The Challenges of “Deleted” Data

shutterstock_308641526Some applications such as Snapchat became famous for allowing users send 10-second picture messages that were “deleted forever” after being opened for 60 seconds. In theory, this feature offered the opportunity to go off the grid; to send controversial messages without the risk of getting caught. In reality, those messages, also known as electronically stored information (ESI), left metadata behind even after deletion. The “deleted” messages were not “deleted forever” but could in fact be recovered.

Nothing is really deleted. Wherever there is metadata, there is discoverable data.

In the context of litigation proceedings, Fed. R. Civ. P. 26(b)(1) permits discovery of ESI regarding any non-privileged matter that is relevant to any party’s claim or defense, and proportional to the needs of the case. A “deleted” picture message may therefore become source for contention, and a party who intentionally used an application to avoid creating evidence may be held accountable in a motion for spoliation sanctions.

The doctrine of spoliation refers to the improper destruction of evidence relevant to a case. How do judges determine whether the spoliation of evidence is sanctionable? They look at three factors:

  • There was a duty to preserve evidence;
  • The spoliation was negligent or deliberate; and
  • The spoliation prejudiced the other party’s ability to present its case.

Additionally, the amended Fed. R. Civ. P. 37(e) applies specifically to ESI spoliation. The rule states that spoliation of evidence is sanctionable if there was a duty to preserve evidence, the spoliation was negligent or deliberate, and the lost information cannot be restored or replaced through additional discovery.

What this means in practice is that deleted evidence may not automatically give rise to sanctions if the same data exists somewhere else. Some legal experts expressed concerns about over-preservation of ESI in response to Rule 37(e). However, efforts to restore lost ESI should be proportional to the importance of the ESI to the claims of defenses, thus removing the over-preservation burden on the parties.

As new methods of communication are developed, the universe of potentially discoverable ESI continues to expand. Whether data is transferred through falsely-proclaimed “auto-deleting” applications, social media, text messages, chat rooms, emails, and any other kind of application or device that creates metadata, proper information governance plays an essential part in litigation, not only to avoid evidence spoliation and sanctions, but to know where relevant data resides. As a result, litigation holds need to clearly explain that all electronically transmitted data may be subject to preservation and eDiscovery.