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This Evidence Will Self-Destruct in 10 Seconds

Self-destructing messages were once the realm of James Bond, Mission Impossible and Inspector Gadget.  However, ephemeral messaging is now extremely common.  Phone apps such as Snapchat, Cyber Dust, Tiger Talk, and Confide all allow users to send messages which disappear shortly after they are read or watched.

This has allowed users an unprecedented level of privacy in the messages they send.  Services such as Cyber Dust and Confide encrypt your messages, prevent them from having a screen shot taken of them, and (of course) destroy messages you send shortly after they are read—keeping no digital record.  Snapchat, while not as secure, still features messages which “vanish” after they are viewed.

The flip side to this privacy is an easy way to send messages that could never be used as evidence in a lawsuit. Cyber Dust was created after Mark Cuban’s experience in his insider trading lawsuit with the Securities and Exchange Commission (SEC).  Mr. Cuban felt that the SEC mischaracterized every message he sent, so he made Cyber Dust to “save a lot of time and money because nothing sent or received on Cyber Dust is discoverable.” Cyber Dust is specifically pitched as the Snapchat for “a business with a lot of lawsuits.” Snapchat itself has been accused of being used a tool to conceal insider trading.

The evidence from ephemeral messages can often be crucial to cases. Just a few weeks back, an Uber driver sued a woman over brain damage he suffered when she hit his car from behind…while she was recording herself going 107 MPH with a Snapchat speed filter.  The video that the woman took, actually recording herself hitting the Uber driver while simultaneously recording her reckless speed, would be incredible evidence in that case.  However, due to the nature Snapchat, that evidence is likely gone.

Spoliation: Getting Rid of the Evidence

There is no universal duty to maintain anything that could ever be used as evidence. Making people keep every last document in case they get sued just doesn’t make sense.  In fact, most companies have policies regulating what records they maintain and when records should be destroyed.  However, there are situations where destroying or withholding evidence can get you in trouble—this is called spoliation of evidence. Have a Nice Day!

A person who negligently or intentionally withholds or destroys relevant information that will be required in a lawsuit is liable for spoliation of evidence.  To determine whether somebody has committed spoliation, courts look to three things: 1) whether a duty to preserve evidence attached before the evidence was destroyed; 2) whether the person accused of spoliation was at least negligent in destroying the evidence; and 3) the other party was prejudiced by the destruction of the evidence.

Whether the duty to preserve evidence takes effect varies substantially between state and federal law and from state to state. The duty can take effect when you first should know you’re likely to be sued for something or when you actually receive notice of a lawsuit against you.  Once you’re under a duty to preserve evidence, you can’t destroy or hide evidence relevant to the lawsuit you know of or are expecting.

When a court finds that somebody has committed spoliation, the court can bring a number of sanctions against them.  The exact breadth of sanctions varies depending on what court you’re in, but a common sanction is applying a “negative evidentiary inference.”  This means that a jury can assume that the evidence the person destroyed would have been bad for that person.

There are exceptions for destruction of evidence as part of a routine, good faith operation of an electronic information system. However, destruction of records after you know about a lawsuit or likely lawsuit —routine or no—is often as bad faith and sanctioned.  Ephemeral data—such as information stored in RAM—has also been treated differently from normally stored electronic data.  The evidence was treated differently because it would require a Herculean effort to preserve.  However, no court has ever dealt with the obligation to preserve where the data you send self-destructs by design.

Courts have dealt with people deleting social media content in the past. They specifically ruled that deleting either Facebook posts or a Facebook account can be spoliation.  Current law leaves it unclear whether use of ephemeral messaging, like Snapchat, will leave the user in danger of spoliation sanctions.  By using Snapchat, you are creating an electronic message with the knowledge it will be destroyed.  If this is done with relevant evidence after a duty to preserve takes effect, this is arguably spoliation.

Are Snapchats Spoliation?

As it is, spoliation law isn’t really prepared to deal with ephemeral messaging on such an enormous scale. The law is just unclear enough to put people and businesses using the services in a sticky situation.  If there’s a chance that sending that Snapchat will leave you in trouble in front of a judge, using the services can become a risk not worth taking.

The idea behind sanctioning people who commit spoliation is that their destruction of evidence implies a guilty conscience. Do users have such a guilty conscience when they send relevant evidence via a means they know will self-destruct?  Cyber Dust’s pitch, promising its users messaging that can’t be used as evidence against them, certainly makes this argument at least believable.

The exception is for routine, good faith, deletion of electronic records. Where an electronic messaging service automatically deletes all messages, that deletion is certainly routine.  However, after you know of a lawsuit, is sending a message with relevant evidence via a means you know will self-destruct good faith?  The exception explicitly doesn’t apply where routine operation is used to hide evidence.

What’s more, courts have sometimes required people to prevent the deletion of otherwise routinely deleted data in order to avoid spoliation sanctions. How could a user of Snapchat or Cyber Dust preserve something that is designed to disappear?

There is a clear tension between the dangers of compromising the privacy offered by ephemeral messaging and the dangers of allowing some users of ephemeral messaging to shelter from justice by actively destroying evidence. Putting every user of ephemeral messaging services at uncertain risk of serious evidentiary sanctions is obviously not an ideal solution.  However, neither is allowing messaging services to shelter users from legal repercussions for illegal actions.

It is likely that a determination of whether sending any given ephemeral message could constitute spoliation would be highly fact specific. However, as it stands, the framework around the treatment of ephemeral messaging is so unclear as to leave parties incapable of entering a courtroom fully prepared.  It is high time that law catches up with technology. Snapchat and ephemeral messaging have been around for over half a decade.

In order to truly know whether use of ephemeral messaging services are spoliation, two things need to be firmly established. First, the exact classification of ephemeral messages.  Whether they will be treated like other types of ephemeral data or like other types of social media.  Second, whether their deletion is routine and in good faith.  Seeing as it is nigh impossible to preserve ephemeral messages, will sending them be subject to an exception to spoliation?  Until this murky area of law is cleared up, users of ephemeral messaging services will be forever left in the lurch.

Three Things to Know When Buying Your First Home

For most people, your home purchase will be your biggest financial investment you will ever face. Buying your first home is one of the most exciting things you can do, but it’s also one of the scariest. Suddenly, a large sum of your monthly income is spent on your mortgage and unexpected maintenance such as electrical repairs, insulation, and re-roofing. The expenses can add up, and what once was a seemingly sound investment can turn into a huge regret.

Here’s a list of things every new homeowner should know as they become homeowners.

Lender Responsibilities: TILA and RESPA Requirements

Finding the right lender is just as important as finding the right home. Some lenders make promises they can’t keep, and borrowers suffer as a result. Lenders who are unable to provide funding can result in the borrower losing their earnest money deposit and the offer on the home. It is important to find a lender that you feel you can work with and who can get you a good mortgage insurance rate. Home Sold

Lenders are bound by Federal laws such as the Truth in Lending Act (“TILA”) and Real Estate Settlement Procedures Act (“RESPA”). These regulations were enacted to protect consumers in their dealings with lenders and creditors. All lenders must provide their customers with disclosures consistent with TILA and RESPA before closing. These requirements include a loan estimate and closing disclosure, which contains the final details about the mortgage loan, such as projected monthly payments, loan terms, and how much you will pay in fees and closing.

What Happens if Something Affects the Property?

Say you found your home, you’re in escrow, and you’re waiting to close, but then the unthinkable happens: a fire breaks out and destroys the property, or a random “Act of God.” What happens then?

If the purchase contract between the parties does not specify who is to bear the risk of damage or loss between execution of the purchase contract and close of escrow, the liability of the parties is governed by the state in which the property resides. Each state is different. For instance, California statute assumes no fault on the part of the buyer for the risk of loss or damage to the premises. In that regard, the seller bears the risk should the property unexpectedly go up in flames.

If all or a material part of the premises are damaged before title or possession is given to the buyer in California, the buyer can cancel the contract and recover any portion of the purchase price paid. If, however, the “Act of God” occurs after the buyer has taken possession or received title, the buyer bears the risk of loss or damages to the premises. Thus, if the premises are damaged, the buyer still must complete the contract and pay the balance of the purchase.

Title Insurance

Another thing to consider when buying your first home is title insurance. When you purchase your house, you may not realize that it is encumbered. In other words, a third party may have legal right to your land which may be superior to yours and restricts your ability to use and enjoy your land. Sometimes, the encumbrance is minor. Other encumbrances may be more substantial.

For example, a government agency may have a utility easement running through your property which prevents you from building that Olympic-size swimming pool you always dreamed of.

Title insurance is meant to protect against these types of unforeseen property disputes by searching the property’s title history before you purchase. The title history should disclose what rights others may have with respect to the property.

Moreover, title insurance insures against any additional “defects” which were not found through the title search and not otherwise expected or excluded in the policy. Depending on the type of title insurance, the insurance may be able to pay off your mortgage in the event that a defect causes you to lose the property. If you buy a property using a home loan, your lender will require that you also obtain title insurance.

Snapchatting Speed Demons: Is Snapchat Liable for their Speed Filter Function?

In 2014, approximately 431,000 people were injured due to distracted driving in the U.S. All these people, hurt because somebody was distracted by something like a text or using social media. One of the most popular social media applications available today is Snapchat. Snapchat allows users to take “self-destructing” pictures or videos of themselves that disappear soon after they are sent.

Snapchat recently added a “speed filter” to its product.  The filter detects what speed you are going and posts it with your snapchat as an overlay. This led, perhaps predictably, to a trend of people snapchatting themselves while driving as fast as possible.

Christal McGee—18-years-old—was driving with three of her friends last September and decided to snapchat herself going over 100mph.  She used her phone to record herself driving her Mercedes at 107 MPH in a 55 MPH zone. She ultimately recorded herself rear ending an Uber driver, Wentworth Maynard, as he pulled out into the road.

The people in Ms. McGee’s car suffered minor injuries. Shortly after the accident, McGee snapchatted a picture of herself strapped to a gurney captioned “Lucky to be alive.” Mr. Maynard was not so lucky, suffering permanent brain damage.

Mr. Maynard and his family are suing Ms. McGee, claiming negligence and loss of consortium. Ms. McGee’s family have issued statements that they believe Mr. Maynard was at fault for pulling out into traffic without giving Ms. McGee time to stop—calling the case “a big setup for somebody who is young and innocent.” However, with the passengers of the car coming forward to corroborate both Ms. McGee’s speed and the fact that she was recording herself, Mr. Maynard’s case against Ms. McGee is very strong.

Mr. Maynard’s injuries are tragic, but his case against Ms. McGee is a fairly standard negligence case. Or it would be if Mr. Maynard and his family weren’t also suing Snapchat for including the speed filter feature in their app.

An Unsafe Product?

The Snapchat speed filter seems like a functionality with very few safe uses. The filter is obviously dangerous while driving, but is there really a safe time to record yourself going as fast as possible? Do we want people distractedly recording themselves while they bike, or skateboard, or jet ski, or even while they run?

Mr. Maynard’s lawyers have described this case as a “products liability” case. Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product. Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product. SnapChat

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

The law in this area varies a bit from state to state, but cases all stem from the same three theories: negligence, strict liability, and breach of warrantee. The first two could come into play in Mr. Maynard’s case against Snapchat.


Negligence is one of the most common civil causes of action.  While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty– That the accused had a duty.  You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty– The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact- But-for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause- A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages- The accuser has suffered some loss as a result of the accused’s negligent act.

In a products liability context, a duty to exercise ordinary care in providing safe, non-defective products to the public applies to everybody in the chain of distribution for a product—from the designer to the business selling the product. In this case, Snapchat is all of the above.

Where a business designs a product that is not safe when used as intended, they have breached their duty of care. Also, where a product does not include sufficient warnings, the duty of care is breached.

There have been numerous reported incidents of people snapchatting as they speed. A Brazilian woman snapchatted a picture of herself going 110 MPH only to snapchat pictures of her car wreck moments later. Draymond Green of the Golden State Warriors made headlines when he snapped himself driving 118 MPH.  There was even a petition, prior to Mr. Maynard’s accident, asking Snapchat to remove the speed filter.

This being said, Snapchat has taken some steps to try and make the speed filter safer. Snapchat has released a statement that they actively discourage “snapping and driving.”  The app itself includes a very visible warning when the speed filter is used that reads “Do NOT snap and drive.” Their terms of service include a section stating “do not use our Services in a way that could distract you from obeying traffic or safety laws.”

Warning Defect

Snapchat’s many warnings not to drive and snap seem like sufficient warning to avoid liability for deficient warning.  However, Snapchat’s speed filter is arguable unsafe when used as intended—recording yourself moving at a certain speed. If you introduce a product that records how fast people are going, people will record themselves going fast—a danger regardless of speed and mode of transportation.

It seems unlikely the speed filter was made to record people walking slowly and carefully. Snapchat, however, can credibly argue that the intended use of the filter does not involve recording yourself while you move at speed—instead it is for recording speed as a passenger or, if such a thing exists, at safe speeds.

Snapchat’s failure to recall their product after they knew its dangers, a step they still have not taken, could also open them up to negligence liability.

Proving negligent design has always been difficult. Courts are reluctant to question the cost-benefit decisions behind “reasonable” design. It generally comes down to expensive expert testimony. What’s more, a negligently dangerous design must usually be more dangerous than an ordinary customer might contemplate. Snapchat will be able to argue that their design was not the cause of Mr. Maynard’s injury—Ms. McGee’s poor judgment in her use of it was.

Snapchat has several defenses available to it, including asserting that Ms. McGee misused their product. No matter which theory Mr. Maynard ultimately uses, keep your speed filters at the ready, Snapchat will have to move quick to beat this lawsuit.

Michigan Court Says You can Drink and Drive In Your Driveway

Ever want to have a little party in your car? Gino Rea was arrested and charged with driving while intoxicated from operating his vehicle…in his driveway. Police were responding to a noise complaint when they found Rea sitting in his vehicle listening to music. That’s right, he was just sitting there, but after coming back for a 3rd time to request Rea to turn down the loud music, the officer saw Rea back out of his garage and down his driveway.

Now, Rea never made it past the end of his driveway and only went about 25 feet before he stopped, but was ultimately charged with operating a vehicle while intoxicated. In fact, he never even made it past the sidewalk crossing through his driveway. A trial judge ultimately dismissed Rea’s case and the Michigan Court of Appeals agreed with the lower court’s decision.

The Court’s decision to dismiss Rea’s case was ultimately hinged on the actual wording of the applicable Michigan statute. The law states a driver cannot operate a vehicle while intoxicated “upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles”.  The court determined a driveway was not considered generally accessible to the public and, therefore, Rea couldn’t have violated the statute. DUI Arrest

I imagine Michigan legislature will ultimately reword the statute to get around the Court’s ruling, but the case does raise some interesting issues that happen quite frequently. What happens when a driver operates a vehicle on a highway or other place open to the general public and is then pulled over in his or her own driveway? What about when someone gets charged with drunk driving just for sitting in their car without any keys in the ignition?

Traffic stops are Terry stops

The famous Terry v. Ohio tells us that traffic stops are technically a subset of a Terry stop, which means an officer must have reasonable suspicion a crime occurred before a motor vehicle can be legitimately stopped. Reasonable suspicion doesn’t mean the officer has to have probable cause to make an arrest, it just means they can stop a driver for the purpose of investigating possible criminal behavior.

So the question really comes down to whether the officer had enough reason to pull over a driver to begin with. Despite beliefs otherwise, an officer doesn’t have to pull you over immediately upon the 1st notice of a traffic offense. There could be a number of reasons why an officer would wait to pull you over until you reached your driveway. Officers are allowed to wait for a safe area to pull you over and officers are allowed to follow you for miles to observe whether you’ve committed any other traffic offenses along the way. It honestly could be a number of reasons. Just because you make it to your driveway doesn’t mean an officer can’t still pull you over.

“I Can’t Get Pulled Over In My Driveway…It’s My Personal Property.”

That’s a common misconception and, frankly, incorrect. Many get upset at the thought of being pulled over in their driveway, as it’s personal property.  There’s less of an expectation of privacy when any citizen has access to your driveway.

When you’re driving on a public roadway and an officer has reasonable suspicion to believe you’ve committed a crime on that public roadway, pulling into your personal property doesn’t absolve you of that crime nor does it mean you’re off the hook.  It does, however, get a little trickier if you live on gated property where the general public has no access at all, but that still wouldn’t absolve any criminal wrongdoing.

So what does that mean for Michigan? If the Michigan court found a driveway isn’t generally accessible to the public, then how can an officer pull anyone over in his or her driveway on private property?  Michigan may say an officer can’t, but I think the major difference lies within the Court’s reasoning.

The Court reasoned that Rea’s driveway wasn’t generally accessed by the public and therefore, he wasn’t posing the same danger to society by driving drunk as he would on a public roadway, but it’s not necessarily that the public couldn’t access the driveway.  It’s a different angle to the argument when you’re talking about driving drunk in areas generally accessible to the public versus the general public having access to your driveway for an officer to pull you over.

“I’ll Just Sleep It Off In My Car.”

That’s probably not always the best idea. Certainly, it’s a better idea than actually deciding to drink and drive, but it doesn’t necessarily keep you off the hook.

“Operating” your vehicle can certainly mean just sitting in the driver’s seat even if the keys aren’t in the ignition. It depends on the state’s law, but it is possible to be convicted for driving under the influence while sleeping off a hangover in your car. Other states, like Nebraska, say you can’t be charged for being drunk and simply being in your car.

Getting In the Driver’s Seat Can Cost You Big

Had the circumstances been different, perhaps had Rea driven out on to the actual road, the decision could have been different. As you can see from the examples above, every state is different so it’s important to know your own state’s laws regarding these issues. An attorney that specializes in DUI and OVWIs will know the specifics of your state’s law.

Jury: GM’s Faulty Ignition Switch was Not Cause of Crash

A New York jury recently reached a verdict in favor of GM Motors in a products liability lawsuit, finding that the defective ignition switch manufactured by the defendant was not to blame for a 2014 accident that injured the plaintiffs.

The plaintiffs alleged that the bad and faulty ignition switch in their 2007 Saturn Sky was the direct result of the accident. GM Motors was the manufacturer of the 2007 Saturn Sky that the plaintiffs were driving at the time of the crash and GM Motors had already recalled the faulty ignition switch on all affected GM vehicles prior to the crash.

After deliberation, the jury came to the conclusion that although the ignition switch in the plaintiff’s vehicle was unreasonably dangerous, the faulty switch was not the cause of the accident. Based on the jury’s decision, the plaintiffs were not able to collect damages to compensate them for the injuries in which they suffered in the 2014 crash.

What Was Required For the Plaintiffs to Recover?

Many would question the jury’s decision, wondering why the plaintiffs could not recover for their injuries even after the jury GM Ignitiondetermined the ignition switch on the plaintiff’s 2007 Saturn Sky involved in the 2014 crash was found to be faulty. In a product liability claim, a plaintiff may receive financial compensation for his or her injuries if the plaintiffs are able to prove that:

In the plaintiffs’ lawsuit against GM, the plaintiffs were successful in proving two of the three above elements. First, the plaintiffs were able to prove that the ignition switch manufactured by GM was defective since the product was already recalled and it was determined that the switch was made unreasonably dangerous. Second, the plaintiffs did suffer an injury from the 2014 accident.

However, the plaintiffs failed to prove that their injuries were a direct result of the faulty ignition switch. In order for the plaintiff to be able to recover damages in the product liability claim brought against GM Motors, the plaintiffs were required to show that the faulty ignition switch directly caused the accident. The jury in this case determined that slippery roadways caused the crash and it had nothing to do with the car’s ignition switch.

What Does the Jury’s Decision Mean for Plaintiffs and For GM?

In this case, since the plaintiff’s were unable to prove that the faulty ignition switch was the cause of their injuries, no damages would be awarded to the plaintiffs. For GM, they would not need to compensate the plaintiff’s any money damages in this case. However, GM needs to fix the problem quickly to avoid any future accidents and injuries that could be caused by the defective ignition switch.