Wickr GC Jennifer DeTrani on Ephemeral Messaging, Discovery, and the Waymo-Uber Suit

December 20, 2017 Casey C. Sullivan

Ephemeral messaging technologies, which retain messages for a limited period of time before automatically destroying them, have been around for years. But these technologies are just starting to capture the attention of the legal community, as lawyers grapple with ephemeral messaging’s implications on document retention requirements in regulated industries and preservation obligations when litigation is pending.

Today, there is an ever-growing number of increasingly popular ephemeral messaging services available. Snapchat, perhaps the first widely popular ephemeral messaging app, boasts 37 million active users, for example. For the security minded, services like Wickr, Signal, and Confide combine both advanced encryption and self-destructing messaging. Such apps have been adopted by journalists, activists, “the Davos class,” and others concerned with the exposure of valuable secrets.

Now, the trade secrets litigation between Uber and Waymo could force courts to start confronting the legal implications of ephemeral messaging, after an eleventh-hour revelation of previously undisclosed documents derailed the suit less just days before trial. Those documents, from an ex-Uber employee, claim that Uber engaged in a campaign of illicit information gathering against competitors and employed a three-part strategy to avoid a paper trail that could be discovered during litigation. That alleged scheme involved a combination non-attributable hardware, over designation of attorney-client communications, and the ephemeral messaging app Wickr.

Logikcull recently sat down with Jennifer DeTrani, general counsel and associate-founder at Wickr, to discuss ephemeral messaging, the likely precedent-setting implications of the Uber suit, and why she is pleased that courts are now addressing this technology. A transcript of that conversation, lightly edited for concision and clarity, follows.

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