I am getting the feeling you are being disingenuous: a record is a record, a records that gets deleted after 24 hours was still a record. This is a truth based only on the meaning of the word "record". The chat application was not kept from preserving history, it was designed to actively delete history after 24 hours
If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...
Everything you do on a computer is recorded, at least ephemerally, in the computer memory. Does deleting stuff from the memory count as destroying evidence? If not, how is it different from deleting stuff from somewhere else? I mean, deleting information that is not used is part of how computer operate, if you're going to disallow that, you better have a pretty huge tech infrastructure to store all those memory dumps from every workstation Google has every second or so.
> Does deleting stuff from the memory count as destroying evidence?
Maybe? The line is more blurry here, but there are probably cases where it's more or less easy to make the distinction.
If data is recorded on a permanent medium, it can be arbitrarily retrieved, an explicit delete operation is needed to get rid of it, and this deletion can be scheduled to happen at an arbitrary time - that might easily be understood as "destroying evidence".
If you want asynchronous communication, you will need to produce records of some kind, which can be evidence. That's nothing new.
Maybe if you have a system where the information must be exchanged live and falls off a cliff immediately no matter if it was observed or not, say, like a video conferencing tool - I wonder how the courts see that. It gets much closer to an interesting edge case than something with a 24-hour retention policy.
RAM is permanent as long as you don't pull the plug. If you've been told to preserve evidence, and still pull the plug, then you did not do what you were told to do.
Silly analogy: person on lit hold writes a message in the sand on a beach with the tide out. Are they obligated to preserve the message before the tide erases it naturally?
If a judge thinks so, yes. So you should err on the side of caution, while being a good and ethical participant in the judicial process, and take a picture of it.
If this would be detrimental to your case, perhaps stop doing shady shit.
You have constructed a hypothetical case where the answer would likely depend on facts and circumstances beyond what's written.
That such cases can exist doesn't mean it's not clear-cut here.
In the vast majority of cases, two engineers will agree on the question "is this data persisted or ephemeral" and the fact that the line is blurry doesn't mean we can't know when it's been crossed.
I admit I am playing the devil's advocate, but not trying to be disingenuous. The intention behind an ephemeral chat application is to allow private communication without creating a record. From the end user's perspective, the messages are thought to be self-destructing objects that are kept just long enough to be read by their recipient. The way this is achieved in practice is an implementation detail that end users are not necessarily aware of. I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded.
An analogous real-world situation would be a meeting in a room where someone uses the whiteboard to draw some diagrams and erases it at the end. If we apply the same logic, you would be under obligation to take pictures of the whiteboard and send them to the court? Or even that you should record the whole meeting? Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.
> Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.
Well that’s kind of the whole thing with discovery - the court is asking the company to disclose relevant information (some of which will be against the company). Companies here have different disclosure requirements to an ordinary individual.
And if new evidence is being created, that new evidence would be subject to the same data request.
> I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded.
Most corporate messaging apps have built in functionality to handle litigation holds. This is a requirement for legal compliance, so the company would have to train and brief employees on their legal responsibilities to not destroy evidence during the litigation.
> I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded.
The company must educate its employees because the company has obligations. A limited-liability corporation is a legal fiction granted extraordinary protections by a society. That corporation had damned well better be a good citizen of that society. If that means erring on the side of caution? Good.
If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...