The Art of Litigation Hold
February 24, 2017
The “Business Judgment” Discovery Rule and its Impact on Information Governance
May 18, 2017

Social Messaging Applications Herald a New Era of Discovery Challenges

Social Messaging Applications Herald a New Era of Discovery Challenges

Discovery of social networking content has traditionally focused on social media platforms. This means requesting parties have sought to obtain and responding parties have attempted to preserve and produce relevant posts and messages from traditional sites like Facebook and Twitter. Indeed, the case law on this topic – nicely summarized in The Sedona Conference Primer on Social Media – generally reflects platform-driven discovery.

While these platforms remain popular and should still be searched for relevant content, clients and counsel should also consider looking for relevant information located on social messaging applications. Consumers and businesses have increasingly turned to messaging applications over the past few years. Indeed, reports indicate that users of these apps now outnumber users of traditional social networking platforms.

While relevant information can now be found in a wide variety of messaging applications, litigants should be aware that these apps are not a homogenous class of data repositories. On the contrary, features such as communication functionality, user information, and content retention widely vary. The following represents a brief overview of some of the more common messaging apps.

“Over-The-Top” (OTT) messaging applications

These apps offer lower cost messaging alternatives than providers of traditional text messaging services. They generally fall into two categories:

  • Third Party Applications – these messaging apps are often cross-platform and apparently provide an enhanced user experience at a lower cost than what is offered by traditional providers of text messages. Whatsapp, Line, and Kik are examples of third party OTT messaging apps.
  • OS-Specific Communication Systems – these are messaging apps available through specific operating systems. iMessage is an example of an OTT app tied into a specific operating system.
Anonymous Messaging Applications

These apps enable users to communicate with others without disclosing their identities. They have grown in popularity due to the perceived freedom that anonymity provides to users. The consumer version of these apps generally appeal to users at the collegiate or high school level and are group-oriented such that any number of users in a specific geographic area can join in a discussion. While consumer-based apps such as Yik-Yak and Whisper have dominated the headlines, anonymous apps have also been deployed in the workplace in an effort to encourage employees to provide candid feedback on corporate matters without fear of recrimination.

Self-Destructing Messaging Applications

These apps, which include Snapchat, enable users to exchange and then delete content within a particular time (ranging from minutes to days) after receiving the message. Different applications offer competing features including the ability to control distribution of messages (to a small group versus a community of users), message encryption, private messaging capability, prevention of screenshots, untraceable messages, and removal of messages from others’ devices.

Cloud-Based Messaging and Collaboration Tools

External messaging and collaboration tools provide employees with a more interactive communication platform than the less flexible feel of email or corporate messaging applications. One of the more popular messaging and collaboration tools is Slack. Billed as a “messaging app for teams who are changing the world,” Slack touts its multifaceted functionality of discussion “channels” for larger groups, “direct messaging” for one-on-one exchanges, and “private channels” to communicate sensitive information. Asana, HipChat, and SpiderOak are examples of other similar apps.

Discovery Challenges with Social Messaging Apps

With so many additional sources of potentially discoverable social media content, litigants must become aware of how to preserve, collect, produce, and obtain that information. That task is often far from straightforward. Like traditional social media discovery, requesting parties frequently have to proceed through byzantine procedural hurdles to obtain user content or identities.

Responding parties must take proactive steps to preserve and produce information that may be ephemeral or is otherwise difficult to identify or retain. To ensure that such information is properly produced or obtained in litigation, organizations should look to counsel or consultants who have expertise in handling these tasks. The complexities associated with discovering content from messaging apps make clear that this is not an appropriate area for a DIY discovery plan.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.