Thursday, December 5, 2013

Jason Atchley : Kroll Ontrack : CHANGING THE FEDERAL RULES: COMMENTARY OPENS, ADVOCACY THRIVES


frcp
Who should bear the burden of showing prejudice (or a lack thereof) as a result of spoliation? The innocent party or the spoliating party? This vexing catch-22, which requires proof of what isn’t there, has not only lead to some of the most recognizable ediscovery case law in the country (See Zubulake; Pension Committee)but remains a major obstacle in the Advisory Committee’s path to amending the Federal Rules by 2015.  To put it bluntly, if draft rule 37(e) went effective today, it would overrule Sekisui and fly in the face of one of the most prominent ediscovery judges in the world’s stance on this very issue. Add fierce advocacy from large companies who are struggling to tread water in seas of ESI and one can see that while we’re almost three years into the rulemaking process, the finish line might not even be in sight.
November 7th marked the first of three public hearings aimed at proposed ediscovery amendments to the Federal Rules of Civil Procedure. Preliminary draft rules 26 and 37 stole the spotlight during the first public hearing in DC, and lobbyists minced words over what verbiage will appropriately curb over-preservation woes without going too far.
Let’s take a look at which amendments are still on the table, and where the arguments lie:
Proposed Rule 26 moves the proportionality factors of Rule 26(b)(2)(C) to the forefront of parent Rule 26(1).  A party’s ability to “obtain discovery” is now clearly conditioned on proportionality, akin to relevancy or lack of privilege.
  • Plaintiff’s Point: Bringing the proportionality factors of 26(b)(2)(C) to 26(1) and using the word “proportional” in the rule goes too far. It sends a clear message to courts that they can deny discovery and will breed early motion practice. This will present a substantial obstacle to individual plaintiffs attempting to assert a claim, especially where extensive discovery may be necessary to vindicate their rights (e.g., employment law).
  • Counterpoint: These minor changes will not shift the balance of discovery because these factors already appear in the Federal Rules. Further, any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g).
Proposed Rule 37(e) removes the traditional verbiage of the ‘safe harbor’—instead if any party fails to preserve information in “anticipation or conduct of litigation,” a court may issue basic sanctions like further discovery, curative measures, or an order to pay expenses associated with the failure. However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions, like an adverse inference instruction, become available. These more potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.” Courts are directed to consider five familiar factors (e.g,. proportionality, reasonableness) in making this determination.

Jason Atchley : Kroll Ontrack : UNIFY. CLARIFY. SIMPLIFY. MANAGE YOUR ENTIRE EDISCOVERY PORTFOLIO.


manage your entire ediscovery portfolio
Since ediscovery began, data has been collected, reviewed and produced individually, disconnected from any other ediscovery projects. Ironically, many ediscovery projects would benefit from leveraging other projects’ work and data collection. But when it comes to vetting the viability of emerging IT-Law solutions that promise to cut through the clutter, sometimes showing is better than telling. Check out the video clip below to see our friend Josh Gilliland’s (the legal mind behind bowtielaw.com) first impression of Ediscovery.com Manage:
Beyond proving that distance never stands in the way of two lawyers who want to geek out about ediscovery, the clip offers a great crash course into exactly what can be gained by a adopting a new, holistic approach to managing your entire ediscovery portfolio. Ediscovery.com Manage offers:
  • Transparency into the entire ediscovery portfolio—Ediscovery.com Manage provides full insight into granular project details like project and custodian data volumes
  • Real-time financials— organizations can explore, compare, and contrast ediscovery spend data across all cases in their portfolios
  • Structured and efficient collaboration—leveraging the power of social media, Ediscovery.com Manage centralizes all case communication in one project wall, providing instant access to project status and developments for the entire team
For a deeper dive into multi-matter management, see the ESI Report’s latest podcast, “Reduce, Reuse, Recycle: Effectively Managing E-Discovery Portfolios.” Also, check out this Ediscovery Manage Demo to see just how transparent ediscovery can be.

Jason Atchley : Kroll Ontrack : STAY AHEAD OF THE CURVE WITH THE EDISCOVERY.COM PULSE BENCHMARKS


ediscoverycom pulse benchmarks
At this point, it is probably safe to assume that almost everyone has some concept of “big data” and thechallenges that data proliferation pose for ediscovery. This blog alone has discussed the big data explosion (in some form or another) at least a dozen times in the past year, and the message is relatively clear: Big data equals big headaches for unprepared practitioners.
…But what if I told you that practitioners are actually keeping up with the challenges posed by big data, that I have the evidence to back up those claims, and that now you do, too
Preposterous, I know, but I’m not making any of this up! Kroll Ontrack’s ediscovery.com Pulse offers hard data which shows that sophisticated ediscovery tools have allowed lawyers to keep pace with big data without sacrificing efficiency.
If you are new to ediscovery.com Pulse, here’s a quick primer: Kroll Ontrack gathered data from thousands of ediscovery projects from 2008 to the present and normalized that data to identify key trends in statistically relevant metrics. These trends offer benchmarks that can help practitioners better plan and execute their own ediscovery projects. In addition to these benchmarks, ediscovery.com Pulse offers industry-relevant articles, case summaries, an interactive ediscovery rules map, and a swarm of other features to help you keep your finger on the pulse of ediscovery.
With the launch of ediscovery.com, Kroll Ontrack released its first five benchmarks. Here are the findings:
  1. Overall, the average number of both source gigabytes and produced gigabytes has declined.
  2. The total number of gigabytes processed, reviewed and produced are decreasing, while the ratio of pages produced to pages reviewed remains steady at one to four.
  3. The number of custodians collected per project in 2012 was half the number of custodians collected in 2008
  4. Despite an increase in the number of sources of electronically stored information, about 65% of the data processed today is email—up from 50% in 2008.
Generally speaking, these metrics suggest that savvier professionals are combatting big data using more robust tools for filtering and analysis and experiencing great success. While Kroll Ontrack expects the percentage of source data that is email to keep increasing, the metrics also indicate that source gigabytes, produced gigabytes, and the total number of gigabytes from processing through production will keep decreasing while parties continue to produce about 25% of the documents loaded for review.
Finally, here’s the best part: Kroll Ontrack is just getting started with  ediscovery.com Pulse. In the coming months, new benchmarks and features will be released, so stay tuned to theediscoveryblog.com for alerts and updates!

Jason Atchley : Kroll Ontrack : MEET BIGCO: A COMPANY WITH BIG DATA PROBLEMS


by ERIC ROBINSON on NOVEMBER 27, 2013


big data problems
BigCo makes a point to save all of its information… somewhere… but if you’re looking for something in particular, they’d probably have to check with IT. This part of the story may sound pretty familiar, but the end might not be, and that’s because BigCo’s lawyers finally spoke up:
See “Big Data” is kind of like Miley Cyrus—it’s not going anywhere and apparently wrecking balls don’t help (hyperlink intentionally omitted). Like most things related to ediscovery project management, any successful solution must be saturated with forethought. For those of you willing to address the elephant in the room, here are some resources that show just how BIG our little big data problem has gotten, and what lawyers are doing to win the war:
  • This interpretation of Gartner’s 2013 Big Data survey results highlighted that while 64% of organizations have invested or plan to invest in Big Data in 2013, a paltry 8% have actually taken action
  • With particular respect to Big Data’s effects on ediscovery project management, ediscovery.com Pulse tracks a number of key benchmarks that legal professionals can compare their spend to. For example, in Kroll Ontrack’s projects, the average the number of custodians used as a collection source has declined from almost 70 in 2008 to just over 20 in 2012 (that’s over a two-fold reduction in 4 years (thanks technology!))—how many custodians did you collect from in your last project?
  • This blog post stresses the extraordinary impact unstructured data is having on litigation management, and what it means for lawyers struggling to cope with a corpus rich with this form of electronically stored information (ESI)

Jason Atchley : Kroll Ontrack : TOP 5 EDISCOVERY CASE SUMMARIES – DECEMBER 2013


Read the very latest ediscovery case law summaries

COURT FINDS “TRIANGULATION” APPROACH TO EDISCOVERY “REASONABLE”—TO AN EXTENT
BANAS V. VOLCANO, 2013 WL 5513246 (N.D. CAL. OCT. 4, 2013).

COURT ORDERS SEIZURE OF HARD DRIVE TO PRESERVE SELF-IDENTIFIED HACKER’S ESI
BATTELLE ENERGY ALLIANCE, LLC V. SOUTHFORK SEC., INC., 2013 WL 5637747 (D. IDAHO OCT. 15, 2013).

COURT ALLOWS THE PRODUCTION OF POLICE REPORT METADATA TO CRIMINAL DEFENDANT 
UNITED STATES V. TUTT, 2013 WL 5707791 (E.D. MICH. OCT. 21, 2013).

EMPHASIZING THE NEED TO COOPERATE, COURT ALLOWS “DISCOVERY ABOUT DISCOVERY”
RUIZ-BUENO, III V. SCOTT, 2013 WL 6055402 (S.D. OHIO NOV. 15, 2013).

IMPROPER PRESERVATION AND UNTIMELY DISCLOSURES LEAD TO HEAVY SANCTIONS
DIGITAL VENDING SERVS. INT’L, INC. V. UNIV. OF PHOENIX, INC., 2013 WL 5533233 (E.D. VA. OCT. 3, 2013).

Jason Atchley : Kroll Ontrack : THE MOST CRITICAL DECISION: WHO DO WE WORK WITH AND HOW DO WE START?


by JEN WIGHTMAN on DECEMBER 5, 2013

most critical decision
Perhaps the most critical point of time in an ediscovery matter is when the attorneys and litigation teams learn ediscovery will play a significant role in the case. Whether the red flag comes from a client’s dust-coated legacy email system, or from a haystack of Electronically Stored Information (ESI), three basic paths lie ahead: team up with a software or service provider, start identification and collection using in-firm or in-house resources, or just sit and think for a second.
For most cases and teams, the first two options are often (and should be) foreclosed due to a lack of knowledge about ediscovery, technology, vendor pricing, or the case at hand. Instead, they opt for choice three, until they know enough to make a well-informed decision.
While this may seem perfectly ordinary, when you revisit this ediscovery purgatory every single case, it also becomes painstakingly inefficient.[1] One way around this “hurry-up and wait” game is to plan ahead – invest in technology and people that are “at the ready” should ediscovery ensure. To learn more, visit ediscovery.com to see how you can address these massive inefficiencies and transform your ediscovery practices from an art to a science.

Thursday, November 14, 2013

Jason Atchley : Kroll Ontrack : Kroll Ontrack Named a Leader In the Gartner Magic Quadrant for E-Discovery Software


Kroll Ontrack has been positioned by Gartner, Inc. in the Leaders Quadrant of the 2013 Magic Quadrant for E-Discovery Software.
The market covered by this Magic Quadrant contains vendors of e-discovery software for the identification, preservation, collection, processing, review, analysis and production of electronically stored information (ESI) in support of the common-law discovery process for litigation, regardless of deployment method.

2013 Gartner Ediscovery Magic Quadrant


"It is an honor to be recognized by Gartner as an industry leader. We believe our position as a Leader in the Gartner Magic Quadrant confirms Kroll Ontrack's vision and quest to transform ediscovery into a repeatable process that gives legal teams control and predictability, and connects best-in-class competencies through partnerships"
- Dean Hager, president & CEO, Kroll Ontrack

Wednesday, November 13, 2013

Jason Atchley : Kroll Ontrack : SERVER DATA: KEEP IT, VIRTUALIZE IT, OR DISPOSE OF IT?


by TROY RONNING

Decision2

Are you in the middle of a Microsoft® Exchange Server migration or consolidation?  If you’re not thinking about it today, you may be soon.  Whether it’s the new features that grab your attention or perhaps a simple technology refresh, everyone comes to the crossroad. How will I restore the legacy email when the request crosses the desk?  Let’s take a quick look at the options.
The first option is the keep the old Exchange server around so you can, if needed, restore the data back to the original server.  While this may seem like the simplest way to perform the task, you are in most cases left with a boat anchor taking precious data center resources.  Additionally, you need to ensure you have enough agent licenses for the new environment so you can backup the new server while still being able to restore the old server.
The next option is migrating the physical machine to virtual, if it‘s not already, so you can spin up the virtual machines as needed.  While this is a great way to save space in the data center, you still have the burden of storage for the virtual machines.  The same requirements come into play with regards to the backup agents for restore purposes.  At this point flip a coin as to what is the better option.
Now let’s entertain a third option, dispose of it.  Right now you’re probably thinking he has lost his mind.  If you have a policy that allows you to dispose of it without having the requirement to restore legacy data, the decision is simple.  If you are not as lucky, dispose of it and leverage software like Ontrack® PowerControls™.  The ExtractWizard will assist you by emulating an Exchange Recovery server and Ontrack PowerControls will allow you to open the un-mounted database with full access to the item level within the mailboxes.  No upkeep and hassle free.
If you are trying to decide what to do, just know you have options.

Tuesday, November 12, 2013

Jason Atchley : Kroll Ontrack : WHAT DO ROBIN THICKE AND THE EDRM HAVE IN COMMON?


by MICHELE LANGE on NOVEMBER 11, 2013

robin thicke and the edrm

The answer: blurred lines.
…Okay, now that I have your attention, I should note that post doesn’t really have anything to do with thecontroversial and provocative Robin Thicke song that was all over the airwaves this summer. Instead, I’m talking about two equally appealing topics (at least to those in ediscovery): Early Data Assessment (EDA)and Technology Assisted Review.
We have written a lot lately about ways to cut ediscovery costs, and both EDA and TAR (or predictive coding) are keys to reducing costs and maximizing ediscovery efficiencies. While both tools empower attorneys to build a better picture of the data and documents involved in a case, TAR solutions are often viewed as wholly separate tools. However, many practitioners now employ TAR at various stages of the EDRM workflow, and TAR often performs the analysis that is so imperative to the EDA process. Practically, TAR is a complimentary tool that enhances EDA, rather than a standalone solution.
For a more critical analysis this evolution, be sure to attend Analysis 360: Blurring the Lines Between EDA and TAR on November 20, hosted by Anthony J. Diana, partner at Mayer Brown, and Jonathan Sachs, Account Executive at Kroll Ontrack.

Friday, November 8, 2013

Tuesday, November 5, 2013

Jason Atchley : Kroll Ontrack : UNSTRUCTURED DATA: THE BLACK HOLE OF EDISCOVERY


by JEN WIGHTMAN on OCTOBER 29, 2013

Big Data, Structured Data, Unstructured Data – these terms are becoming the buzzwords of ediscovery, but what do they mean?
Structured data refers to information residing inside complex applications, such as transactional and financial databases.  Data that you access in a variety of ways based on how it is presented within the application. For example you might have several similar yet distinct finance reports that hold the same structured data, but simply present it in different visual formats. Ultimately, structured data exists as segments of information inside a larger system, one that is often quite complex and contains many parts. While this type of data does continue to grow, and the format can make for challenging ESI application, it isn’t causing quite the same volume problems as we are seeing with “unstructured data”.
“Unstructured” or “loose” data might not be what you call it, but it’s what you are generally working with as ESI. These terms refer to all of the standalone, common files that make up work done every day in corporations around the world. All of those e-mail messages, word processing documents, spread sheets, and presentations, among other things—that are commonly sought as potentially relevant ESI in discovery – are considered unstructured data.
And that Unstructured Data is the harbinger of Big Data and the root cause of a 50% jump in enterprise storage volume from 2010-2012 (from 2,175 terabytes to 3,183 terabytes), as profiled in a recent infographic on ediscovery.com. But the scariest thing about unstructured data is that it’s a silent killer; most organizations don’t even know a problem exists until litigation is underway and (not surprisingly) something goes missing. Yikes.
While “Big Data” and the growing mass of “unstructured data” can make traditional manual ESI review completely cost-prohibitive, something often can be done. Predictive coding, for example, can provide a much needed backbone for unstructured data by detecting linguistic patterns in documents and ranking them according to predicted relevancy. Moreover, depending on the capabilities of a provider’s technology, it is possible for a vendor to host these unstructured documents in a cheaper “nearline” storage location, in case serial litigation summons them again.  Thus, once a document has been tethered to a custodian or date range in project once, you can leverage this information in the future. Take a look at some of theproduct demos on ediscovery.com to see how Kroll Ontrack is transforming the future of ediscovery.  Afterwards, tweet me (@J__Wightman) with ideas on how your organization is battling the Big Data Blackhole!

Jason Atchley : Kroll Ontrack : HEAR IT FROM THE EXPERTS: REDUCE, REUSE, RECYCLE


by ERIC ROBINSON on NOVEMBER 1, 2013

In case you missed it, last week’s webinar featured a rousing discussion about how to effectively manage a portfolio of ediscovery cases. Instead of focusing on how to whittle costs in one project within the EDRM, eDJ’s Greg Buckles and John Addington from Dell discuss the massive efficiencies that can only be unlocked through a holistic, multi-matter approach to ediscovery.  Log on today and listen to the recordedwebinar: “Reduce, Reuse, Recycle: Effectively Managing Ediscovery Portfolios”.
If you only have 20 minutes, then download the podcast and listen on your commute home!  John Addington from Dell talks with Michele Lange about the same topic – ediscovery portfolio management.
Don’t miss either of these great interviews!

Tuesday, October 29, 2013

Jason Atchley : Kroll Ontrack : MEET EDISCOVERY.COM


by MICHELE LANGE on OCTOBER 28, 2013 

ediscoverylogo_c


Ediscovery today is in a state of chaos – teams operate on a case-by-case basis where problems multiply daily. Clearly, a transformation taking ediscovery from an art (something that is delicately handcrafted each time) to a science (something that is predictable, reliable and efficient) is needed.  I am positively giddy because that transformation has begun with ediscovery.com!
In the typical ediscovery project, there are a multitude of problems:
  • It is nearly impossible to consolidate ediscovery projects in to one view to get the big-picture analysis that is needed for truly efficient projects.
  • There is no streamlined way to access real time financials during ediscovery.
  • There is no easy way to compare and contrast project-specific data that could be used to alter the process.
In addition, one of the largest problems in ediscovery is communication. It’s always 11th hour in ediscovery.  Does this sound familiar?
“FW: RE: RE: FW: john just stopped by my office and told me he got a voicemail that the data was ready for production!”  
If you think about it, a litigation support professional can tell hundreds of his or her Facebook friends what they ate for lunch, but communicating that ESI is ready for processing or production takes a tome of communication making War and Peace look like child’s play.
The good news – there are a few ways that these problems can be managed in the new world of ediscovery.com, which Kroll Ontrack launched today in connection with the Association of Corporate Counsel tradeshow.
  • Ediscovery.com Manage allows visibility into the entire ediscovery portfolio as opposed to individual projects across any device.
  • Ediscovery.com Review enables reviewers to conduct early data assessment, analysis, review and production in a single platform, giving real-time insight into massive data volumes.
  • Ediscovery.com Collect reduces the time and cost of identifying, preserving and collecting ediscovery data by utilizing Ontrack PowerControls.
Ediscovery.com empowers organizations to manage ediscovery as a cohesive portfolio, not fragmented individual projects while data is kept in a single place, rather than distributing data across multiple applications and personnel. This is a huge step in the right direction for ediscovery, and it is only the beginning.
Spend some time on the new ediscovery.com site and tweet me (@MicheleCSLange) a note about what you like best!  #arttoscience

Monday, October 21, 2013

Jason Atchley : Kroll Ontrack : MAXIMIZE YOUR EDISCOVERY PORFOLIO WITH MULTI-MATTER MANAGEMENT


by ERIC ROBINSON on OCTOBER 21, 2013 

Predictive coding and other advanced technologies have changed the ediscovery landscape in a major way by offering the potential to increase efficiencies and decrease costs from collection through production. The fact that the application of these advanced technologies are gaining widespread acceptance is encouraging, and suggests that ediscovery practitioners are open (either through necessity or convenience) to embracing new ideas—especially in an era where data volumes and litigation costs are rising at a record pace.
Despite a growing inclination to embrace new ideas, many organizations and law firms still conduct their ediscovery projects with an archaic single matter transactional focus. For years, data has been collected, reviewed and produced in a vacuum, wholly disconnected from all other ediscovery/litigation or investigatory projects that would benefit from leveraging that project’s work product and data collections. For those who are serious about increasing their ediscovery efficiencies, it is time to move past the isolated redundant case-by-case approach and embrace multi-matter management.
Multi-matter management aims to reduce, reuse, and recycle past and/or existing document collections and work product by managing the entire portfolio of ediscovery projects rather than each individual project. By increasing collaboration and standardizing ediscovery and business practices to fit the portfolio management approach, there are significant gains to be made in terms of efficiency and tremendous cost savings.

THE CASE-BY-CASE APPROACH

There is no continuity from one project to the next, and the ediscovery process begins anew with each project. Specifically, note that the data from Case 1 has been collected and loaded five different times.
 Now, let’s compare that to The Portfolio Management Approach
With the portfolio management approach, the data from each case only has to be collected and uploaded once. When litigation teams communicate amongst one another, they can easily determine who collected what for each custodian, and access that data in a central repository. Doing so not only saves a vast amount of time and spares the cost of collecting core and/or repeat data, but it also provides greater insight into the case and allows the litigation team to focus on issues and timelines unique to each matter.
Multi-matter management is poised to become the next big thing for those who deal with serial litigation and repeat custodians. For more information about this emerging trend, check out eDJ’s upcoming webinar, sponsored by Kroll Ontrack.

Wednesday, October 9, 2013

Jason Atchley : Kroll Ontrack : DATA LOSS IN VIRTUAL ENVIRONMENTS



by JENNIFER DUITS on OCTOBER 8, 2013

When I joined the Kroll Ontrack Team and told my husband that I would be specializing in data recovery, one of his first comments to me was “will data loss be a thing of the past with everything moving to virtual environments?”  Now, I was new to the data recovery industry, but I am a veteran of the data storage industry.  My husband is not an expert in data storage, but does have some knowledge of it by marriage. He was very surprised by my response: “Virtual environments are not immune to data loss.”
I believe a lot of people in and out of the IT industry have the misconception that virtual environments are safe from data loss.  Per Jeff Pederson, manager of data recovery operations, Kroll Ontrack, “Virtual data loss can result from a range of causes, including file system corruption, deleted virtual machines, internal virtual disk corruption, RAID and other storage/server hardware failures, and deleted or corrupt files contained within virtualized storage systems. And, the ramifications are usually far more serious because the volume of data stored in a virtual environment is exponential to that stored on a single physical server or storage device.”
Let’s talk about virtual data loss for companies for a moment, and the statement “ramifications are usually far more serious.”  In a recent study by Kroll Ontrack*, we found that 40% of companies lose data annually from virtual environments.  So, 40% of companies surveyed, experienced downtime and some financial loss as a result of their data loss incident.  Only 33% of those companies were able to recover 100% of their data.  The other 67% of companies were only able to recover some of their data (44% recovered approximately 70% of the lost data and 23% recovered less than two-thirds of the data lost).  The bottom line is that companies are losing a lot of time, money and valuable information due to virtual data loss.
What can be done to protect against data loss?  First, create a plan of action now.  Don’t wait until data loss happens.  This will save you time and possibly more of your data when it does happen.  Find a trusted source for recoveries from virtual environments, like Kroll Ontrack.  Keep our information where it can be easily accessed.  Know the process for recovery, so you can easily communicate it to the stakeholders involved. By doing this, you will lessen the stress of the loss and relieve some of the pressure on you.  Leave the rest of the recovery up to us.
Virtual data loss happens, but it does not have to be permanent.

*Seven hundred and twenty four IT professionals participated in this survey in August 2013. Two hundred and twenty three respondents took the survey in-person at VMworld® 2013 in the U.S., while 466 from EMEA and 35 from APAC and responded to the survey online. A complete list of survey questions and results are available upon request.

Jason Atchley : Kroll Ontrack : FUN WITH SNAPCHAT SPOLIATION AND PRESERVATION


by THOUGHT LEADERSHIP TEAM on OCTOBER 7, 2013 i

Imagine an app that lets you send 10-second picture messages… and then the pictures get deleted forever. Welcome to SnapChat, the app allegedly used by Wall Street moguls for insider trading and a platform for new fashion debuts. The little app-that-could began less than two years ago. Today, SnapChat transmits over 150 million photos a day.
SnapChat may be an ingenious little program, but it perplexes ediscovery experts and general counsel: are “snaps” discoverable? Do parties have a duty to preserve snaps when they have little to no control over the “deletion” of the data? And even when snaps can be recovered, is the cost too burdensome?
The problem with SnapChat is its auto-deletion factor. To add fuel to the fire, some tech writers have suggested that these images leave metadata and are “recoverable” at a high price tag. It’s not far-fetched to imagine a scenario where a picture is relevant to a lawsuit is sent through SnapChat and “disappears.” As the argument goes, “I see a history of this image. I’m not sure how your custodian’s SnapChat app affected the image, but it’s relevant to my claim—please produce it.” How would a motion for spoliation sanctions against either the receiving or sending party play out? While I’m confident that a Snap-Chat case is brewing somewhere between the cell towers, it certainly is a testing muse—one that can support many different plausible solutions.
How could a party sending an innocuous little snap chat possibly be held accountable for the spoliation of ESI?  Imagine if the sender had intentionally sent snaps to avoid “creating” evidence. Say a spouse is having an extramarital affair and takes snaps that would prove his infidelity in divorce proceedings. Is that discoverable? Those snaps would likely fall under Fed. R. Civ. P. 26(b)(1), which permits discovery of electronically stored information (ESI) “regarding any non-privileged matter that is relevant to any party’s claim or defense.”  If the divorce proceedings are reasonably anticipated, the spouse could be under a duty to preserve. Moreover, if a court found that the spouse acted with sufficient culpability by choosing to send a snap instead of an MMS, for example, the spouse could be on the hook for sanctions. It’s hard to imagine that a party using SnapChat to willfully destroy evidence could take advantage of the safe harbor exception at Fed. R. Civ. P. 37(e), however, it could plausibly offer relief in the right cases.

Realistically, SnapChat users typically do not intentionally, willfully, or in bad faith delete snaps – it is out of their hands. For now, it seems, compelled discovery of snaps is plausible but not practical – until the next tech wiz teaches us how to save snaps for good.