While organizations are able to connect in more ways than ever, the risks associated with ephemeral communications and their disappearing nature are heightened. Ephemeral communications are those that automatically delete after a specified period of time—whether as long as several weeks or as short as seconds. The fleeting nature of these communications—such as messages sent through Signal, WhatsApp, and Google Chat—creates added risk when parties are subject to discovery in litigation. Although these tools are often used for business purposes, the preservation risks associated with disappearing communications, or the failure to preserve them, can result in sanctionable conduct during contested litigation.

For example, the District Court of Arizona granted sanctions against a defendant, including an adverse inference ruling, where certain communications were no longer available in response to a Federal Trade Commission (“FTC”) subpoena. The sanctionable conduct arose from the defendant’s use of encrypted, automatically deleting communications platforms, including Signal and ProtonMail, to conduct business when he knew about the pending subpoena. Fed. Trade Comm’n v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021).

In response to growing concerns and the need for guidance related to ephemeral communications, both the FTC and the Department of Justice (“DOJ”) updated their language related to electronically stored information (“ESI”) to include such communications and issued joint guidance on ephemeral messaging, reinforcing parties’ preservation obligations with respect to new collaboration technology. Under this new guidance, both agencies “expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications . . . . Failure to produce such documents may result in obstruction of justice charges.” Id. The FTC and the DOJ have made clear that not only email messages, but also Teams, Slack, Signal, and other communication applications, are subject to discovery during government investigations, and businesses are under an affirmative obligation to preserve these communications in connection with pending litigation.

Parties in private litigation are held to the same expectation. Litigants frequently request ephemeral messages in their document requests, and courts are granting requests to produce these communications. Indeed, the Federal Rules of Civil Procedure permit sanctions, ranging from adverse inferences to dismissal or default judgment, if a party should have preserved ESI in the anticipation or conduct of litigation and the ESI is lost because the party failed to take reasonable steps to preserve it. Fed. R. Civ. P. 37(e). When these communications are intentionally set to delete, specifically to delete responsive and relevant information, courts are enforcing the Federal Rules and have issued severe sanctions. See, e.g., Pable v. Chi. Transit Auth., 145 F.4th 712, 727 (7th Cir. 2025) (affirming the dismissal of the complaint and award of tens of thousands of dollars in sanctions where a plaintiff intentionally deleted Signal messages); In re Google Play Store Antitrust Litig., 664 F. Supp. 3d 981 (N.D. Cal. 2023) (imposing attorneys’ fees sanctions on Google because “Google intended to subvert the discovery process . . . with the intent to deprive another party of the information’s use in the litigation” by allowing its Google Chats to be deleted after 24 hours).

Both FTC and DOJ directives, as well as these recent court decisions, highlight the ever-changing landscape of document preservation in a technologically advancing world—and the associated risks. Companies and organizations have an affirmative duty to preserve these disappearing communications through litigation holds and the maintenance of policies regarding auto-deletion features. A party is obligated to preserve ESI that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. The Sedona Principles, Third Edition, 19 Sedona Conf. J. 1, Principle 5, 93–94 (2018); see also Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (stating that a duty to preserve ESI arises when litigation is reasonably anticipated).

Accordingly, understanding your organization’s use of ephemeral messaging platforms and identifying ways to mitigate risks in advance of litigation are key. Best practices for managing these communications to avoid discovery sanctions include:

1. Update litigation hold templates to ensure that these notices expressly reference ephemeral messaging platforms and instruct custodians to immediately disable any auto-delete or disappearing message features.
2. Audit existing auto-delete settings and review all communication platforms used within the organization to identify default auto-deletion settings. Where possible, disable these features enterprise-wide or establish retention periods that align with the organization’s document retention policies.
3. Implement clear policies on the business use of personal devices and applications, as many ephemeral messaging apps are used on personal devices outside of corporate IT controls.
4. Train employees on the ever-changing landscape of communications and their preservation obligations.
5. Coordinate with IT and records management to ensure that the organization’s data retention infrastructure can capture and preserve communications from newer collaboration tools, not just traditional email.

While there will always be new risks in connection with the use of new technology, implementing these best practices can help mitigate these challenges and ensure that your organization is not facing sanctions or spoliation claims.