This Selfie will Self-Destruct: “Secured” Messaging in the World of eDiscovery

Kasi Chadwick

February 5, 2014

During the discovery process, litigants request information from the opposing side or third-parties through requests for production or subpoenas. With the rise of social media, social media platforms have found themselves the recipient of these discovery requests in many situations. In employment litigation, employers may seek information contained on their employee’s social media sites via these discovery methods. Whether an employer is seeking information regarding non-compliance with the company’s morality policy or building a case to show an employee’s unauthorized sharing of the company’s proprietary information, no wall post, tweet, photo, email, text message, or even outlook calendar entry is securely outside the discovery process.

But what about “secured” message apps like Snapchat that allow its users to send “disappearing” messages? The answer, of course, is it depends.

By way of background, Snapchat is a smartphone application that enables users to send “disappearing” images. At least in theory, a Snapchat user can send photos, pictures, or short message (“Snaps”) to other Snapchaters and, after a designated time within the receipt of that Snap, (between 1-10 seconds depending upon the time limit set by the sender) the Snap will presumably disappear.

Yet, in the world of legal discovery, even Snaps could be the subject of a discovery hearing.

To begin, there are a variety of ways the content of a Snap could be compromised even without a discovery request. First, certain smartphones cache this sort of incoming information. This means a “secure” Snap, if sent to a recipient with this variety of smartphone, may be automatically saved in the recipient’s phone. Also, the recipient of a Snap could be using an app, like SnapHac Pro, which allows users to save their received Snaps to their smartphone photo gallery. Even without legal discovery tools, the security of the content of a Snap is not a sure thing.

Further, there may be ways to recover the content of a Snapchat via the discovery process. Because Snaps are only secure upon receipt, (assuming the recipient does not have a caching smartphone and is not using an app like SnapHac Pro) an unopened Snap may remain on the Snapchat servers for a period of time. Also, Snaps that are added to a recipient’s “Snapchat Stores” (which allows users to link Snaps in a sort of Snapchat timeline) also remain on the Snapchat servers for an extended time. If any of these things happen, the groundwork is set for a “secure” Snap to fall in the hands of a legal team seeking this information.

In the eyes of the law however, the content contained on social media sites generally is protected from civil discovery if the author of the content had “a reasonable expectation of privacy” at the time of the content’s creation. While protections for this type of content do exist, in the employment context, especially when an employer has obtained written authorization from her employee to access her employee’s social media accounts, there is a much higher likelihood that even a secure Snap could be compromised.

When an employer has written authorization from their employee, courts have allowed access to the content contained on other social media sites (e.g. Facebook and Myspace). As for the content of a Snapchat, only those Snaps still available on the Snapchat servers or cached on a Snap recipient’s phone may be subject to an employer’s request for access. If courts treat Snapchat content like the content of Facebook or Myspace, then an employer could, with employee authorization, obtain the content of certain Snaps via civil discovery devices. For now, because Snapchat is still a relatively new social media platform, only time will tell.