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Litigation Mission Impossible: This Message will Self Destruct

mission impossibleSeveral new phone apps, including one underwritten by Dallas Mavericks’ owner, entrepreneur and Shark Tank regular Mark Cuban, are shaking up the world of litigation.

Mark Cuban, after being charged by the SEC for insider training, based upon evidence found in text messages that he felt were taken out of context, created Cyber Dust, which destroys messages after they are sent. Cuban was eventually acquitted, but Cyber Dust endures.

Cyber Dust has its competitors: Snapchat, Conspire and TigerText, all of which offer apps that create instantaneous, short-lasting communication. Of course, taking a screen shot of any of these would produce admissible evidence.

Barring a screen shot, however, these communications disappear forever; at least that is what the developers say. Cyber Dust allows parties to send messages, with the knowledge that the messages are indeed not open to discovery in litigation procedures. Snapchat, the province of the teens, is now also being utilized in the corporate world to discuss deals, trades, and maybe even unsavory business practices.

Litigators who typically request all written pertinent communications as they prepare for a case, now have to consider these self destructing messages. Are these messages an example of “spoliation”? How will litigators handle a case without either an electronic or a paper trail? Most likely, litigators will have to treat these messages as they would phone calls, another ephemeral conversation that must be recalled by a witness. A wise litigator would be sure to ask not only about written and electronic communication, but also phone calls and these self-destruct messages.

At this point, no court has dealt with self destructing messages. We shall have to see if preemptive legislation makes a dent in the use of these apps or whether a court decision changes the behavior of litigants. It is possible that courts may bar litigants from using self destructing text messages beginning with the filing of court cases. This still would not address past “destructed” messages.

Courts have sanctioned parties for deleting social media accounts that were pertinent to pending litigation.

Dawda Mann attorney Suanne Tiberio Trimmer states, “While I know these self-destructing message apps are being marketed as beneficial in lawsuits since the messages are not available to be produced in discovery, I think they are more prone to creating problems because of the adverse interference that can be drawn from their use. Questions will be asked about why someone felt the need to use an app that destroys their messages, which may lead to a court instructing a jury that the app was used out of a well-founded fear that the deleted information would harm a party’s case. Juries do not react kindly to the suggestion that evidence was destroyed.”