Courts have repeatedly emphasized that lawyers should take actionable steps at the outset of litigation to safeguard the preservation of relevant ESI. One of those steps typically includes investigating and understanding client information systems that contain relevant information. This is particularly the case with social media and messaging apps whose content is dynamic and—barring swift action—can easily be modified and destroyed. The recent Doe v. Purdue University case—in which the court sanctioned plaintiff for failing to preserve relevant images and videos from his Snapchat application—underscores this point.Purdue University teaches that counsel must understand the retention and deletion features of Snapchat and other messaging apps and social media if they are to help their clients preserve relevant ESI.
Snapchat Deletion and Retention Features
Snapchat is an ephemeral messaging application that characterizes itself as a deletion first communication tool. While Snapchat enables users to both create and share images and videos (among other things) with other Snapchat users, most of that content “will be automatically deleted once they’ve been viewed or have expired.”
Nevertheless, Snapchat does allow users to preserve images and videos. Referred to as “Snaps,” users may save images and videos on Snapchat as “Memories.” To save Snaps as Memories, users must take affirmative steps to ensure the information is retained. This includes clicking on an icon found on the Snapchat application window to enable retention, properly backing up Memories on the user’s Snapchat account, and freeing up sufficient storage space on the user device. Once Snaps are saved as “Memories,” Snapchat backs that content up on its servers.
Users may also delete their Memories. Doing so requires the user to take multiple steps including swiping up “from the Camera screen to go to Memories,” pressing and holding on a particular Snap, and then selecting the “delete” option. Once a user deletes Memories, Snapchat’s servers will sync with the user’s actions, eliminating them from its servers “as soon as possible.”
As the court observed in Purdue University, anyone can find this straightforward discussion of Snapchat’s retention and deletion functionalities through a “superficial internet search,” followed by a “cursory review” of Snapchat’s website. Nevertheless, plaintiff and his counsel filed sworn declarations asserting that Snapchat did not allow users to keep Snaps even though plaintiff previously saved 86 Snaps as Memories. Counsel’s failure to investigate Snapchat’s retention and deletion features, together with plaintiff’s Snapchat account, resulted in this erroneous representation, along with the ensuing preservation failure and court sanctions.
Doe v. Purdue University
Purdue University involves civil rights claims, with plaintiff alleging that defendants deprived him of a “protected liberty interest”—his honor and reputation—without due process and thereby interfered with his aspiration of becoming U.S. Naval officer. In response, defendants sought discovery from plaintiff’s Snapchat account to ascertain whether he engaged in any conduct that would undermine those claims. After plaintiff objected to defendants’ requests on relevance grounds and defendants moved to compel, the parties filed a joint stipulation with the court in which plaintiff agreed to produce a complete data download from his Snapchat account.
Despite that stipulation, plaintiff only produced his Snapchat username and declined to share any substantive Snapchat content. In response to defendants’ motion for sanctions, plaintiff and his counsel respectively filed declarations representing that plaintiff’s Snapchat account did not retain any substantive content. Among their representations, plaintiff and his counsel (incorrectly) stated that:
After ordering him to once again turn over his Snapchat data, plaintiff finally produced a Snapchat download with links to access 86 Snaps containing images and videos. However, defendants could not view the images or videos because the access links (which are only operative for seven days) were downloaded over two months earlier. Plaintiff subsequently produced another Snapchat download, but this time with links to only 75 images and videos. In subsequent testimony, plaintiff acknowledged that he deleted 11 Snaps, purportedly to clear off data from his phone for performance enhancement.
After an evidentiary hearing and additional motion practice, the court imposed sanctions against plaintiff for deleting the 11 Snaps. The court found that plaintiff’s failure to preserve the images and videos at issue ran afoul of Federal Rule of Civil Procedure 37(e). As a remedy, defendants would be allowed to present evidence and argument to the jury regarding plaintiff’s Snapchat spoliation while the court would instruct the jury regarding the spoliation. The court declined to sanction plaintiff’s lawyer, but not before admonishing counsel for “delegat[ing] the inquiry regarding how to retrieve Snapchat data to Plaintiff.”
Satisfying the Duty of Reasonable Inquiry and Ethical Obligations regarding Competence
With the legal profession having well over 15 years of education on ESI discovery, the need for counsel to undertake a reasonable inquiry under FRCP 26(g)(1) should now be self-evident. Nevertheless, eDiscovery caw law from 2021 is replete with opinions demonstrating that counsel lack proficiency in ESI basics and best practices. Those decisions confirm that the Snapchat preservation failings that blighted Purdue University are not isolated shortcomings.
Like DR Distributors v. 21 Century Smoking and other cases from this year, Purdue University spotlights the need for lawyers to take charge of the discovery process and more readily ensure that relevant information is safely accounted for in litigation. As part of that duty of inquiry, counsel must investigate and reasonably understand client information and communication systems that may have relevant information. This is particularly the case with dynamic data sources like Snapchat and Slack, even though satisfying that duty may involve learning technical details which could be difficult for counsel to grasp. As Purdue University makes clear, this duty cannot be passed off to the client.
Handling these issues is likewise within the ambit of counsel’s ethical duty of competence, which requires lawyers in most U.S. states to stay abreast of the benefits and risks of technology. Counsel should not just rely on client representations to understand the retention and deletion functionalities associated with messaging apps like Snapchat. Instead, they should undertake their own research or engage eDiscovery counsel or expert consultants to help advise them on these issues. Doing so will strengthen counsel’s hand in dealing with the client, litigation adversaries, and the court on these issues.