With ephemeral messaging moving from fad to trend, it is important for lawyers to consider several questions, such as whether their clients, if under legal hold, can still use ephemeral messaging and if so, under what circumstances? In my last post, I explored the meaning of ephemeral data and messaging, and proposed the following working definition for “ephemeral messaging”:
Ephemeral Messaging (əˈfem(ə)rəl mes-uh-jiNG). Noun.
A subset of messaging applications and platforms that include a specific, core functional design component providing for the permanent erasure of messages through use of:
In this post, I examine how the law looks at the construct of ephemerality when it comes to determining the obligations of litigants to preserve and produce discoverable information.
Ephemeral Data is Discoverable
Columbia Pictures, Inc. v. Brunnell is the seminal case addressing the preservation and discovery of “ephemeral” data. Plaintiffs, a group of motion picture and television companies, filed a copyright action against a company running bit-torrent servers, allegedly allowing users to illegally download pirated digital copies of movies and television shows. Plaintiffs demanded that the defendants preserve and produce server logs showing the IP addresses of users. Defendants asserted that these server logs were never stored in permanent form, but rather existed only in Random Access Memory (RAM), where data is maintained only for transitory periods and then overwritten (or cleared when power is disconnected.
In considering defendant’s argument that “RAM is too ephemeral” to fit the definition of ESI subject to production under Rule 34, the court turned to another portion of copyright law: examining if the requested information contained in RAM has been “fixed in a tangible medium of expression,” which the copyright act defines as “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” Citing prior case law determining RAM is a tangible medium, the court rejected defendant’s assertion that discoverable ESI was not within its possession, custody or control under Rule 34. Given the importance of this particular evidence to the case, and the demonstrated ability of a forensic expert to extract the server logs from RAM and produce it in a reasonably useable format, the district court concluded that defendant’s failure to preserve and produce this ESI constituted material spoliation, and issued case terminating sanctions against the defendant.
More recently, in a 2018 trade secret misappropriation dispute between self-driving car start-up Waymo and ride-sharing bemouth Uber, it was uncovered during discovery that Uber had instructed its employees to use the ephemeral messaging app Wickr when communicating about the development of Uber’s own self-driving system. Waymo sought sanctions against Uber, asserting, inter alia, that Uber’s use of Wickr was proof of intentional spoliation and subject to an adverse inference instruction.
In pre-trial motion practice, the court concluded that Uber had a duty to preserve evidence, including text messages, and that those messages were permanently lost. However, the court expressed its concerns “Waymo seems unwilling or unable to prove its case at trial with qualified witnesses and evidence and seeks to have the Court fill in the gaps with adverse inferences instead.” Accordingly, the court decided to reserve the decision on issuing a formal adverse inference instruction to the jury until after the Waymo completed its case in chief. In the meantime, the court granted Waymo the authority to introduce evidence at trial demonstrating that “Uber sought information about the technical details of Waymo’s self-driving technology, and that Uber sought to minimize its ‘paper trail’ by using ephemeral communications.”
The parties settled the case after the fourth day of trial, prior to plaintiff completing its case in chief. As such, we did not learn the direct consequences of Uber’s attempt to “minimize its ‘paper trail’ by using ephemeral communications.” Yet it is clear that the court recognized that Uber had a duty to preserve messages between its executives and that it willfully failed to do so.
There is no special exception to the common law duty to preserve potential evidence for ephemeral messaging. Like any other form of ESI, ephemeral data is subject to discovery, and cannot be ignored. In my next post, I will examine this point in greater detail, including the relationship between ephemeral messaging and a company’s records retention and information governance program.
 Columbia Pictures, Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419 (C.D. Cal.), motion for review denied sub nom. Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007)
 17 U.S.C. § 101
 Waymo LLC v. Uber Technologies, Inc. et al., 3:2017cv00939 (N.D. Cal.)
 Id., Dkt. # 2585, at 29 (1/30/2018), available at: https://cases.justia.com/federal/district-courts/california/candce/3:2017cv00939/308136/2585/0.pdf.