Does Use Of Self-Destructing Messages Raise Spoliation Concerns?

Mark Cuban, entrepreneur and owner of the National Basketball Association's Dallas Mavericks, was charged with insider trading violations by the U.S. Securities and Exchange Commission in 2008. His defense against those allegations culminated in a 2013 trial, where Cuban was acquitted by a federal jury. Since the trial, he has publicly criticized the SEC's use of his electronic messages during the investigation, reportedly stating that "every message I sent, everything that I wrote, [the SEC] decided to create their own context."1 Turning his experience with the SEC into a business opportunity, Cuban created Cyber Dust, a mobile phone app that joins a growing number of apps that allow a user to send "self-destructing" messages. Cyber Dust reportedly markets itself as a product to be used by people "in a business with a lot of lawsuits" as a means to "save a lot of time and money because nothing sent or received on [Cyber Dust] is discoverable."2

Apps like Cyber Dust, Snapchat, Tiger- Text and others are no longer confined to users seeking to avoid embarrassing "selfies." Business users are increasingly choosing to communicate through self-destructing message apps instead of other forms of electronic communications such as text messages and email. As just one indication of the growing market for these apps, Snapchat recently obtained funding of $200 million in a deal that valued the company at $15 billion.3 These apps are being directly marketed to business people for their obvious benefits in protecting sensitive competitive information, trade secrets, and sensitive customer information, among others. These apps promise to provide users with the confidentiality of an oral conversation combined with the convenience and time shifting properties of electronic messaging. In the litigation context, however, these apps may also provide spoliation concerns for lawyers and their clients precisely because of these qualities.

Courts have not yet considered how to categorize self-destructing message apps, but the law's general distaste for missing records and the increasing popularity of self-destructing message apps makes a forthcoming confrontation likely. Indeed, Cyber Dust's marketing strategy tees the issue up by touting the app as designed to prevent the discovery of communications in litigation. In the short term, litigators will need to become knowledgeable of this emerging technology in order to effectively deal with clients or adversaries that use them. In the long run, perhaps it is time for the law to evolve in order to recognize the legitimacy of these modern communication methods.

Litigation Context

Litigators typically want to preserve all written communication and are inclined to be critical of self-destructing message apps. Because these apps potentially deprive attorneys of evidence to build a case, they also raise spoliation concerns. Spoliation, or "'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably...