By: Bryan Campbell, COO
From Wickr to TikTok, software apps with inadequate security and protocols have triggered headline-grabbing litigation and government investigations.
Apps also have become an increasingly tricky and expensive medium for recovering evidence during legal investigations and discovery.
In business, apps ranging from cloud storage to chatbots that allow you to communicate in real time with colleagues scattered around the globe, foster efficiency in completing work projects.
In the legal world, however, these apps can be a Pandora’s box of risks to sensitive company information, liability, and the potential of unrecoverable evidence.
One class-action lawsuit filed late last year suggests that the popular video app TikTok may even jeopardize national security.
The lawsuit alleges that TikTok surreptitiously “vacuumed up and transferred to servers in China vast quantities of private and personally-identifiable user data,” The Daily Beast reported in its breaking story. The main plaintiff in the case said the app extracted her personal data without her even setting up an account. TikTok has denied the allegation and claims that it stores all U.S. user data on servers in the United States with backups in Singapore.
Some apps can hamper discovery, making it incredibly onerous and expensive to extract evidence. In some cases, gleaning evidence from apps is impossible.
The complexity of encryption in some chat apps can require expensive digital forensics specialists to extract data. Apps that can’t be decrypted or in which messages have been automatically deleted can place a litigant in a difficult legal conundrum in which they are unable to fulfill their discovery obligation of producing relevant information to the opposing party.
Wickr, an encrypted messaging app that deletes digital communications in as little as seconds, took the spotlight in late 2017 during a trade secrets lawsuit between Google’s Waymo and ride-hailing app Uber. Before trial, Waymo discovered that Uber employees had been using Wickr to discuss self-driving technology and continued to use the app when Uber could have reasonably expected Google to file suit, the trial judge ruled.
Uber, in kind, pointed out that Google uses ephemeral messaging, as well, to guard trade secrets.
While the judge did not sanction Uber for destroying evidence, the use of the app could cast suspicion on companies who are found using ephemeral messaging before or during a litigation.
In his prediction for eDiscovery trends in 2020, one eDiscovery chief innovation officer told Legaltech News’ Zach Warren that eDiscovery will continue to be bombarded by atypical data sources as ephemeral messaging, IoT device data, collaboration tools and app-based information becomes increasingly relevant to investigations and litigation.”
He advised providers to invest in advanced analytics as “linear approaches” to eDiscovery will become “untenable.”