Jasleen Dhanoa, a 3L law student at the University of Calgary and writing contributor for the Tech and Law Association discusses the legal implications of ephemeral messaging and the possible ability to be found guilty of spoliation.
In Canada, parties to a lawsuit are required to disclose documents that are relevant and within their control and possession.[1] A party can be found guilty of spoliation when they intentionally destroy a document, they had the duty to preserve.[2] Doing so can lead to adverse sanctions on the violator. Spoliation was defined in the Rules of Court well before many of today’s forms of social media were created. The idea that evidence could be automatically destroyed without any positive action of any human connected to a lawsuit was simply not contemplated. So what happens when people use social media messaging intentionally designed to self-destruct? Can this amount to spoliation? Can it really be said that someone is guilty of spoliation if they themselves did not destroy the document in question? These questions have yet to be answered in Canadian courts.
As the Chief Growth Officer at Reveal Brainspace puts it, “Once squarely the domain of James Bond movies, the concept of self-destructing messages has gone from spy trope to mainstream.”[3] Also called ephemeral messaging, self-destructing messaging is commonly used in social media platforms such as Snapchat, BeReal, Wickr, even Instagram has adopted a new “vanish mode.” These messages auto-delete after the recipient has viewed them or after a specified period. In assessing whether such messages can trigger a potential spoliation claim, its useful to look at what spoliation entails. The three elements required in order to find someone guilty of spoliation are that they had the duty to preserve, destroyed what they had the duty to preserve, and did so intentionally.
A good example to assess spoliation claims is through Snapchat messages, so-called snaps. There is no argument that messages from Snapchat can be requested by the courts. This was done recently in Araya v Nevsun Resources Ltd.[4]There is not much case law specifically about spoliation in regard to snaps themselves. However there has been litigation in the United States surrounding snaps that have been saved in-app in the “memories” folder on Snapchat. Doe v Purdue University is a case where a user deleted Snapchat “memories.”[5] In this case this didn’t amount to spoliation as there was no evidence that the deleted “memories” were relevant to the case or deleted with the intent to impact the outcome arrived to in court.[6] However the court did mention that there would be a duty to preserve if the “memories” were relevant to the litigation.[7] This commentary from the courts does suggest that the duty to preserve is definitely triggered when it comes to ephemeral messages. However, there’s definitely further issues this duty to preserve would create. How should parties preserve it in the first place? After all, the duty to preserve is limited to only those documents that in the control and possession of the litigant. Screenshots are an option however they can be unreliable. Perhaps third-party apps used to save snaps are an option, but such apps are unofficial and potentially unreliable. Hoping to recover snaps forensically may be cost-prohibitive and burdensome so that is not an option that can be relied on. Perhaps one option is to abide by Sedona Principle 4 which recommends parties decide on a discovery plan together for electronically stored information.[8] But what if there was no plan and no snaps had been preserved? Does this amount to spoliation?
Intentional destruction that will amount to spoliation is when a party does so with the purpose of altering the outcome of the litigation.[9] So what does this mean for self-destructing messages? Keeping in mind that that snaps are set up by the Snapchat to be self-deleting and not deleted by the user themselves, can this amount to intentional destruction? An argument could be made that they were deleted in the ordinary course of business and thus should not be subject to spoliation laws. However, this argument would likely fail as the common law duty states that one should preserve information as soon as litigation is commenced.[10] Arguably by continuing to send and receive snaps, one is intentionally choosing not to preserve documents. In fact, there is some support for the idea that litigants should stop using ephemeral messaging apps to discuss litigation relevant topics as soon as it’s anticipated.[11] One of the rationales supporting this is that an opposing litigant may seek an inference that the user of ephemeral messaging is trying to hide something based on their continued use of the service.[12] Having made out the duty to preserve and assuming the snaps are relevant to the litigation, the intentional destruction element can likely be easily made out. If a user knows how Snapchat works and still is utilizing it to discuss litigation matters knowing that those snaps will be deleted and cannot be found for litigation, I argue that this amounts to intentional destruction. It should be immaterial that the users themselves are not deleting the messages. The “intentional” component should arguably be fulfilled through the choice that the users make in using such services. Even if not in bad faith, a judge may still find it to be spoliation as the user is using a technology that thwarts litigation and discovery obligations by its very nature.[13]
Ultimately, the many issues that arise with ephemeral messaging haven’t been tried in Canadian courts. It is yet to be seen how a court may deal with spoliation claims for ephemeral messaging platforms. However, given the risk of adverse findings, and several arguments in favour of a finding of spoliation, it is probably best to avoid using ephemeral messaging altogether when dealing with litigation-centred conversations.
[1] Alberta Rules of Court, Alta Reg 124/2010 at Rule 5.6.
[2] Gideon Christian PhD, “A ‘Century’ Overdue – Revisiting the Doctrine of Spoliation in the Age of Electronic Documents” (2022) 59:4 Forthcoming Alberta L Rev at 1.
[3] Cat Casey, “This Message Will Self-Destruct in Five Seconds: eDiscovery and Ephemeral Messaging” (16 June 2022), online: Reveal Brainspace <https://resource.revealdata.com/en/blog/ediscovery-and-ephemeral-messaging>.
[4] Araya v Nevsun Resources Ltd, 2019 BCSC 262. See also “Sedona Canada Commentary on Discovery of Social Media” (2022) 23 Forthcoming Sedona Conf J at 94-95.
[5] Doe v Purdue 2021 WL 2767405, 2021 U.S. Dist. LEXIS 124257.
[6] Ibid at 7.
[7] Ibid at 9.
[8] The Sedona Conference, “The Sedona Canada Principles Addressing Electronic Discovery, Second Edition” (2016)
17:1 Sedona Conf. J 2015 at 223.
[9] Supra note 2 at 11.
[10]Supra note 2 at 7-8.
[11] Brian D. Hall, “The Impact of Smart and Wearable Technology on Trade Secret Protection and E-Discovery”(2017) 33:1 ABA J of Labour & Employment L 79 at 85.
[12] Ibid at 86.
[13] Supra note 3.
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