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?

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