#CaseoftheWeek Episode 31: Don’t Ghost When it Comes to Preserving Snapchat Data

Our #CaseoftheWeek for this past Tuesday looks at social media platform Snapchat and how a failure to preserve data or lack of proper client supervision on preservation of social media can lead to sanctions and spoliation. The case we discuss is Doe v. Purdue, 2021 WL 276405 (N.D. Ind. 2021) presided over by United States Magistrate Judge Joshua P. Kolar.

Good morning and welcome to our #CaseoftheWeek for July 13, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. Thanks so much for joining me today. As you know, through our partnership with ACEDS each week, we talk about a different case from the eDiscovery Assistant database and platform and review with you the practical implications of that case for you, your practice, and your clients and what it means.

As always, the public link to the case that we’re going to discuss today is available in the comments section of whatever platform you’re viewing us on, whether it’s LinkedIn, YouTube, Facebook or Twitter. You can also find a link to our annual report from 2020. Today you’ll also find a link to some terms and conditions on information related to Snapchat, which is the subject of our case today.

We just launched our new website over www.eDiscoveryAssistant.com, so hop over and sign up for our blog, which is under the resources tab on the website, to be able to receive the weekly case law newsletter. If you don’t catch us live, you can receive it when it comes out on Thursday in the form of a newsletter and also other blog posts coming from our blog. Right now, we’re still in the middle of our protocol series for ESI. Our newest one on form of production will be coming out this week.

All right. Let’s get into this week’s case.

I’m super excited about this week’s case because we’ve got a judge who really dove into the nitty gritty of how a new social media platform really works and how that relates to a request for sanctions and spoliation from existing case law. It’s really taking the existing standards that we have that are becoming better and better defined and applying them to a new technology and what that means. I still think we’ve got some issues in terms of the ability of one party to be able to show bad faith but this case is just a phenomenal one, and I fully commend you to reading it. It’s just a great and well-written decision by Judge Kolar, who’s the United States Magistrate Judge in the Northern District of Indiana.

As I mentioned, this is an excellent case that I really want you to take a look at, specifically because of the way that the judge goes through the process of having the parties inform him about the technical abilities of the application, what can be maintained and what is not maintained. This is particularly appropriate for the Snapchat application, which if you’re not familiar with Snapchat, you need to get familiar with Snapchat and the link that I’ve sent you will do a little bit for you. Snapchat is an application that’s really considered social media that is largely used by teenagers to send small videos, images, just quick snapshots of themselves or other things to friends within the application, but those “snaps” disappear pretty quickly. The Court goes through a completely detailed discussion of the ways in which information can be maintained in the application and how that information is kept or not kept by users and what happens on the other end for Snapchat. Let’s dive into our case.

As I mentioned, this is a case this decision is on a motion for sanctions. Technically, the defendants actually made a request for issuance of an order to show cause regarding plaintiff’s noncompliance with an order and spoliation of evidence, and the reason that that’s kind of fashioned that way is that the relief that the defendant sought is to have certain claims stricken from the amended complaint. Ultimately, the Court decided not to do that because there’s a different standard that was not met for dismissal and we’ll get into that. Essentially, as I mentioned, we’re looking at a motion for failure to preserve Snapchat by the plaintiff.

As always, the timeline in the case is what’s critical. And so we’ll start with that in September. On September 25th of 2019, the defendant served an interrogatory to the plaintiff requesting, “all social media websites or applications that you used, participated on, posted photos, opinions or statuses or otherwise had an account with/on at any point during or after August 2015 and for each state, your username, account, name or any other identifier for your account”. At the same time, the defendant propounded a request for production that requested all of plaintiff’s social media postings from August 1, 2015 to the present. So as of September 25th, when those discovery requests were served, that’s going to be at least a bottom line for when a duty to preserve social media evidence arose for the plaintiff. Clearly, there are probably earlier dates with regard to the filing of the complaint, but at a minimum that September 25, 2019 date is going to start their duty to preserve.

On November 8th, 2019 the plaintiff responded and identified only Instagram and Facebook as platforms on which he had an account and then objected to the request for production but did not produce any information. On March 11th of 2020, the defendant served a second set of interrogatories and request for production, asking specifically for data from any Snapchat account owned or operated by the plaintiff listing an account name, so the defense counsel had a specific account name, and provided a link for how that data for the account could be downloaded in its entirety. So in the request for production, the defendant actually gave the link to the plaintiffs on how Snapchat provides for its data to be downloaded.

The plaintiff objected, saying that the account contained no data that was relevant. The defendant then filed a motion to compel the Snapchat data. At this point, we know that the defense counsel had to have done their own investigation and found out that plaintiff had a Snapchat account because that’s not something that the plaintiff had previously disclosed.

Once the defendant filed the motion to compel, the parties then met and conferred and entered into a joint stipulation in which the plaintiff agreed to provide, “a complete data download of all Instagram and Snapchat data from his accounts from August 2015 to the present”. The Court then entered that stipulation as an order and the motion to compel was withdrawn.

Now, that was in March of 2020 or shortly after that. In July of 2020, the defendant filed a motion for sanctions stating that the plaintiff had failed to comply with the court order producing the information for the Snapchat account.

At this point, the Court looked at what whether the plaintiff was under a duty to preserve and found that it was. It also found that the plaintiff took a step to affirmatively delete information from his Snapchat account and that the plaintiff, in response to the motion, filed a declaration stating that Snapchat did not archive content files and did not retain user information past 30 days, and their counsel also filed a declaration that basically reiterated that same information. The plaintiff responded to the motion to compel essentially by saying there’s no data that’s maintained by Snapchat, so there is no data. Again, this is different from what he said initially, which is there’s no relevant data. Now he’s saying there’s no data that’s maintained by Snapchat.

This declaration came, and we learn this later, that this declaration came after the plaintiff followed the link that the defendants gave them in the original request for production. Remember I said that he gave them the link to how Snapchat says to download the data. He downloaded the data and and found that it contained only account based information. So this is what the plaintiff said, it contained only account profile friends and usernames, but no content. So no images, no videos, no actual snaps. The defendant argued at that point that the plaintiff had agreed to provide it and thus waived any potential relevance objections because the plaintiff was still on that bandwagon, and also stated that Snapchat collects information in multiple ways, including Snapchat history, chat history, user profile, friends, account history, location history and search history.

On September 24, 2020, the Court then ordered the plaintiff to provide data consistent with the stipulation but denied sanctions for the defendant at that point. Fast forward a month to October 26, 2020, and the defendant filed the current motion asking the Court for an order to show cause for noncompliance and alleging that the plaintiff produced some of the Snapchat data but deleted certain files that were subject to the stipulation in order.

A court then held an evidentiary hearing on February 22, 2021 and asked for supplemental briefing about what data the Snapchat mobile application and Snapchat website reflected was available for users to download and when the downloads at issue occurred. Basically, the Court wanted to understand what does Snapchat do as far as maintaining data, and how did that comport with the dates in this particular case. At what point was information available? At what point was it deleted and how does that comport with dates related to this case?

The order from the Court in February required the parties to file a report with exhibits showing via screenshots if necessary or describing in full the screen displays that existed as plaintiff would have seen them when he completed a download of his Snapchat data. Then in April, the parties filed separate reports with the screenshots.

Now we’re at the analysis of the Court looking at the functionality of Snapchat and at when the duty arose for plaintiff, what affirmative steps were taken to delete information, and whether that contributed to bad faith, or whether that rose to the level of bad faith for purposes of sanctions.

The Court starts with a three-part analysis of when sanctions are appropriate and what sanctions are permitted for spoliation. Now, we’ve talked about these three elements many times, but it’s always worth going over them in the context of the Court’s analysis.

First, has the duty to preserve attached. We talked about the dates related to that. Was there a breach of the duty to preserve and was the destruction of evidence done in bad faith? The Court specifically notes—I really do commend you reading this opinion because it is so well written and lays out all of the Court’s obligations in considering these issues—the Court notes here that in the context of spoliation, bad faith means that evidence was destroyed “for the purpose of hiding adverse information.” That’s the standard that the defendant has to be able to meet in order to get bad faith and terminating sanctions.

Now, in its analysis, the Court starts with an overview of Snapchat and the mobile app, which allows users to record photographs and videos called snaps, and then those snaps can be sent to other Snapchat users who are the user’s friends on the app. What’s important to note about Snapchat, and again, if you’re not familiar with this technology, you need to get familiar so you can at least have bare bones knowledge for purposes of dealing with this with your client, a snap appears only for a few moments before it disappears. Snapchat is built on the premise that once the user sees the content, unless the user takes active steps to save that content, that content will disappear. It is deleted. If I’m a Snapchat user and I click on a snap that someone sends me, it will be deleted as soon as I view that content, it is set to delete.

Now, if a user wants to save a snap as what’s called a memory, then a user has to take an affirmative step to click on an icon and there are a couple of other steps to be followed, but you have to actively take a step to save information so that it will not be deleted. When information is deleted from your device, a message is communicated to the Snapchat servers that that information is also to be deleted and it is deleted as soon as possible from the Snapchat servers. Once it’s deleted from your phone, it will be deleted from Snapchat. There will not be a way to recover it. Snapchat’s information online specifically says there is no way to request a snap from Snapchat. You just can’t get them back. So, unless the user saves information as a memory, that information is not going to be available.

Plaintiff, at first, in response to the initial order in July, produced a Snapchat download of his memories, but ignored the warning in the download that the links would expire after seven days and did not produce them to the defendant until September, which meant that the links in the report had expired. The report itself shows the metadata with links to the actual posts or snaps. We need to make sure I get my social media platform lingo correct, so links to the actual snaps. But those links had expired because of the time in which the plaintiff produced the information to the defendant. The plaintiff subsequently produced a new download, but when the defendants compared the first download report to the second download report, they found that 11 links to videos and images that were listed in the initial production were deleted. There were no links to those snaps. So, the defense went to the plaintiff and said, hey, what happened here? You’ve obviously deleted the links to those 11 snaps.

The plaintiff acknowledged that he had deleted the files but did not know that they would be deleted from his account or the Snapchat servers entirely. That’s hard to swallow and it’s hard for the Court to swallow here, because if you read the terms and conditions from Snapchat that are in the links to the platforms that we’re looking at here, you’ll see that it says very clearly what happens when a Snapchat is deleted. So it’s very hard to swallow here and it sort of flies in the face of reality.

Based on all of this information, the Court found the following facts in terms of looking at the spoliation analysis: that during the relevant time period, the plaintiff saved as memories at least 86 images and videos to his Snapchat, and that those were available on the initial download report that the plaintiff did in July. Subsequent to that, but before the September download, 11 snaps were deleted from plaintiff’s memories in the application.

Based on those facts, the Court went into the analysis of spoliation for potential sanctions. As we look at the three steps for spoliation, the Court looked first at the duty to preserve, and here the duty to preserve was pretty clear, right? I mean, generally speaking, you’ve got a duty to preserve any type of ESI, regardless of whether or not it’s specifically asked for by the other side, but in this case, the defendants not only asked for any and all social media platforms and for the plaintiff to identify any accounts that he had, but then in subsequent discovery requests, asks specifically for the Snapchat account information. It’s clear that there was a duty to preserve and there was also the joint stipulation of a court order that was ultimately entered into in which plaintiff agreed to provide that information. Multiple levels as far as a duty to preserve goes, so really no question that we satisfied that element for spoliation.

Now, breach of the duty. Did the plaintiff breach his duty to preserve Snapchat information? Pretty clear here that he did. The plaintiff, in fact, admitted that he did because he deleted those 11 snaps. The Court also points out in great detail and really well done, I’m so impressed with this particular decision, that an internet search of Snapchat policy reveals how the application treats deleted information and that’s exactly the link that I gave to you in the comments here. So, we’ve got a duty to preserve and we’ve got a breach of that duty. The next question becomes, do we have bad faith?

In order to determine whether evidence was destroyed for the purposes of hiding adverse information, which is our standard for bad faith, the Court must quote “a) assess the actual evidence which one can typically not do because the evidence no longer exists, or b) infer that intent based upon when the destruction occurred in relation to the destroyer’s knowledge that the evidence was relevant to potential litigation”.

Under that standard for bad faith, of course, we can’t do choice (a) because the evidence no longer exists, and (b), is really whether or not we can infer bad intent. Of course, that’s what the defendants argued, that based on the fact that the plaintiff deleted the information between the first time they downloaded the report, and then provided it too late for the links to be valid. And the second time they provided the report in time for the links to be used, he had deleted 11 of them.

The Court said, well, we believe the plaintiff that he said he deleted the files to free up space and memory on his phone rather than out of an attempt to hide their content from the defendants and as such, with that basis, you had nothing but the defendant’s speculative assertions to the contrary, and the Court found that plaintiff did not delete the files for the purpose of hiding adverse information. No bad faith as far as spoliation goes.

In this instance, the Court does not impose sanctions for spoliation because we lack the bad faith, but then does go on to evaluate additional sanctions for misconduct, for failure to obey a court order and for failure to preserve under Rule 37, basically the Court looks at Rule 37 and throws the book at the plaintiff.

The party’s failure to comply with the discovery order is in bad faith, I mean it has to be in bad faith in order to order sanctions for dismissal, but here, other sanctions are available to the Court. The Court then looked at the deletion by the plaintiff, which occurred after two orders from the Court and discovery were requests specifically asking for the data. It found that plaintiff made affirmative misrepresentations about what was available from Snapchat. The plaintiff’s declarations that he filed early on had said that Snapchat doesn’t maintain data but really glossed over the memory functionality in Snapchat application, and as such, the Court really found that it was trying to misrepresent the information that was available in its Snapchat account. The Court also didn’t appreciate the plaintiff going back time and time again to argue that the information in the Snapchat account was not relevant, particularly because the plaintiff had agreed to provide it via the joint stipulation.

The Court also found that the intentional deletion of the 11 files after those dates was the failure to take reasonable steps to preserve ESI that should have been preserved, which cannot be restored or replaced through additional discovery, and that’s sort of the textbook language of Rule 37(e) on failure to preserve.

What did the Court do as far as issuing sanctions? The Court refused to strike claims in the amended complaint as disproportionate, since they had nothing to do with the loss. There was nothing to indicate that the lost data would have been adverse to the plaintiff’s case, but the Court did allow basically every other sanction. They allowed monetary sanctions for cost recovery of attorneys’ fees from the defendant, and they also allowed the introduction of evidence regarding the spoliation and an adverse jury instruction. The Court said, “The egregiousness of plaintiff’s conduct in deleting the files calls for more than simply requiring that he pay a portion of defendants attorney’s fees and costs.”

Basically what we have at the outset of this or at the conclusion of this decision is you’ve got a plaintiff who failed to acknowledge that he had a Snapchat account to begin with, that’s not actually addressed in the decision, but it’s a big compelling factor when I view the decision. Then you’ve got someone who says, OK, I don’t think it’s relevant, then he says, wait, you can’t get the information anyway even if it was relevant, then he says, OK, I’ll give you the information. Then he doesn’t do it. He then deletes new files from the information. Then he provides a report that shows that he, in fact, deleted those files. The sanctions here are very warranted and they follow after a very detailed discussion by the Court of how the application works, how plaintiffs tried to mislead the Court and there are a number of takeaways from this case that I want to focus on now.

You know this already, but social media is very slippery. You need to understand your client’s social media very early on in the case, whether a client has an account on various platforms. Essentially, you need a checklist of social media platforms and you need to advise your clients not to take any action related to their social media accounts unless and until you preserve them in their entirety for use in discovery. Even then, I would hesitate to delete any information from those accounts unless and until you produce that information and you get agreement from the other side that actions can be taken that would not be deemed spoliation.

These social media platforms change the availability of data regularly. They are private companies with the ability to change terms and conditions as they see fit. This is not a situation where you’re going to know if you wait six months to preserve your client’s information, the availability of that information may be gone.

Also, if you’re talking about preserving social media for corporations, you need to make sure that you’re communicating not only with the legal department, but with the marketing department that’s managing those social media applications. You need to understand what the plan is for those accounts going forward, what the policies are regarding preserving or deleting information from those accounts, and you need to get in and get copies of those accounts as soon as possible. In this particular case, what we see in the footnotes, only in the footnotes of this case, which is kind of crazy to me, is that the plaintiff was the one who actually answered the discovery responses.

Counsel did not answer the Discover responses. Plaintiff did. In this case, the plaintiff is the one who specifically stated that he had Facebook and Instagram accounts, but not a Snapchat account, and then responded that none of the data was relevant and then responded as to how the Snapchat platform actually worked. It’s not clear to me why counsel here would have allowed plaintiff to do that, specifically when they have a Rule 26(g) obligation to sign the request for production as being true and accurate as well as the interrogatories. That’s a real problem here that the counsel left up to the plaintiff, preserving the information, being able to state what was available. That’s not appropriate. That’s not meeting your obligations under the Federal Rules of Civil Procedure or most state equivalents.

As counsel, you need to get in the game here. You need to be reading about Snapchat. You need to get on and create your own account and understand how it works and be able to take screenshots. Because when you get to a motion for sanctions and you’re trying to backpedal, that’s too late. That’s really too late.

We’ll start doing some writing on this on the eDiscovery Assistant blog so we can provide you some information to be able to get up to speed. What’s really important is that counsel here should have undertaken the preservation.

There’s a quote from the Court on this particular issue that I think is important and it goes, “At the very least, counsel appears to have delegated the inquiry regarding how to retrieve Snapchat data to plaintiff, who has no legal training or relevant experience other than as a Snapchat user, and did so despite the fact defendants were contesting his explanations. While the Court ultimately declined to sanction counsel individually, this is certainly not meant to condone the investigation or lack thereof that went into responding to defendant’s discovery request the party’s agreement or the Court’s orders.”

It’s really important for you as counsel to be able to know and understand how all of these social media platforms work. There’s similar issues when you deal with Facebook data and the download that’s available from Facebook and whether that’s in fact reasonable. That’s a whole other issue for another day, but it just really strengthens the point that you’ve got to know and understand how to preserve and collect information from these social media platforms and how to advise your clients. Each time a new one pops up there are going to be different rules that are associated with it. At eDiscovery Assistant, we’ll do our best to provide information for you on staying up to speed on those individual pieces.

That’s our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another edition of our #CaseoftheWeek from the eDiscovery Assistant. If you are an ACEDS member and interested in using your eDiscovery Assistant, there’s a discount available to current ACEDS members and a trial for folks taking the ACEDS exam. If you’re interested in either of those, please drop us a line at ACEDS@eDiscoveryAssistant.com and one of our team will go back to you. If you’re interested in doing a free trial of our case law and resource database, just jump to eDiscoveryAssistant.com and sign up to get started or you can drop us an email at support@eDiscoveryAssistant.com.

Thanks so much. Have a great week. Stay safe and healthy and I’ll see you next week.

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