Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021).
Phil’s blog discusses the importance of understanding the features of various messaging programs. I have recently blogged about a District of Maryland decision that conditionally approves of using non-forensic downloading tools to preserve and collect such data. See, Blog, “District of Maryland Gives Qualified Approval of Non-Forensic Downloads of Social Media.”
Phil explains that, while Snapchat is an ephemeral messaging application, “Snapchat does allow users to preserve images and videos. Referred to as ‘Snaps,’ users may save images and videos on Snapchat as ‘Memories.’ To save Snaps as Memories, users must take affirmative steps to ensure the information is retained.” Citing Doe v. Purdue University, 2021 WL 2767405 (N.D. Ind. Jul. 2, 2021), Phil points out that a basic internet search will explain how to retain this information.
Phil also points out that, in Doe v. Purdue University, the court admonished plaintiff’s counsel for “delegat[ing] the inquiry regarding how to retrieve Snapchat data to Plaintiff.”
Phil concludes that:
Purdue University spotlights the need for lawyers to take charge of the discovery process and more readily ensure that relevant information is safely accounted for in litigation. As part of that duty of inquiry, counsel must investigate and reasonably understand client information and communication systems that may have relevant information. This is particularly the case with dynamic data sources like Snapchat and Slack, even though satisfying that duty may involve learning technical details which could be difficult for counsel to grasp. As Purdue University makes clear, this duty cannot be passed off to the client.
I could not agree more. See, Blog, “Maker’s Mark: A Different View of Self Collection,” “Unsupervised Self-Collection Predictably Led to Problems,” and “Self-Identification and Self-Preservation: A Fool for a Client?”
UPDATE: Craig Ball’s post emphasizes this point, stating that: “Custodial holds don’t fly. Just telling a client, ‘don’t delete relevant data’ isn’t enough and a misstep oft-cited by courts as attorney malfeasance. Lawyers must guide and supervise clients in the identification, preservation and collection of relevant evidence.” A Dozen Nips and Tucks for E-Discovery | Ball in your Court (craigball.net) (Jan. 3, 2022).