The last few weeks we have discussed what a Judge might do in several legal scenarios. This final post introduces a new twist on legal communication.

What Might a Judge Do? BYOD and COPE Part 4: A New Twist

September 20, 2016

Author – Ronald J. Hedges

The last few weeks we have discussed what a Judge might do in several legal scenarios. This final post introduces a new twist on legal communication.

The last few weeks we have discussed what a Judge might do in several scenarios. This final post introduces a new fact.

Assume that, however X communicates using the corporate phone, the communication is not retained. Instead, once opened by the recipient, any text message or email “vaporizes” and cannot be restored or recreated. With this assumption in mind, return to the series of facts. Here are the three fact patterns:

 

A CIVIL ACTION

A CRIMINAL INVESTIGATION

AN ARREST AND PROSECUTION

Rather than suggest what a judge might do – the reader should consider the following questions:

  1. Might the ephemeral communication constitute a “record” for purposes of a corporate records retention policy? If so, how might such a communication be classified and when should it “sunset?”
  1. Assume that the communication did not become subject to the common law duty to preserve before it was read and vaporized. What might be the consequence of the loss of the information?
  1. Might the duty to preserve attach at any point? What if the duty arose before a communication had been read? If the duty did arise at that point how might the communication be preserved, if at all?
  1. What might be the consequence of the loss of the communication?

After readers have responded and commented below to these questions there will be a follow-on blog or blogs to suggest some “judicial” answers.

I look forward to the exchange of ideas and thoughts.

Leave a Comment

Contact Us

Interested in learning more about Vaporstream Secure Messaging?

Contact Us

Vaporstream Newsletter

Sign up for our newsletter and communications to stay current on what’s happening at Vaporstream. Your privacy is very important to us and we do not sell your information to third-parties.