What to Know About Ephemeral Messaging in Litigation
As the use of ephemeral messaging apps for personal and business communication grows, so does their prominence in legal disputes.
As their name suggests, ephemeral communications are transient, designed to automatically disappear after a specified amount of time. Some of the messaging platforms that commonly come up in legal disputes include WhatsApp, Snapchat, and Signal.
Although ephemeral messages can disappear quickly and permanently, businesses can still be legally obligated to preserve them if they are relevant to pending or anticipated litigation, or if the communications fall under other data retention requirements. To avoid civil and criminal penalties for failing to preserve discoverable information, legal teams need to understand the risks involved and have policies in place to manage compliance.
A string of penalties and spoliation sanctions levied against a variety of organizations over the last few years serves as a reminder that a laissez-faire approach is not sufficient — that just because these off-channel communications disappear, they don’t count.
Legal professionals should understand both their duty to preserve potentially relevant electronic information across media — including from ephemeral messaging apps — and to keep up with evolving technologies.
Why Can Ephemeral Messaging Be Risky for Business?
Ephemeral messages are designed to disappear through auto-delete settings that permanently destroy the information. Apps like Signal or WhatsApp can also encrypt messages on both ends. What’s more, any communication tool with an auto-delete option, including text messaging, can become an ephemeral messaging app when those settings are activated.
“It doesn't work like Mission Impossible where it blows up in your hands after you’re done reading the message,” said Steve Davis, VP of Forensics and Investigations at Purpose Legal, during an Everlaw webinar on ediscovery of modern data types. “You can create an ephemeral platform through anything if you have a delete setting that allows it to be gone within thirty seconds, one minute, or five minutes.”
While these features protect privacy, they can also create significant risks during litigation or government investigations. When litigation is pending or reasonably anticipated, organizations may be under an obligation to preserve electronically stored information, or ESI, that is related to the dispute, including data sent over ephemeral messaging tools. If executives or employees use these tools for work-related communication, critical data may be lost or inaccessible. This failure can expose the company to costly litigation, regulatory penalties, and even reputational damage, especially if the data is seen as deliberately destroyed.
To address concerns that these apps were being used to evade ediscovery obligations, the Federal Trade Commission and Department of Justice in 2024 reinforced in an announcement that businesses must preserve data from short-lived messaging apps. The goal was to ensure that legal counsel and clients couldn’t claim ignorance about business conduct via disappearing messages.
“The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence,” said Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division, in the release. “Failure to produce such documents may result in obstruction of justice charges.”
Tracking SEC Penalties and Court Sanctions
The Security and Exchange Commission and courts have also signaled that ESI from ephemeral messaging platforms must be treated like any other form of data in ediscovery.
This is reflected in recent penalties and fines against organizations that were found to not meet preservation obligations:
In 2021, the SEC fined J.P. Morgan $125 million for failing to maintain and preserve WhatsApp messages between workers in violation of federal securities laws.
In late 2022, the SEC fined more than a dozen Wall Street firms a combined $1.1 billion for failing to preserve business-related communications sent through “off-channel communications,” in violation of its federal recordkeeping requirements.
In early 2025, the SEC fined a dozen financial services firms $63 million in combined civil penalties for record-keeping failures linked to ephemeral messaging communications.
The courts have also reinforced the duty to preserve disappearing messages. It’s not just financial institutions that have been penalized. In 2023, a tech company was sanctioned for failing to retain internal chat messages as part of an antitrust case.
Read more about ediscovery challenges linked to ephemeral messaging and important case law rulings in “Ephemeral Messaging Data in Ediscovery.”
Navigating the Pros and Cons of Ephemeral Messaging for Business
To be sure, ephemeral messaging apps have business value. Auto-deletion and encryption provides a level of privacy and security that is ideal for sensitive communications. They also reduce the data burden; transient messages don’t need to be stored in large-scale data centers.
However, in today’s BYOD (bring-your-own-devices) environment, employees may use ephemeral apps for business communication without realizing the technical or legal consequences. And when ephemeral data is gone, it’s gone.
“We’re not magicians, and we can’t necessarily recreate things that are deleted,” Davis, the forensics expert, said. “In the case of most ephemeral platforms, you can't mount the SQL database and go there and find it. We can sometimes — with native applications like iMessage — still go in and find the information in a table or a database, but not so much on the ephemeral side.”
While deleted messages may sometimes be recoverable through synced backups or third-party devices, this depends on the platform and settings. Platforms like Signal or WhatsApp don’t back up by default, and recovery isn’t guaranteed, especially with end-to-end encryption, or if all parties delete messages permanently.
Avoiding Evidence Spoliation Through Planning and Management
To properly preserve business communications, legal teams need to develop policies to govern the use of personal devices and third-party messaging apps, including provisions to disable auto-delete functions on ephemeral platforms.
In-house counsel should understand what messaging tools employees use and clearly outline which ones are allowed for work communication.
“Shadow IT is a problem more than ever these days,” Davis said. “You have to make sure your people aren’t using platforms they’re not supposed to be using.”
During an investigation or litigation, legal teams should coordinate with IT to immediately disable auto-delete settings. The company’s litigation hold notices should include rules for preserving ephemeral and encrypted messages. Davis also stressed the need for active communications with custodians (the people who own or have access to potentially relevant ESI) about settings to prevent data leakage during legal holds.
Finally, it’s important to run regular workforce trainings to keep company policies top-of-mind and to educate employees about the risks and legal implications of using ephemeral apps for business.
Staying Vigilant in an Evolving Landscape
Ephemeral messaging tools are growing in popularity for the privacy and security benefits they provide. But if not managed properly in the workplace, they can pose significant risks. Legal teams must recognize that the obligation to preserve relevant data applies to these short-lived communications just as it does to more traditional forms of electronic evidence. The penalties and sanctions from regulatory bodies and courts underscore the need for proactive management.
Legal teams that help develop clear policies on ephemeral messaging usage, conduct regular training to ensure compliance across the organization, and keep up with new technologies put themselves in a position for greater success in a continually evolving business and regulatory environment.
Read more about ediscovery best practices ephemeral messaging apps and other collaboration platforms in the comprehensive guide, How Collaborative Tools Are Changing the Face of Ediscovery.
