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Ephemeral Data: Update Your Custodian Checklist Now

Ephemeral Data

I spent a full day last week at the beautiful new campus of Toyota Motor North America, right up the road in Plano, Texas. Our friends at Toyota hosted the 2nd Annual Spring Meeting of the Electronic Discovery Institute, where we enjoyed spirited dialogue covering a range of eDiscovery, information governance, and cybersecurity issues.

On everyone’s mind was the ever-increasing number of data sources that demand attention on our custodian interview checklists. And of those sources, one of the more interesting (and potentially challenging) is the rise of “ephemeral communication” apps, such as Wickr. Such apps – made popular on the consumer side of the ledger (think Snapchat) – have now crossed the corporate divide.

Of course, eDiscovery attorneys can’t think of ephemeral communication apps and the challenges they present from a legal and an optics point of view without considering the recent Waymo v. Uber litigation (about which I previously blogged here). Although the use of such apps by Uber gave rise to discovery sanctions, there are legitimate business uses for such apps.

Consider, for example, the attorney or other outside professional advisor who needs to communicate with senior leadership at a company whose systems have been breached by the actions of a malicious hacker. In the hours or even days after learning of such breach, the safest and most secure way to communicate with such people effectively could be through an app like Wickr.

Or consider employees who need to travel to sensitive parts of the world where it is known that ordinary communication channels are routinely compromised and monitored. Again, a non-frivolous, legitimate case can be made for the use of ephemeral communication apps in such cases. Indeed, it’s one of the reasons that Wickr and others now offer both professional and enterprise versions of their apps.

And so, for those of us doing eDiscovery and information governance more generally, it means that ephemeral communication apps have – for better or for worse – come out of the shadows and have entered the mainstream of certain business use cases. As with any new technology, once that happens, it’s incumbent upon us to educate our clients about appropriate use, keeping in mind that although the tech might be new, the rules concerning retention and spoliation remain unchanged.

At Level 2 Legal, our consulting practice welcomes the opportunity to work with clients concerning the whole range of litigation and investigation readiness tasks, including the development of custodian interview checklists and related resources that take into account the ever-changing corporate IT landscape. Having one’s house in order before litigation or investigation strikes is one of the best ways to reduce business interruption and control costs.

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