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Title: Hurdles in Disclosure Exercises in Litigation Proceedings in the UK: Unraveling

the Challenges of Instant Messaging

Introduction:

In today's digital age, the rise of instant messaging has introduced new complexities and

hurdles in litigation proceedings, particularly concerning the disclosure exercise. This article

explores the practical challenges and implications associated with instant messaging in the

context of disclosure exercises in the UK legal system.

Emerging Trends in Business Communication:

Instant messaging has revolutionized the way businesses communicate. Its inherent benefits,

such as convenience, enhanced security through encryption, and the allure of privacy with

expiring and disappearing messages, have made IM platforms an integral part of business

operations. However, the use of instant messaging also presents unique challenges when it

comes to litigation and disclosure. This is often occasioned by the new features such as use of

disappearing messages in business dealings and in work places.

Expectations of Privacy:

One of the primary hurdles in disclosure exercises involving instant messaging is the

reasonable expectation of privacy. Individuals and businesses often use personal devices for

instant messaging, blurring the lines between personal and professional communications.

This expectation of privacy poses a challenge for parties seeking to obtain relevant instant

messaging data during litigation proceedings.

Third Party Privacy Rights:

Another critical consideration is the privacy rights of third parties who may be involved in

the instant messaging conversations. While the focus is often on the parties directly involved
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in the litigation, the presence of other individuals in these conversations may require careful

attention to privacy concerns and consent requirements.

Record Retention Obligations and Implications of Losing IM Records:

Unlike traditional communication channels, instant messaging platforms may not have robust

record retention mechanisms. The ephemeral nature of some IM platforms, with messages

expiring or disappearing after a certain period, poses significant challenges in preserving and

producing relevant records during litigation. The potential loss or destruction of devices used

for instant messaging further compounds this problem.

Pitfalls of Relying on Instant Messaging and Disclosure Hurdles:

Several challenges arise when attempting to rely on instant messaging as evidence during

litigation. The lack of context when messages are taken in isolation, such as interpreting the

meaning of likes or emojis, can lead to misinterpretation. Authenticity and metadata also

become crucial considerations, especially when native forms of documents are required for

disclosure. Moreover, the sheer volume of data to review and the need for redactions add

complexity and cost to the disclosure exercise. Additionally, controlling and accessing

personal devices used for instant messaging can present logistical and legal hurdles.

Risk Mitigation Strategies:

To mitigate the risks associated with instant messaging in litigation proceedings,

organizations can adopt various strategies. Limiting the apps that can be downloaded onto

company phones and laptops helps to ensure that only approved and monitored platforms are

used for business communication. Monitoring conversations and restricting the type of files

that can be sent via instant messaging can help prevent the exchange of sensitive or

inappropriate information. Providing a secure and GDPR-compliant method of instant

communication can strike a balance between convenience and data protection. Finally,
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implementing IT retention policies that preserve all instant messaging conversations can help

mitigate the risks associated with lost or deleted data.

Mitigating the Challenges: A Multi-Faceted Approach

Effectively addressing the hurdles in disclosure exercises involving instant messaging

requires a multi-faceted approach that combines technological solutions, procedural

guidelines, and a deep understanding of the legal landscape. Here are some additional

strategies to consider:

1. Cooperation and Early Case Assessment: Encouraging early case assessment and

cooperative discussions between parties can help identify potential sources of relevant

instant messaging data and streamline the disclosure process. Proactively discussing

the use of instant messaging platforms, the availability of records, and potential

privacy concerns can lead to more efficient and effective disclosure exercises.

2. Data Preservation and Collection: To ensure the preservation and collection of instant

messaging data, it is crucial to implement robust data management practices. This

includes establishing clear policies on the retention of instant messaging records and

implementing appropriate technological solutions to capture and store relevant data in

a secure manner. Working closely with IT departments or external experts can help

organizations navigate the technical aspects of data preservation.

3. Data Review and Redaction: Given the potentially large volume of instant messaging

data involved in disclosure exercises, employing advanced data review technologies

can significantly expedite the process. Automated tools that assist in data

categorization, keyword searching, and redaction can help reduce the time and

resources required for manual review. However, it is important to strike a balance

between efficiency and accuracy to ensure the integrity of the disclosure exercise.
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4. Expert Guidance: Seeking expert guidance from legal professionals experienced in

handling digital evidence and disclosure exercises can be invaluable. These experts

can provide insights into the evolving legal landscape, best practices for instant

messaging data management, and assistance in navigating complex technical

challenges. Their expertise can help ensure compliance with legal obligations and

improve the overall effectiveness of the disclosure process.

5. Legal Considerations: Instant messaging data can intersect with various legal

considerations, such as data protection laws, employee privacy rights, and legal

privilege. Working closely with legal counsel can help navigate these complexities

and ensure compliance with relevant regulations. It is essential to consider

jurisdictional differences, as laws governing disclosure exercises and data privacy can

vary across jurisdictions.

The inferences courts may take if people actively choose through channels that disappear

after a period of time; Courts have recently been faced with hard question on how to reach a

decision based on disappearing messages especially when they are associated in a business

transaction that require the intervention of the court. The law imposes no obligation on

business or organizations to keep records of digital communication. The use of disappearing

messaging is a disadvantage to court proceeding especially at the discovery stage. In a recent

case between Waymo v Uber where Uber instructed its employees to use wickr an ephemeral

app that is used in workplace. The applicant attorneys argued that the app was used to cover

tracks and evidence. The trial court made a decision stating that the applicant used the use of

this app as a possible explanation for failing to turn up more evidence to support their

application. The uses of the disappearing messaging app can be equated to a non recorded

phone call. This is because a call that is not recorded is not assumed to have been deleted
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disappearing messages are replacing such calls. The courts may therefore require companies

to develop policy on information retention in writing.

Impilcations of losing business communications through disappearing channels of

communication is possible especially if there are no policy set in place that ensure and

mandates the parties to hold the information. The use of disappearing messages software that

ensure that a message is deleted automatically after it has been read has grown its popularity

in the recent past. Established business should develop mechanisms and policies that ensure

information is retained and accessible in case of legal implications. By implementing robust

data management practices, embracing technological solutions for data preservation and

review, and fostering a culture of cooperation, the challenges posed by instant messaging in

disclosure exercises can be effectively mitigated. Moreover, keeping abreast of legal

developments and seeking expert guidance will help ensure compliance with evolving legal

obligations and enhance the efficiency and accuracy of the disclosure process.