Snapchat in eDiscovery: Now You See It, Now You Don’t
By
Sierra Palmer, Law Clerk
Schwartz Semerdjian Cauley & Moot LLP
Published: 12.01.2017
I. Intro
Remember the headache felt around the world when Facebook hit the eDiscovery scene? Litigators were struggling to determine which photos and posts Facebook users were obligated to preserve for discovery purposes. Judges were (and still are) pulling their hair out trying to fit the logistics of social media platforms into the confines of the Rules of Civil Procedure. Unfortunately for them, a new social media platform has come with a state-of-the-art disappearing act that is sure to pack a punch of its own. The Snapchat app will be eDiscovery’s newest headache, creating obstacles of possession, custody, and control over Snapchat’s disappearing messages.
II. What is Snapchat?
What started as a Stanford class project proposal in 2011 has since turned into one of the most popular social media platforms in the United States, with 60 million daily active users. (See Snapchat Passes 60 Million Daily Users In The U.S. And Canada, Forbes Magazine, https://www.forbes.com/sites/kathleenchaykowski/2016/09/26/snapchat-passes-60-million-daily-users-in-the-u-s-and-canada/#1c47983266cd (last visited Oct. 1, 2017)). Snapchat is a photo-sharing service and messaging app with a feature that separates it from the rest: the photos and messages that you send through the app disappear once the recipient opens the message.
A consumer can use this free application by taking a live photo or video on the app platform and either send it to specific people in their contacts, or add it to their story—meaning it will be viewable on Snapchat to all of the user’s Snapchat contacts. The customizable privacy settings determine who can send Snaps to the user and who can view the user’s story. Once a user chooses who to send the photo or video to, they set a timer that determines how many seconds the recipient can view the message before it vanishes. Once opened, the app will notify the sender that the Snap has been received and neither the recipient nor the sender can see the photo again. Although a recipient can choose to “screenshot” or “screen capture” a photo before it disappears, Snapchat will send the sender a notification informing them that the recipient took a screenshot of the Snap.
Although Snapchat assures its users in the initial paragraphs of its privacy policy that it does not store contents of messages on any server where the data can be collected, and that messages sent are completely encrypted between devices, the latter sections of its privacy policy says otherwise, stating:
Keep in mind that, while our systems are designed to carry out our deletion practices automatically, we cannot promise that deletion will occur within a specific timeframe. And we may need to suspend those deletion practices if we receive valid legal process asking us to preserve content or if we receive reports of abuse or other Terms of Service violations. Finally, we may also retain certain information in backup for a limited period of time or as required by law. (See Privacy Policy, Privacy Center – Snap Inc., https://www.snap.com/en-US/privacy/privacy-policy/ (last visited Oct. 1, 2017)).
Many tech writers have suggested that Snapchat’s video recordings and photographs leave traceable metadata that may be recoverable at a high price tag depending on the size and date of the desired content, but retrievability is nonetheless uncertain and has not been an issue yet discussed in the courts.
III. Social Media Discovery
Social media has recently become a hot source for discovery in both civil litigation and criminal law due to its tendency to reflect on a party’s physical, emotional, or mental condition, their activity level or area of employment, or even their relationships and state of mind at the time of posting. Consequently, many courts have determined that social media contents are discoverable if they reflect on relevant points that are at issue in the case. Social media can also provide information about potential witnesses who may have knowledge of certain disputed facts of the case. So what preservation duties does that create for a Social Media user?
Courts have enunciated that a party has an affirmative obligation to preserve any social media content that is potentially relevant once the party is on notice that another party is seeking information from their social media accounts, even if their account settings are marked as “private.” (See Howell v. Buckeye Ranch, Inc., No. 2:11-cv-1014, 2012 U.S. Dist. LEXIS 141368, at *2 (S.D. Ohio Oct. 1, 2012); see also Glazer v. Fireman's Fund Insurance Company, 2012 U.S. Dist. LEXIS 51658, 2012 WL 1197167, *3-*4 (S.D.N.Y. April 4, 2012)). This duty is set into motion when the party in question can reasonably foresee the prejudice that would be caused to the adverse party if they were to delete it. (See D.O.H. v. Lake Cent. Sch. Corp., No. 2:11-cv-430, 2015 U.S. Dist. LEXIS 20259, at *24 (N.D. Ind. Feb. 20, 2015)). A user simply changing his or her profile to private in order to block public access does not shield it from discovery. (See EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010)).
Painter v. Atwood outlined the court’s current approach on Facebook evidence spoliation if a party fails to preserve social media content that may be relevant after being put on notice that they will be party to a suit. (See Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)). In this case, the District Court of Nevada analyzed spoliation issues after the defendant's wife claimed that she saw relevant Facebook posts on the plaintiff’s Facebook wall before the plaintiff “unfriended” her on the site. Id. at 2. Although the plaintiff did not deny the existence of the posts, she refused to produce them during discovery and argued that she was only a 22-year-old girl who “would not have known better than to delete her Facebook comments,” because her counsel did not explain to her the obligation to preserve evidence. Id. The court was unconvinced by this argument and determined that sanctions should be ordered against the plaintiff because she had some degree of culpability when she deleted the posts. Id. at 9.
How Does Snapchat Break the Mold?
Currently, there is little to no case law dictating the management of disappearing messaging apps, also known as Ephemeral Messaging Apps (EMAs), in discovery. Because of this lack of case law, our only potential clues as to the future development of Snapchat social media discovery relate to other social media platforms such as Facebook. The Painter v. Atwood holding determines what happens when a party intentionally deletes relevant posts or photographs, but also highlights the issues that arise when the opposing party cannot prove relevance or spoliation. Snaps cannot be held to the standard of an Instagram picture or a Facebook post because, by their very nature, they cannot be preserved and subjected to legal holds. What duty to preserve can possibly arise when the entire concept of the application is untraceable social media communication? By the time a party was to be put on notice that a lawsuit may be arising, the Snapchat messages would be long gone regardless of their relevance to the case at issue. Unlike Instagram and Facebook posts that leave traceable metadata and browsing history, Snapchats make it nearly impossible to prove relevance or spoliation of evidence.
The lack of an electronic trail is appealing to teens and tweens for obvious reasons, but experts say more and more corporate users are popping onto the Snapchat and EMA scene in search of anonymity. In 2014, Shark Tank superstar Mark Cuban quoted in a Forbes Article, “I don’t want one of my texts taking on a life of its own and I find myself in a lawsuit because someone forwards or posts one of my texts.” (See Mark Cuban Wants To Take Over Texting, Forbes Magazine, https://www.forbes.com/sites/maseenaziegler/2014/04/08/mark-cuban-wants-to-take-over-texting/#32f035ae44ca (last visited Oct. 2, 2017)). Cuban is a backer of “Dust,” another EMA that advertises itself to corporate moguls as a “safer place to text.” With more and more Snapchat-like applications coming onto the tech scene, the issue of discovery preservation, custody, and spoliation among these communication mediums will undoubtedly be a growing one unparalleled by any other social media platform.
What is to Come?
When this discovery issue inevitably comes to the forefront among the courts, there is a split of public opinion as to how the justice system should deal with it. Some argue that these fleeting messages and pictures are more analogous to face-to-face conversations due to their private, short-lived nature and they subsequently fall outside the realm of eDiscovery.
Others insist that users should not be permitted to shirk responsibility for sending messages that they know will be deleted after they are sent and should therefore be subject to sanctions when they think a message may be relevant yet fail to save or “screen shot” their message prior to sending it. However, this opinion evades the question of “How?” How do we determine relevance of images that were only in existence for 10 seconds? Who has the burden of proving relevance if the pictures are no longer available to either party? How do we impose sanctions for spoiling evidence that essentially spoils itself—likely before litigation has even arisen? What information does Snapchat retain, in what format, and for how long? Because the process of recovering these images after they disappear is still unclear, there seems to be no concrete answer to these questions.
Allowing a party to essentially place blame on a mobile application for the spoliation of potentially relevant evidence would likely set negative precedent by promoting the use of these apps to evade an affirmative duty to preserve evidence. But holding the user accountable for the deleted information that they did not intentionally destroy seems to be an undesirable result as well. Courts in 2018 will likely be the first to deal with Snapchat’s newest eDiscovery conundrum, but until then, litigators beware: a discovery disappearing act is afoot.