Corporate Compliance Insights
5 minute read | March.26.2020
Howard Baker's quote — "it is almost always the cover-up rather than the event that causes trouble" — has taken on significance in recent cases involving e-discovery and electronic messaging. Courts increasingly view the preservation of communications as a rote, ordinary-course business practice and during litigation or investigations, where relevant electronic communications have not been preserved, the focus of the inquiry can turn from the actual event in question to a perceived cover-up.
The intentional destruction of evidence clearly has serious, potentially criminal implications, but the courts' presumption about simplicity of preservation may not be as obvious to companies charged with that responsibility, given the proliferation of ephemeral messaging applications. Ephemeral messages shared via specific platforms and applications typically "self-destruct" after they are read, posing unique preservation challenges. Courts have so far taken a skeptical view of ephemeral messaging, particularly in situations where that method may have been chosen specifically to avoid documenting communications.