Nearly gone are the days of paper memos and letters as primary modes of correspondence in the workplace. For years now, it seems, the vast majority of business has been conducted at a faster pace via electronic communications – emails, texts, etc. And, during the mere seconds it takes an electronic communication to be sent, the sender loses all control due to the recipient’s ease of redistribution. Now enter a host of apps promising to remove any trace of the communications they support. Pictures and messages sent via Snapchat self-destruct after the recipient views the media; Confide allows users to send self-destructing mobile messages for “off the record” conversations; TigerText, whose messages also self-destruct, boasts that the app can be used to “securely text with co-workers” and to “comply with HIPAA, SOX, and other regulations.” But what are the legal ramifications of this technology in the workplace?
As you can imagine, the law does not keep up with the pace of technological developments. There is often a devastating lag between the widespread use of technology and the inevitable effects on our legal battles, office policies, and compliance matters. Perhaps the most notable areas of concern with the use of self-destructing messages in the workplace are sexual harassment, personnel matters such as hiring and firing, and document retention. Despite the deletion of the message, the communication still occurred and evidence of communication still exists in some form or another. It could be in the form of the app developer’s internal records of a message being sent by Person A to Person B on a certain date and at a certain time, which could be subject to subpoena. Or, it might exist only in a participant’s memory, meaning it comes down to an issue of proof. Would you want to sit in front of a judge or jury under oath and testify to a message you received two years ago that existed for mere seconds of which you have no record? For most business situations, if something were to go wrong, some record of the communicated information would likely prove helpful.
Not surprisingly, document retention required by office policies or upon the existence of active or anticipated litigation could be seriously compromised by use of these apps. In a recent New York Law Journal article, Peter Isajiw and John Vazquez point out that,
Sending communications through a system that makes deletion automatic (and perhaps irreversible) is not likely to excuse noncompliance with any legal or ethical obligation to preserve documents. Lawyers and compliance professionals will need to be vigilant to ensure that corporate personnel are not inadvertently violating document retention obligations by using these services, thereby exposing themselves or their employers to sanctions.
Isajiw and Vaszquez go on to note that because our legal rules are based upon decades of paper-based records, it is challenging to make “predictions about a court’s potential view of these applications in regulatory or litigation contexts[.]”
While the legal system’s development may never be on pace with that of technology, businesses will benefit from periodically reviewing their office policies regarding technology use and document retention to minimize potential exposure and ensure that employees remain compliant.