Navigating the Legal and Ethical Challenges of Ephemeral Messaging Apps in Business Communication

According to an article by Mike Quartararo, President of the Association of Certified E-Discovery Specialists (ACEDS), the proliferation of messaging applications, many of which offer encryption and ephemeral messaging features, presents both opportunities and challenges, particularly in the realm of business communication. While these apps may be suitable for personal or family use, their use in business settings raises legal and ethical considerations.

From a legal perspective, Quartararo says it’s essential to recognize that no source of electronically stored information (ESI) is exempt from discovery obligations. Courts typically require the preservation, collection, review, and production of relevant data in litigation or regulatory inquiries. However, ephemeral messaging apps pose a unique challenge as the data disappears after a short period, raising questions about preservation and collection efforts.

The consequences of failing to preserve ESI can be severe, as evidenced by cases like JP Morgan Chase & Co. and Goldman Sachs facing fines and employee terminations for mishandling messaging data. To mitigate risks, organizations should reconsider allowing the use of ephemeral messaging apps for business purposes.

One crucial step Quartararo suggests is to revise data and information governance policies to prohibit or discourage the use of such apps for business communications. Additionally, employee training can raise awareness about the risks associated with these apps and emphasize compliance with organizational policies. Organizations must enforce consequences for violating these policies to deter employees from engaging in reckless behavior.

Furthermore, business leaders and IT professionals should ensure adherence to data retention policies to prevent the unauthorized deletion of relevant data. While some data may be permissible for deletion according to retention policies, organizations must assess whether legal requirements necessitate its preservation.

The use of ephemeral messaging apps poses significant challenges for legal practitioners and organizations alike. Clear policies, robust IT capabilities, and comprehensive training are essential to mitigate risks associated with these apps and ensure compliance with legal obligations regarding data preservation and discovery.