In the age of staggering data proliferation, where 329 million terabytes are generated daily, the landscape of information has changed. Short message applications and mobile devices contribute significantly and, according to Relativity Internal Data, we’ve seen over a 430% year-over-year increase  in short message data stored on RelativityOne. Short message data is also on pace to surpass the daily number of emails exchanged by 2024. While this exponential growth of data represents a new challenge for modern in-house legal teams, it feeds directly into one of the oldest challenges: spoliation. For most people, spoliation is often associated with notorious acts, like the “Rose Mary Stretch” or mass shredding à la “The Wolf of Wall Street,” but the reality of modern spoliation is manifested in inadequate defensible disposition strategies.

Contrary to expectations, the 2015 update to Rule 37(e) hasn't reduced spoliation sanctions; instead, according to data pulled from the Annual Report of the Director for Judicial Business of the United States Courts, federal cases witnessing such sanctions have surged by 560%. Recent instances increasingly involve the failure to preserve short message and personal device communications. Take these examples:

• Doe V. Purdue University: The court penalized the plaintiff for failing to retain crucial Snapchat images and videos, highlighting that ephemeral messages aren't exempt from retention policies.
• Hunters Capital, LLC v. City of Seattle: Sanctions hit the City of Seattle, including the mayor amongst other officials, for deleting relevant texts using an automated 30-day deletion feature on city-issued iPhones. The key lesson here: use automated deletion features with extreme care.
• Fast v. GoDaddy: The plaintiff leveraged an “unsend” feature to prevent the disclosure of Facebook Messenger communications, revealing that seemingly innocuous “unsend” features still leave a trace.
• Red Wolf Energy Trading, LLC v. BIA Capital Mgmt.: Deficient mechanisms for searching through Slack communications led to inaccurate responses to discovery requests, emphasizing the need for suitable resources and tools in collecting and producing short message data.
• United States et al v. Google LLC: Internal chat communications failed to be preserved due to an auto-deletion policy that the Court ruled fell “strikingly short” of the duty to preserve, underscoring the importance of reasonable deletion time frames and need for policy “pauses.” 

Beyond the reputational cost for sanctions, the financial cost is on the rise; Wall Street paid $2 billion in fines in September 2022 due to inadequate procedures around WhatsApp and personal email preservation. Each of these examples are similar in their failure to preserve short message responsive data and should be seen as a warning that if your current policies don’t take a hard look at new sources of data, now is an opportune time to update them.

So how do you approach the spoliation menace in today’s data-rich environment?

1. Create Your Team: Just like your favorite sports team, the best offense for spoliation is a good defense. Your defensible disposition team should span your organization, including players from HR, records management, and IT.
2. Build a Data Map: Keep all your sources of data organized with a data “map” that covers where data is stored, who or what team is responsible for managing each data source, and the records management process for each (preserving, archiving, deleting, etc.).
3. Document Your Plan: Outline your records management procedures and responsibilities from start to finish and define the protocol your organization will take once a legal hold is issued.
4. Train Your Employees: A defensible disposition strategy only works if every employee understands and complies with it.
5. Stay Up to Date: Periodically assess your plan and schedule a formal review cadence. Each time ask the team, are we including the latest types of data? Are there technological advancements that could be leveraged to reduce risk or administrative burden? Have any changes to case law occurred since we last reviewed?

Implementing these five steps can empower your team in constructing a robust defensible disposition plan. However, the most effective method to enforce this plan is through technology. With the right tools, your team can effortlessly issue legal holds, pinpoint custodians, locate and safeguard essential data, and preserve with purpose, all while mitigating the risks of manual error and reducing administrative burdens. Moreover, beyond freeing your team for more valuable tasks, leveraging the right technology enhances your defensibility and security by reducing data loss, creating comprehensive audit logs, and identifying if key custodians or data sources are missing.

Ready to tackle modern spoliation risk? Relativity can help you incorporate repeatable, scalable, and defensible data processes that set your team up for success. Download our latest infographic, The Spoliation Menace: How to Prepare Your Organization, to help your team stay up to date.