Ganzenmuller — Volume 62, Issue 5

Ephemeral messaging technologies like Snapchat, which automatically delete communications, present significant discovery and preservation challenges in litigation. Ganzenmuller examines how courts have increasingly relied on social media evidence in matrimonial, criminal, defamation, and intellectual property cases—eighty-one percent of surveyed matrimonial attorneys discovered social networking evidence. The proliferation of self-destructing messaging apps compounds this challenge, as users increasingly employ apps designed to leave no digital trail. Courts have begun issuing preservation orders requiring Facebook users to change privacy settings, deactivate accounts, and preserve posts, yet ephemeral technologies frustrate traditional e-discovery protocols. The comment addresses the tension between privacy interests and litigation discovery, particularly in light of NSA surveillance revelations, while analyzing how courts should handle the legal duty to preserve evidence when technology actively frustrates preservation. Ganzenmuller argues that existing digital evidence frameworks are inadequate for ephemeral communications and calls for clearer preservation standards.

Topics: Evidence & Procedure · Civil Rights

Keywords: Snapchat · ephemeral communications · e-discovery · preservation orders · spoliation · social media evidence