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.