Ephemeral messaging apps, which automatically erase users’ messages in a short time, are being used more than ever in the workplace and are already having a significant effect on e-discovery and the legal field. Attorneys must tread carefully, as unfamiliarity with ephemeral messaging is no valid excuse in potential regulatory proceedings. Two recent corporate investigations in JP Morgan Chase & Co. and Goldman Sachs serve as stern warnings concerning non-compliant communication practices. JP Morgan was hit with a $125 million penalty and had to enact compliance policy improvements after failing to maintain and preserve written communications, while Goldman Sachs terminated high-level employees for discussing company affairs on non-approved channels.
When considering how to manage the data produced by ephemeral messaging apps, corporations should periodically review and update their policies. These reviews should bear in mind potential risks, enforceability, costs, burdens, and the defensibility of these policies.
Another important factor is data mapping. Understanding where your data is created, processed and stored is crucial for compliance, security, risk management, and operational efficiency. A simple legal hold notice is not sufficient.
Legal practices and law firms must understand the challenges posed by these continually-developing messaging technologies and their impact on legal obligations. The accuracy and completeness of self-collections can often be called into question, thus underlining the need for a forensic expert experienced in understanding how these applications are used.
Regulators and plaintiffs are becoming more tech-savvy and increasingly questioning data sources. This necessitates a varied approach when reviewing data, whether per individual messages, 24-hour transcripts, 48-hour transcripts, or after significant breaks in conversation. Even while clients are becoming more knowledgeable and cost-conscious about e-discovery processes, failing to have a defensible and cost-conscious strategy can lead to client management issues.
The use of ephemeral messaging apps poses a genuine challenge to legal teams and failure to keep up with this rapid pace of development can not only result in sanctions but can also damage vital client relationships. You can read the full details here.