Focus on Ethics & Civility

• Jurisdiction: Utah,United States
• Citation: Vol. 31 No. 2 Pg. 40
• Pages: 40
• Publication year: 2018

Focus on Ethics & Civility Vol. 31 No. 2 Pg. 40 Utah Bar Journal April, 2018

March, 2018

A New Frontier in eDiscovery Ethics: Self-Destructing Messaging Applications

Philip J. Favro and Keith A. Call, J.

One of the most watched lawsuits in recent memory involved a key ethical issue of which lawyers should be aware: the dangers of using self-destructing messaging applications.

In Waymo v. Uber, tech titans Google (Waymo) and Uber waged an epic battle over the future of self-driving vehicle technology. Waymo (Google’s autonomous vehicle unit) claimed Uber stole its self-driving vehicle technology in order to develop its own fleet of autonomous vehicles.

Discovery in Waymo was contentious, with Waymo accusing Uber on multiple occasions of destroying information relating to the alleged trade secret theft. In response to allegations that Uber used self-destructing (or ephemeral) messages to eliminate relevant evidence, the court issued a discovery sanction against Uber. Waymo was allowed to present evidence and argument to the jury that Uber used self-destructing messages to deliberately conceal evidence that it had stolen trade secrets. In turn, Uber was permitted to present evidence and argument regarding the legitimate business uses of ephemeral messaging. See Waymo LLC v. Uber Technologies, Inc., No. C 17-00939 WHA, 2018 WL 646701 (N.D. Cal. Jan. 30, 2018).

Four days into the trial, the parties settled the case, with Waymo taking a $245 million investment stake in Uber. While the jury ultimately heard little testimony about self-destructing messages, the discovery lessons from Waymo have far-reaching application.

Self-Destructing Messages

One of the practical lessons from Waymo is the need for lawyers to understand the nature of self-destructing messaging applications and the ethical and legal perils they present.

Self-destructing messages enable users to share and then delete content within a particular amount of time (ranging from minutes to days) after receiving the message. Different applications offer a menu of competing features. They include the ability to control distribution of messages (to a small group versus a community of users), message encryption, private messaging capability, prevention of screenshots, untraceable messages, and removal of messages from others’ devices. Common self-destructing messaging applications include Wickr and Telegram (the apps Uber used), along with Snapchat and Confide.

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