In an age where privacy is a key component in innovation, more technology companies are advising their employees to keep their electronic communication private by using various encryption apps. These programs, such as Wickr, Telegram, Signal and Confide allow users to protect messages with passcodes available only to the intended recipient. They also are known for automatic deletion options that eliminate all copies of specified conversations within a few seconds.

While disappearing messaging apps are not inherently illegal, they may present problems within the context of a potential lawsuit. Federal rules requires businesses to preserve records that might reasonably be seen as relevant in litigation. Businesses also have an obligation to follow certain data retention rules set by regulators. 

So, for example, if confidential electronic communications become the subject of a trade secret dispute, their destruction could to thorny questions about liability. It raises the question as to when the obligation arises to preserve information as well as whether an intent to specifically hide such information in anticipation of litigation may be inferred.

These are principal legal questions in Alphabet Inc’s lawsuit against Uber Technologies. Alphabet accuses Uber of stealing secrets surrounding its autonomous vehicles. Specifically, it is unknown when Uber began using Wickr to shield communications, but the company claims that it used a business version of the app that allowed the preservation of messages for up to one year, instead of six days with the personal version.

Nevertheless, the story personifies the need for experienced legal counsel to advise businesses on what records should be preserved in anticipation. If you have questions about records preservation or the potential sanctions for failing to do so, an experienced business litigation attorney can advise you.