The Sedona Conference Commentary on Ephemeral Messaging

The Sedona Conference Commentary on Ephemeral Messaging
Written by Doug Austin, Editor of eDiscovery Today

In last week’s post, I discussed the challenges associated with ephemeral messaging, including a case where the use of an ephemeral messaging app at the wrong time contributed to the issuance of terminating sanctions against the defendant in a case and identified a couple of recommendations to consider with regard to ephemeral messaging.  In the conclusion of my two-part series on ephemeral messaging, I’ll discuss a recently released Commentary on the topic from The Sedona Conference®.

A couple of weeks ago, The Sedona Conference and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6) announced that The Sedona Conference Commentary on Ephemeral Messaging (“Commentary”) has been published for public comment.

The 32-page PDF Commentary defines the nature and scope of ephemeral messaging and provides a detailed sketch of the tension and competing demands facing organizations – particularly organizations seeking to use ephemeral messaging to comply with cross-border data protection directives without violating other legal requirements – that wish to use these tools. The Commentary also includes a discussion of five guidelines that provide direction to organizations on how to navigate the landscape of uncertainty surrounding the use of ephemeral messaging. The guidelines also offer recommendations to regulators and judges for evaluating good faith uses of corporate ephemeral messaging.  Those Guidelines are:

  • Guideline One: Regulators and Courts Should Recognize that Ephemeral Messaging May Advance Key Business Objectives
  • Guideline Two: Organizations Should Take Affirmative Steps to Manage Ephemeral Messaging Risks
  • Guideline Three: Organizations Should Make Informed Choices and Develop Comprehensive Use Policies for Ephemeral Messaging Applications
  • Guideline Four: Regulators, Courts, and Organizations Should Consider Practical Approaches, Including Comity and Interest Balancing, to Resolve Cross-Jurisdictional Conflicts over Ephemeral Messaging
  • Guideline Five: Reasonableness and Proportionality Should Govern Discovery Obligations Relating to Ephemeral Messaging Data in U.S. Litigation

You can download a copy of the Commentary for FREE here (registration required). It is open for public comment through March 28th. Questions and comments may be sent to [email protected].  A webinar on the Commentary will also be held in early March and will be announced on The Sedona Conference website to give people a chance to learn more about it and ask questions.

This is the first comprehensive guide like this I’ve seen on ephemeral messaging and it’s well worth the read (at just 32 pages, it’s a lot shorter than a case law ruling I just covered!).  The Commentary provides useful information regardless of your role within the litigation lifecycle (in-house, outside counsel, judges, providers, etc.) to understand ephemeral messaging and how to address it as an organization pre-litigation, as well as what to do when you’re under a duty to preserve and contains references to numerous other resources, including case law, articles and other guides).  Kudos to The Sedona Conference and Working Group 6 for publishing such a useful and timely guide!

Just a reminder that IPRO and ACEDS will be conducting the webinar titled Unpacking the IPRO and ACEDS 2021 Law Firm Snapshot Survey on Tuesday, February 23rd at 1pm ET to review the results.  Mike Quartararo, President of ACEDS, Aaron Swenson, Director of Product at IPRO, and Jim Gill, LegalTech Industry Writer, will discuss the survey results and what they reveal about the state of the industry in 2021.  Even if you didn’t participate in the survey (if not, why not?, unless you don’t work for a law firm, of course), you’ll want to check out the survey results.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between IPRO and eDiscovery Today, he’ll be here in the IPRO Newsroom next week with more educational content!