Self-destructing messages used to be found only in spy shows like “Mission Impossible.” But new messaging apps like teen-favorite Snapchat and the newly released Confide have brought the concept of self-destructing messages into the mainstream. Each of these apps has, at its core, the goal of making sure that the pictures or text you want to communicate are visible to the recipient for only a certain period of time. After that, they’re gone and cannot be retrieved.
If you haven’t used apps like these before, here’s what they do. Snapchat allows you to take pictures and send them to recipients who can only view them for a time period that you determine, and then they’re gone. They’re not stored on your device in any way (unless, of course, you manage to take a screenshot while the picture is on the screen, which is not easy to do since you have to keep one finger on the screen when viewing the picture.)
Confide, on the other hand, is designed solely for text. Messages arrive in the Confide app and each word is completely blocked out (resembling redacted text). You read the message by sliding your finger over the blocks, and as you do, the text reveals itself momentarily and then gets covered back up. Once you close the message, the blocks fall down and the message is gone forever. (The Confide website demonstrates how this works.)
Setting aside what these apps are primarily used for–let’s be honest, these are, as of now, primarily “sexting” apps–the success of these apps reveals the strong demand for communications that leave no trace. If apps like these make their way into the enterprise–and there’s no reason to think they won’t; remember all the IT “geniuses” that once proclaimed that business people would never ditch their Blackberries for iPhones?–there could be a dramatic effect on discovery in future litigation.
Our current discovery framework is based on the concept of discovering what evidence the opposing party has, and most of that evidence is assumed to be some form of a “document.” And “documents,” in turn, are presumed to have some sort of permanence, either in a box or desk drawer, or, increasingly, on a server somewhere. Documents (including emails) are created and then put somewhere; they are things to be maintained. That’s why our current discovery rules deal with spoliation and document preservation policies. Documents, as we know them currently, don’t make themselves go away. Somebody has to destroy them, and if they do so wrongly, they can be punished for that.
But what if the document destroys itself? How do we ensure that parties that should be maintaining such documents do so? Assuming that a party isn’t already under some legal obligation to communicate in a certain way, such as certified mail, or to keep documents for a certain period of time, I can’t see how a party who receives a critical communication–one that we would normally expect to be maintained in the ordinary course–can be fairly sanctioned for failing to maintain that communication if the message self-destructs on its own. Moreover, I don’t see a party being sanctioned for choosing to communicate through platforms whose messages self-destruct because the rules today don’t require that communications take place only through certain platforms. Nonetheless, the question remains: how do we discover that which destroyed itself?
Fortunately, the vast majority of documents and communications these days still take place through more traditional and established means, like mail and email, and discovery as we know it goes on. But just like when Steve Jobs first held up the iPhone, the world is on notice that a change is coming.