Any child of the 1980’s will now be instantly transported to a tv set where a look of bewilderment appears on Inspector Gadget’s boss’s face just as the message explodes. For that nostalgic moment, you’re welcome.
I never thought I would be quoting Inspector Gadget in a law posting…and yet here we are. If this doesn’t tell you that litigation keeps you on your toes, I don’t know what will.
Three relatively new applications, Cyber Dust, Snapchat, and Tiger Text, all do essentially the same thing – they attempt to permanently delete a message after a set period of time. For Snapchat and Cyber Dust, this time is pre-determined. For Tiger Text, the user can set the time for self-destruction.
Are these programs affecting a party’s obligation to disclose information and documents? Are these programs any different than shredding an internal memo or sticky note?
In my opinion, the Rules of Civil Procedure actually govern this situation. I would argue that a party would be required to note in Schedule C of their Affidavit of Documents that they had conversations on a program that self deletes the messages. Counsel could follow up by exploring why a party uses such programs and could seek to rely on spoliation to draw an inference that the information would not be helpful.
The key to spoliation is intent. Specifically, did the party intend to delete information for the purpose of affecting future litigation and denying information that would be detrimental to their cause? I would suggest that the use of the program itself should create a rebuttable presumption that the party intended to destroy information.
I anticipate this will become an issue in Ontario shortly. It is not permissible to set Outlook to automatically delete emails; beyond a purely technical sense how is automatic instant messaging any different?
Please don’t crumple this posting into any unsuspecting garbage cans or mailboxes. Your boss thanks you.