It is no secret that the means of communicating electronically are expanding at an ever-increasing rate. Within the last few years, e-discovery into communications has expanded from a largely email centered endeavor to one that includes texts, Facebook, Instagram, and other social media. More recently, the proliferation of messaging apps like Whatsapp, Viber, Snapchat, Marco Polo, Kik, Line, Slack and more have greatly expanded the potential sources of communications relevant to your case.
There are significant risks in failing to keep up to date. Offensively, your opposition may not be aware of these apps being used by their clients, and thus fail to identify them as ESI sources in the initial disclosure stages. If they fail to identify them, and you fail to specifically inquire about them, potentially important evidence will go undiscovered. From a defensive standpoint, an e-discovery practitioner needs to be aware of these alternate modes of communication in order to ensure meeting their duty to preserve evidence. As these apps continue to saturate modern society, it is almost certain that the legal profession will be adapting and seeking those communications in discovery, putting late-comers at risk of spoliation.
Understanding the current landscape of messaging apps can be an important addition to your discovery arsenal, both as a sword and a shield. We regularly advise clients on such issues and can consult on a co-counsel basis.