Disappearing Act: Court Provides Reminder that Counsel Must Investigate and Understand Client’s Use of Ephemeral Messaging Services to Prevent Sanctions

A decision earlier this year from the Northern District of Indiana illustrates the importance of counsel thoroughly investigating and understanding all data sources their clients may be using to create and store potentially relevant Electronically Stored Information (ESI). With the increased use of messaging applications – including ephemeral ones – counsel must understand the intricacies of each application (and its retention and preservation policies) used by their clients to prevent the destruction of relevant ESI.

In this case involving civil rights claims, the defendants sought evidence regarding the plaintiff’s activities and character to disprove claims that the defendants deprived the plaintiff of his honor and reputation – a “protected liberty interest” – without due process. Through one of their requests, the defendants sought all data related to the plaintiff’s Snapchat account.

For background, Snapchat is a messaging service where users record photos and videos (called “Snaps”) to send to other users. These Snaps appear on the receiver’s screen only for a limited period of time (generally, seconds). In addition, Snapchat users can send chat messages to other users, create “Stories” that remain visible to all users for 24 hours, and save Snaps indefinitely by storing them in the user’s “Memories.” Data within the user’s “Memories” is saved by Snapchat until a user deletes it, at which time Snapchat servers will erase the data.

After a discovery dispute arose regarding the plaintiff’s failure to produce requested Snapchat data in accordance with a joint stipulation, the plaintiff submitted a certification to the court to “set[] the record straight…so the Court can understand the limitation of what can be done as to Snapchat discovery.” In the certification, the plaintiff made representations that Snapchat does not: (1) archive content files; (2) retain user information past 30 days; (3) retain user identity past 30 days; or (4) preserve user content. The plaintiff further certified that the data downloaded from Snapchat’s servers contained only non-content metadata and did not contain any videos, images, or chats. Additionally, plaintiff’s counsel certified that the plaintiff’s Snapchat user name was the only information that could be learned from review of the Snapchat data.

These statements were, in fact, false. Prior to making the certification, the plaintiff had downloaded from the Snapchat servers 86 images and videos dated between 2016 and 2020. The plaintiff, however, did not provide the defendants the download link until two and a half months later, which had already expired seven days after receipt from Snapchat. After the defendants alerted the plaintiff of their inability to access the data, the plaintiff provided the defendants a new download link; however, this new data set omitted eleven images and videos that were listed in the original production. After the defendants raised the issue of the eleven missing Snaps, the plaintiff admitted that they had deleted certain files from their “Memories” folder in the application to allegedly clear memory on their phone.

Shortly thereafter, the defendants filed an order to show cause in light of the plaintiff’s continued non-compliance with the parties’ joint stipulation, alleging the plaintiff had deleted certain files prior to providing his Snapchat data. The court confirmed the defendants’ allegations by finding that sometime between July and October 2020, the plaintiff affirmatively deleted eleven files from his “Memories” folder on the application and that the plaintiff’s actions – the failure to preserve the eleven images and videos – violated Federal Rule of Civil Procedure 37(b) and (e).

As covered thoroughly by this blog, a court may apply curative measures or sanctions against a spoliating party only after the court finds: (1) the information is ESI; (2) the party had a duty to preserve the ESI; (3) the ESI was destroyed as a result of the party’s duty to take reasonable steps to preserve it; and (4) the ESI cannot be retrieved from any other source. Curative measures under Rule 37(e)(1) are imposed where the requesting party is prejudiced in light of the ESI’s destruction. Sanctions under Rule 37(e)(2) may be imposed where the spoliating party intended to deprive the requesting party of the ESI. Under Rule 37(b), the court many also impose sanctions for spoliation of evidence if the party’s misconduct includes violation of a court order, as occurred in this case; there were several orders issued by the court prior to the plaintiff’s spoliation of the Snapchat evidence.

The court took a rare and interesting approach to considering the spoliation issues. Initially, the court analyzed whether the plaintiff’s conduct met the common laws spoliation standard, outside the context of Rule 37. Because that standard turned on destruction of evidence “in bad faith,” the court found that sanctions were not available. However, the court then turned to Rule 37 (which, it can be argued, should be the sole source of any ESI spoliation sanctions analysis following its 2015 amendment) and arrived at a different result. With the Snaps clearly being ESI, the court found that the plaintiff had a duty to preserve the deleted Snaps arising through the defendants’ formal discovery requests. Additionally, the plaintiff had a separate duty to preserve these Snaps through at least one, if not more, court orders and the parties’ joint stipulation. The court further determined that the plaintiff took affirmative steps to delete the eleven Snaps at issue (thus failing to take any responsible steps to preserve the ESI), which could not be restored or replaced. The plaintiff’s deletion of these Snaps, the court concluded, “undoubtedly prejudiced” the defendants, as these Snaps may have contained relevant evidence and, in light of the plaintiff’s actions, the defendants were forced to engage in lengthy motion practice to resolve the dispute.

As a result, the court imposed evidentiary sanctions – allowing the introduction of evidence and a jury instruction related to the plaintiff’s destruction of the Snaps – and monetary sanctions – payment of the defendants’ attorneys’ fees incurred related to the discovery dispute. These sanctions, however, were much less severe than the dispositive sanctions sought by the defendants, which the court noted were not available in the absence of evidence of intent to deprive the defendants of the spoliated evidence.

This opinion illustrates the high bar a requesting party must clear in order for the court to impose severe sanctions against a spoliating party. Despite finding that the plaintiff acted in “bad faith” by making false representations to the court and intentionally or recklessly disregarded their discovery obligations by deleting the eleven Snaps, the court determined that there was not enough evidence to find that the plaintiff deleted the files with the “intent to deprive” the defendants of the data. Further, citing Rule 37(e)’s guidance that curative measures or sanctions cannot be imposed “greater than necessary to cure the prejudice,” the court declined to impose more serious sanctions against the plaintiff because there was no evidence that the deleted Snaps were adverse to the plaintiff’s claims.

This decision also stresses the importance that counsel proactively undertake the necessary actions to fulfill their duties under Rule 26(g)(1), which requires counsel to engage in reasonable inquiry to understand the universe within which relevant discovery may be contained – i.e., clients’ information and communication systems. With the advent of non-traditional data sources such as Snapchat, counsel cannot abdicate this duty to the client and cannot view this duty as satisfied based solely on a client’s representations, without further investigation. As recent decisions across the country have illustrated, counsel can no longer rely on ignorance when dealing with the preservation of unfamiliar ESI, as these ground rules have been set for far too long.

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