signal, Wire, WeChat and Confide provide users with the ability to communicate in real time and to set messages to be deleted soon after they are read—often in a matter of seconds.

Are these apps more like voice communications, which similarly are delivered, but which (unless recorded), cease to exist after they are received? Or are they more like emails and "traditional" text messages, which are stored on devices and servers until they are deleted? Or something in between? And how should ephemeral messages be considered by courts when those communicating are aware that their communications could be of interest to a party on the other side of a lawsuit, and the opposing party contends that their loss was an act of spoliation?

The recent case of Herzig v. Ark. Found. for Med. Care, 2019 WL 2870106 (W.D. Ark. July 3, 2019), is one of the first of which we are aware that addresses the issue of ephemeral messaging and spoliation. The court there found that the use of the ephemeral messaging app Signal was evidence of bad faith sufficient to warrant sanctions. But the court's analysis unfortunately does not apply Federal Rule of Civil Procedure (FRCP) 37(e), which was adopted to address the issue of how a claim of spoliation should apply to electronically stored information (ESI). Nor does it, in our view, sufficiently grapple with the question whether ephemeral messaging is sufficiently analogous to voice communications that it is unfair to find use of one mode of communication to be perfectly reasonable, but the other to be evidence of bad faith spoliation worthy of sanction.

'Herzig'

The plaintiffs in Herzig alleged that they were wrongfully terminated from their employment as a result of age discrimination by the defendant employer Arkansas Foundation for Medical Care (AFMC). During a meet and confer, the parties "agreed that AFMC might request data from Herzig and Martin's mobile phones and that the parties had taken reasonable measures to preserve potentially discoverable data from alteration or destruction." Id. at *4. After initial communications in which one of the plaintiffs denied he had responsive documents, the other plaintiff produced screen shots of text messages between the plaintiffs, and a motion to compel led to the production of additional responsive text messages. Thereafter, the plaintiffs began using Signal to communicate with each other and with AFMC's Manager of Security; they set the app to automatically delete their communications. See id. Toward the end of discovery, during Herzig's deposition, AFMC learned of the plaintiffs' continued communications via Signal. The plaintiffs indicated that they used Signal only to schedule meetings with each other or with counsel and that they "no longer had any text message communications responsive to AFMC's request for production." Id. AFMC filed a motion for dismissal or adverse inference due to spoliation of evidence as well as a motion for summary judgment.

The Court Imposes Sanctions for the Use of Ephemeral Messaging (but Fails To Apply FRCP 37(e)). When the spoliation issue was presented to the court, AFMC argued that the plaintiffs "intentionally acted to withhold and destroy discoverable evidence by installing and using the Signal application on their mobile devices." Id. The plaintiffs responded by arguing that they were only required to produce communications responsive to AFMC's requests for production, not all of their communications, and that AFMC had failed to demonstrate that they "had responsive communications using Signal or that the destruction of those communications was in bad faith." Id. The court rejected the plaintiffs' arguments and concluded that it could "infer[] that the content of their later communications using Signal were responsive[.]" Id. at *5. The court reached this conclusion even though the communications took place after the lawsuit had begun. After noting that "Herzig and Martin did not disclose that they had switched to using a communication application designed to disguise and destroy communications until discovery was nearly complete[,]" id., the court wrote that it would base its inference on the responsiveness of the plaintiffs' previously produced communications and on the plaintiffs' reluctance to produce those communications.

The court then found that the plaintiffs withheld and destroyed the "likely-responsive communications" intentionally and in bad faith. In reaching this determination, the court considered "Herzig and Martin's familiarity with information technology, their reluctance to produce responsive communications, the initial misleading response from Martin that he had no responsive communications, their knowledge that they must retain and produce discoverable evidence, and the necessity of manually configuring Signal to delete text communications." Id. The court found that the conduct warranted sanctions, although the question of the appropriate sanction became moot when the court granted AFMC's summary judgment motion. The court relied on its inherent authority to issue sanctions, noting that, "[a]side perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence." Id. at *1.

Other than a passing mention in the defendant's reply brief, the parties' briefs did not discuss FRCP 37(e). Perhaps as a result, in its opinion the court did not analyze the potential spoliation of ESI with reference to—or even a mention of—FRCP 37(e). Rule 37(e) was put in place in 2015 specifically to address the spoliation of ESI. The relevant Advisory Committee Notes state that the 2015 amendments to FRCP 37(e) were designed to reduce the burden on litigants who were devoting "excessive effort and money on preservation in order to avoid the risk of severe sanctions" in part related to the fact that federal circuits had "established significantly different standards for imposing sanctions or curative measures" based on the failure to preserve ESI. The Notes make clear that FRCP 37(e) was designed to "foreclose[] reliance on inherent authority or state law to determine when certain measures should be used."

It is not clear whether the application of Rule 37(e) would have led to a different result here, but a strict application would have required the court to evaluate—before deciding whether sanctions are appropriate—whether the information lost could have been discovered through other means, such as depositions. Only after conducting that analysis would Rule 37(e) authorize a court to impose curative measures "upon finding prejudice to another party from loss of the information" or certain sanctions "only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation."

Spoliation and Ephemeral Messages. Another fundamental issue in Herzig is the court's reasoning about ephemeral messaging applications. Some practitioners and experts argue that Signal and similar apps are no different from phone calls and in-person conversations and that there are other discovery methods—such as depositions—that can be used to test whether the parties have relevant information. Others take the court's view—if an employee or litigant has multiple modes of communication, the deliberate use of an alternative mode like Signal should be considered strong—if not definitive—evidence of an intent to withhold evidence. That same view was adopted in the initial version of the U.S. Department of Justice (DOJ) FCPA Corporate Enforcement Policy, which provided that corporations could qualify for cooperation credit only if they banned the use of personal and ephemeral messaging applications. This was challenged as applications like Signal, WhatsApp, and WeChat are increasingly used in business and personal communications. The DOJ relented, revising the Policy to allow cooperation credit if a company takes steps to "implement[] appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company's ability to appropriately retain business records or communications[.]"

Conclusion

The use of ephemeral messaging applications raises important questions about what kinds of evidence parties are obligated to preserve in the context of a litigation. If, even after a litigation is underway, parties cannot communicate with each other using an ephemeral messaging application without an adverse inference or finding of spoliation, what then of an attorney's advice not to put communications in writing, or to communicate only via phone or in person? Is such advice also grounds for such a finding of bad faith, an adverse inference, or for sanctions? If not, should courts view the use of ephemeral messaging applications with such skepticism, when the use of functionally equivalent, traditional modes of communications go unquestioned? Whatever the precedential value of Herzig given the court's failure to apply FRCP 37(e), courts will be confronting these questions with increasing frequency as the use of these applications becomes even more prevalent.

Christopher Boehning and Daniel J. Toal are litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison. Steven C. Herzog, counsel, Ross M. Gotler, e-discovery counsel, and Lidia M. Kekis, e-discovery attorney, assisted in the preparation of this article.