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Linked: Mission impossible: Ephemeral Messages Preservation. Part 1

I think the rise of ephemeral, or temporary, messaging, is fascinating, and I also think that many in the legal field are completely overthinking this. Take, for example the article below, where Pavan raises what he considers to be the “risks:

Risks of Ephemeral messaging


Preservation and spoliation of evidence: Information that is within the scope of discovery is also subject to a preservation duty. Failure to preserve can amount to spoliation, with potentially serious consequences in litigation. Because the ephemeral messages are short-lived there is a high risk of spoliation of evidence as it is impossible to preserve the ephemeral message.

Negative perception: There is a common misconception that if you want the data to delete automatically then you are hiding something. This perception is one of the reasons why organizations are still not implementing or encouraging ephemeral messages as part of information governance.

As a technologist, rather than a lawyer, when it comes to his first point, I like to posit a different way of looking at it. Instead of thinking that an ephemeral message not kept is automatically spoliation, let’s consider it as exactly what it is, temporary communication. I’d argue that the duty to “preserve” the kinds of messages is more akin to the duty to “preserve” face to face conversations or telephone calls.

Is it spoliation to have not recorded those conversations just in case you might need them as part of litigation? Then why can’t there be a digital equivalent?

I suspect it’s because we also look at his second point, and assume that anyone using these “self-destructing” messages must be trying to hide something, instead of taking reasonable steps to limit the amount of data clutter laying around. Much like picking up the phone can eliminate 10 emails back and forth, but no one is claiming that not having those emails is spoliation, are they?

We need to get past this idea that everything must be kept for potential litigation. That is not true, and has never been true. Companies should feel free to use whatever communication device they want, and set whatever parameters around archiving it that they want, as long as they do it consistently, I see no problem, with the exception of some industries where there are legal requirements.

Otherwise, we’ll just all put everything in email, so that it’s saved for all eternity, just in case.

That’s no way to conduct business.

Lawyers, feel free to chime in here, Why should those of us who aren’t lawyers consider ephemeral messages any differently than communication that isn’t digital and recorded ever?


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