'Vanish' and Retention Requirements: A Legal Perspective

Lora Bentley

Remember when I wrote about Vanish and asked all those questions about what the use of such technology might imply? I had the chance to speak with Greenberg Traurig shareholder Adam Landa, who co-chairs the law firm's national e-retention and litigation preparedness practice group. He and colleague Phil Cohen wrote an e-discovery and e-retention alert on Vanish earlier this month.


"Technologically," he told me, "Vanish is a very good idea... Its time has definitely come." It's perfect technology for allowing Facebook posts and other personal documents to expire after a given period of time, Landa said. Nevertheless, he does have serious concerns about taking that kind of technology into a business environment.


Several industries are regulated and require people to "keep thngs," Landa said. He pointed to the example of the broker-dealer, who is required to keep all communication for three years, and for two of those years it must be "readily accessible." So if a customer sends an e-mail set to "Vanish" in 30 days asking the broker-dealer to effect a certain transaction, is the broker-dealer required to reject that e-mail? After all, Landa said, he or she won't be able to keep it for the requisite three years. If rejection is the appropriate answer, then what should he or she do when the customer comes back and says, "You didn't make the buy I asked you to make"?


And when you move into the business communication arena, you also have to think about what the person receiving the communication or other document will do with it, Landa said. He gave this example:

Typically in an e-mail you can copy and paste or cut and paste content. So if you cut content out of a Vanish e-mail and you paste it into a text file or some other media, it's not going to vanish. You're still going to have a record of what that e-mail was. Or if you print it, or if you print it to PDF, those things aren't going to vanish the way the e-mail would. It concerns me that people would send things that they think are going to be gone, but they're not.
Even at a minimum, if someone gave you this technological explanation of how you could create a Vanish client that would prevent someone from creating a PDF or cutting and pasting, you could still pull out your digital camera, point it at the screen and take a picture, and there it is.


Landa also talked about Vanish in the context of e-discovery requirements, but I'll save that for a later post.

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