Extract from article by Adam Lenain and Wynter Lavier Deagle
The combination of emerging technologies, information security risks and electronic discovery obligations continues to give rise to questions regarding best practices for adoption of modern ephemeral communication tools in lieu of more traditional forms of communication, particularly in the context of probable or pending litigation. Many businesses now employ various instant messaging systems, and employees routinely send work-related text messages and interact over collaboration applications–some of which enable automatic, or time of life, expiration, and deletion of information (referred to as “ephemeral” communication).
Absent an affirmative duty to preserve, an organization has no general obligation to save or store its communications or other information and is free to use technology to enable “effective, timely and consistent disposal of electronic information that no longer needs to be retained” as part its information governance program. Nevertheless, organizations must do so responsibly and under carefully crafted information governance policies designed and implemented with the assistance of counsel as courts have struggled to keep pace with the rapid changes in communications technology and the scope of a party’s preservation obligations as they relate ephemeral communications in the context of the litigation hold has not been clearly established.
As a result, as with the adoption of any emerging technology in the workplace (email, electronic signatures, etc.), the use of ephemeral communication tools by an organization requires a risk-versus-reward analysis.