Spoliation Risk With Ephemeral Messaging Platforms

There is a clear spoliation risk with ephemeral messaging platforms. The SEC and Commodity Futures Trading Commission have fined financial institutions billions of dollars for failing to preserve “ephemeral messaging communications.” In January 2024, the FTC and DOJ announced that the preservation of data from ephemeral messaging platforms is a standard document preservation duty, and failure to do so will be treated as spoliation, or even criminal obstruction of justice.

In a business alert, the Thompson Hines firm calls this “unsurprising given DOJ’s view that ephemeral messaging applications are ‘designed to hide evidence.’”

Ephemeral messaging generally refers to communications on platforms like WeChat, Slack, Signal, WhatsApp, and Snapchat that allow for end-to-end encryption, disappearing messages, or short-term auto-delete capabilities. Simply using ephemeral messaging tools might be construed as intentionally spoliating evidence in bad faith.

Nevertheless, employees at all levels, including C-suite executives, continue to use ephemeral messaging both for personal reasons and to engage in business-related activities.

According to the business alert, that includes supervisory personnel charged with enforcing policies prohibiting the use of “off-channel” communications platforms.

The alert has some suggestions for mitigating the spoliation risk with ephemeral messaging:

• Assess the extent of ephemeral messaging in your company, possibly annually. Survey employees on whether they use the applications personally or for business.

• Evaluate policies and procedures based on the assessment. Possible revisions include a blanket prohibition on communicating about business other than by firm email or firm-specified applications or devices, or it could permit the use of certain ephemeral messaging platforms under circumstances based on business needs and risk profiles.

• Train employees on the policies. Merely instituting a policy and conducting some rote annual training is unlikely to affect employee conduct or satisfy a firm’s preservation obligations. Both the SEC and DOJ have rewarded firms that identify and punish individuals who violate these policies.