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Special to the DCN: Ephemeral data and eDiscovery

Special to the DCN: Ephemeral data and eDiscovery

Ephemeral data is data that only exists for a short period of time and is often referred to as “self-destructing” or “disappearing” messages.

Commonly used applications that offer this functionality include Slack, WhatsApp, Telegram, WeChat and Snapchat.

In recent years, the use of ephemeral communications technology has become increasingly popular in organizations across all industries, including the construction sector.

In addition to corporate sanctioned messaging applications, employees may also use these types of messaging applications on their personal devices to communicate about work.

Organizations considering adopting ephemeral messaging practices should take note of the potential risks and benefits.

There are several benefits to organizations in using ephemeral messaging tools, including data security and privacy by design obligations under privacy frameworks such as the European Community General Data Protection Regulation.

Further, ephemeral messaging also allows organizations to reduce the volume of unnecessary data retained, consequently lowering the costs associated with storage, information security and eDiscovery.

Risks and eDiscovery implications

While ephemeral messaging offers substantial benefits to organizations, it does not come without risks.

Certain regulated industries and the public sector may face information governance concerns from the use of ephemeral messaging.

For the construction sector, the bigger concern is preservation and spoliation risks in litigation or arbitration.

Organizations have a legal obligation to preserve potentially relevant evidence when litigation has commenced or is reasonably anticipated.

Organizations that utilize ephemeral messaging run the risk of failing to meet their discovery obligations where automatic deletion is not disabled.

There is currently little case law directly discussing parties’ obligations around ephemeral data.

In a recent U.S. case, WeRide Corp. vs. Huang, the court ordered sanctions due to a company’s deliberate use of ephemeral messaging to evade discovery obligations after litigation commenced.

Guidelines for the use of ephemeral data

The Sedona Conference, a U.S.-based think-tank on the study of law and policy, via its Working Group 6, recently published commentary on the use of ephemeral messaging.

The commentary provides several recommendations to organizations using ephemeral messaging tools.

These include:

  • Organizations should have a thought-out data retention scheme, complementing the use of ephemeral messaging, that defines a maximum storage time and the purposes it may be used for;
  • Organizations should employ an organization-wide application for ephemeral messaging to avoid employees using an unapproved service that does not meet the security standards;
  • Organizations should use ephemeral messaging technologies that offer legal-hold functionality, and develop a standard procedure for internal use; and
  • Organizations should provide training to their employees on policies regarding the use of ephemeral messaging.

Candice Chan-Glasgow is director, review services and counsel at Heuristica Discovery Counsel LLP, which has offices in Toronto and Calgary. It is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.

Shadab Khan is a Law Practice Program student at Heuristica Discovery Counsel LLP.

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