Last week I spoke to Adam Landa, a Greenberg Traurig shareholder who co-chairs the law firm's e-retention and e-discovery practice group about the Vanish encryption technology that, in essence, allows electronic documents to "self destruct" after a period of time.
First, he spoke about how such technology could impact a company's data retention obligations and perhaps open the company to liabilities if it cannot retain certain documents. Then Landa spoke specifically to the implications Vanish might have on e-discovery requirements for companies that are involved in litigation.
"It almost seemed like the Vanish team got so excited at the idea that they could get around all the technical barriers, that they didn't understand all the legal implications," he told me.
For instance, those implementing Vanish might subject themselves to adverse inferences or presumptions that they destroyed evidence in the event of litigation. Landa explained:
There are cases out there where judges have found spoliation [destruction of evidence] before the duty to preserve even arises, and that you have anticipated litigation simply by your conduct. Given those cases, it seems to me judges could easily find that the use of Vanish technology, for that type of conduct, is spoliation, and intentional at that.... If a company intentionally destroys evidence, the judge can reverse the burden of proof, or conceivably even give default judgment to the opposing party. ("Now that I've reversed the burden of proof there's no way for you to win.")
Short of doing that, the judge can also give the jury an adverse presumption, where they are instructed that they must presume the evidence that was destroyed was detrimental to the destroying party's case.
Landa stressed that the courts have yet to rule on this specific issue, largely because the technology cannot be implemented yet. Nonetheless, the mere possibility raises serious legal questions.