Self-Destruct Apps: Spoliation by Design?

Abstract

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. Privacy policy in the US and Europe encourages “privacy by design,” the idea that privacy-enhancing features should be built into the very design of new technology. Self-destruct apps, like Snapchat, Confide, and Vaporstream, embody privacy by design by offering ephemeral communication tools that mimic live conversation and avoid permanent records. At the same time, the Federal Rules of Civil Procedure contemplate broad access to relevant information, including electronically stored information, and impose potentially serious consequences in litigation when relevant information is not preserved.

This essay analyzes the impact self-destruct apps, like Snapchat, will have on civil discovery and explores the tension between privacy policy and preservation duties. It cautions against characterizing self-destruct apps as spoliation by design: onerous or overly expansive preservation duties for self-destructing content are not warranted or desirable. In some contexts, ephemeral messaging may be more akin to live conversation than email, and the Federal Rules need not assume spoliation by their mere use by individuals and businesses.

Keywords: Federal Rules of Civil Procedure, Preservation, Spoliation, Discovery, e-Discovery, ESI, Electronically Stored Information, social media, ephemeral messaging, ephemeral apps, self-destruct apps, Snapchat, Wickr, Confide, Vaporstream

JEL Classification: K10, K19, K30, K33, K39, K40, K41, K49, M10, M13, M15, M19, M38, M48