As the concept of technology set to delete content
automatically becomes more mainstream, there is significant potential for
accusations of inappropriate destruction of evidence in the context of
litigation, or criminal or regulatory investigations. Individuals and
organisations who opt to use ‘ephemeral data’ and may do so for legitimate
reasons need to ensure that legal holds are respected and that they have
considered legal defensibility.
Analysis
If we have all learned one thing since 25 May when GDPR came
into operation, it is that data should not be held onto without good reason.
This requires a change in mind set for most organisations and it brings into
focus the emerging phenomenon of self-deleting tech. There are now many apps
offering encrypted messaging with built-in automatic deletion and we are likely
to see an increase in email providers giving ‘self-destruct’ options, such as
Google’s new Gmail Confidential. Aside from the new imperative to delete
unnecessary data, there are plenty of good reasons why an individual might
choose to use ephemeral messaging. The question is how defensible is it from
the perspective of a court, regulator or enforcement authority.
There are some specific duties to hold records for defined
periods, such as for tax purposes or in particular regulatory contexts, with
which ephemeral messaging may interfere. The obligation to hold secure all
potentially relevant documents once litigation is reasonably contemplated is
well established under Irish law (and in many other jurisdictions). Where
litigation is reasonably contemplated or already underway, parties must hold
all potentially relevant data and documents secure. The destruction or deletion
of relevant material may expose the party involved, or their solicitor, to
serious sanction. Items that no longer exist must be listed clearly, so that
they are reasonably identifiable, on oath. Material over which privilege can be
asserted also needs to be separately listed and identified on affidavit.
Solicitors owe a duty as officers of the court to ensure
full and frank discovery is made. This means that solicitors must ask the right
questions of their clients at the outset of litigation, to ensure that they
understand how they communicate and to identify what material exists or may
exist, and what does and does not need to be retained. Where a party to
litigation uses an ephemeral messaging tool, use of the tool may need to be
suspended or kept under review as part of any legal hold. Similarly,
organisations may need to develop protocols around the use of ephemeral
messaging tools for business purposes.
In the context of regulatory or criminal investigations the
use of ephemeral messaging may give rise to significant issues. An organisation
may not know that it is the subject of an investigation at any given time. Even
where the fact of an investigation is known, the organisation may not have
clarity regarding the scope of the matters under scrutiny and the scope of the
investigation may change, bringing in material that might not previously have
been considered to be within scope. The fact that relevant material has been
deleted may increase the risk of sanction in respect of the offence in
question, or give rise to sanction for contempt of court. The use of ephemeral
messaging, which may be quite innocent, may nonetheless suggest that the person
involved ‘had something to hide’ and the organisation might find that important
communications that might tend to exonerate have been lost through
auto-deletion.
Conclusion
Organisations should seek to understand how their personnel
communicate with regard to their business, whether ephemeral messaging is in
use and whether it may impact upon legal holds. Document retention policies may
need to be revisited to provide for automatic deletion and legal hold notices
should specifically refer to the need to suspend auto-deletion of potentially
relevant data.
Karyn Harty is a Partner at McCann Fitzgerald based in Dublin.
Karyn’s principal area of practice is complex commercial disputes.
