Having risen to the challenge of email and instant messaging apps such as WhatsApp, how can the requirements of the discovery process be reconciled with the growth of “ephemeral messaging” and what do employers need to do to ensure that they are best placed to deal with their discovery obligations?
Ephemeral messaging apps are forms of messaging that are often only available on mobile devices. They delete automatically after a short period of time. For example, the Internet messaging application Snapchat provides a platform for such interactions. While there are certain advantages to these forms of communication in the workplace, they may not sit well with Irish discovery obligations.
This is because the obligation to preserve all potentially relevant documents once litigation is reasonably contemplated or already underway is well established under Irish law. This is known as a legal hold. In such a case, 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.
In addition, when making discovery, parties must list on affidavit each individual item covered by that discovery which they have previously had but which no longer exists. The tension between technology and the law could not be clearer. In this context, an organisation needs to understand how its staff communicates within the business and how this could potentially negatively impact on its legal position in litigation.
Employers should ask specific questions such as:
- Is the use of ephemeral messaging appropriate in our business?
- If so, do we have full oversight of the use of ephemeral messaging by our staff?
- What policies and procedures do we have in place to address the use of ephemeral messaging?
- Are staff aware of these policies and have they received any necessary training?
- Are specific disciplinary sanctions appropriate for breach of these policies?
- Are we ready and able to respond to a legal hold at short notice?
- Can we comply with any discovery obligations that may arise?
As the use of this technology becomes more mainstream in a business environment, there is significant potential for accusations of inappropriate destruction of evidence if appropriate and timely measures are not put in place. While this briefing focusses on discovery obligations, the considerations which arise here are equally applicable in a criminal or regulatory context.