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WhatsApp and eDiscovery: 3 Legal Cases You Should Know About

Convenient, cheap to use, and a part of everyday life for many of us, it’s no wonder that WhatsApp has found its way into the communication culture of many modern enterprises. While WhatsApp undoubtedly provides a handy and intuitive messaging channel, its use undeniably constitutes part of business records. This means your enterprise is responsible for appropriate preservation – and depending on how heavily regulated and litigated your industry is, lack of accurate recordkeeping can have serious legal repercussions. 

WhatsApp and eDiscovery: 3 Legal Cases You Should Know About

With one of the largest user bases of all social messaging apps (2 billion and counting), the pressure is mounting for organizations to take control of their responsibilities surrounding WhatsApp communications. 

This article will outline three examples of businesses who relied on WhatsApp messages to help secure victory in court, and give some practical guidance to help ensure your own organization would have access to the same kind of admissible evidence, if required in the future.

WhatsApp in the Workplace

WhatsApp, a messaging app that allows voice and video calls, as well as multimedia messages with attached photos or documents to be sent over an internet connection, has enjoyed huge popularity since its inception in 2009. 

While the platform isn’t positioned as a solution for enterprise, thanks to its user-friendly and ubiquitous nature, it’s unsurprisingly found its way into many modern workplaces. Employees will commonly use the app for both internal and external communications, and the line between professional and personal communication inevitably becomes blurred.

HR departments understandably council caution when it comes to the use of WhatsApp in the workplace, but it's your internal legal and compliance teams that should increasingly be paying attention here. Used during business hours and accessed via internal IT systems, WhatsApp messages are very much a company’s responsibility and require careful, compliant archiving.

Research has shown that more than half of workers use messaging apps for workplace communication — and 38% use messaging apps for specifically work-related matters. With stats like these, it’s easy to see why more and more businesses are protecting themselves with sophisticated archiving solutions.

WhatsApp and eDiscovery

When electronically stored information (ESI) is required to provide evidence relating to a legal case, the process of eDiscovery is leveraged. WhatsApp messages could very well need to be produced as the result of an eDiscovery process, and many companies run into issues here if some sort of recordkeeping solution has not been put in place.

While WhatsApp’s end-to-end encryption might keep messages private, it's important to realize that a court can still deem them discoverable. Just like with regular text messages, WhatsApp messages can be deemed relevant to a legal matter, in which case a party is obligated to present them.   

Moreover, these messages need to be of defensible quality. In the U.S., many States rule that the evidence value of electronic communications, like WhatsApp, relies on their quality. Massachusetts Rules of Evidence, for example, allow for electronic messages as evidence; still, the law mandates that the prosecution authenticate them before they are permitted.

The methods accepted for authentication of electronic messages include:

  • Witness testimony by those who directly saw the messages
  • Distinct characteristics of the message contents
  • Authenticity based on circumstantial evidence

Additionally, the WhatsApp messages must give documentation for:

  • The time and date of the messages
  • The actual contact details for those involved in the communication, such as their phone number for an SMS. For WhatsApp, this can be either a phone number or email address

WhatsApp Evidence in Legal Cases

The eDiscovery issues surrounding the inclusion of WhatsApp messages as legal evidence are complicated. 

However, as the following examples will show, being able to provide admissible WhatsApp evidence is increasingly important for businesses.

1. Forse & ors v Secarma Ltd

In this case, the defendants were prior IT consultants for the claimants and charged with attempting to headhunt  around thirty company employees. According to Secarma, the defendants intended to establish a rival operation with the help of these poached employees . At the time of filing, there had been 28 resignations.

Much of the evidence was in the form of WhatsApp messages, specifically a group chat named “The Order of The Phoenix” (rather tellingly, a thinly veiled reference to a secret society.)  After reviewing them, the court determined there was enough to proceed in the legal case and that damages against the defendants would be substantial.

England and Wales Court of Appeal (Civil Division) Decisions

  Source: England and Wales Court of Appeal (Civil Division) Decisions

2. Wells and Solari v PNC Global Logistics

In 2019, two company executives used WhatsApp to share pornographic content, going on to draw comparisons with a female colleague. When this came to light, the two men were terminated by their employer PNC Global Logistics. 

The two men sued the firm, however, claiming wrongful termination. They argued that the actual cause for their dismissal was financial incentive, as their shares in the company were each valued at £150,000.

After official devices showing the messages in a private group chat were handed into the court as evidence, the judge found the terminations were indeed justified.

3. Darren Case v Tai Tarian

In April 2018, the suspension of Darren Case by his employers at Tai Tarian came after discovering a WhatsApp group he created was being used to  bully and harass a female colleague. The WhatsApp messages he shared contained derogatory comments. These included comments about the woman’s weight and hygiene, as well as statements labeling her as autistic.

The WhatsApp group had originally been set up as a way of keeping in touch with a colleague who was off sick, but the defendant purportedly told other members not to add the colleague in question. After ensuring she had been excluded, he proceeded to use the group message to criticize her work ethic and encourage other members of the group to attempt to distract her, by starting conversations on topics given to them via WhatsApp.

Seeking a verdict of unfair dismissal, the defendant took the company to an employment tribunal. He attempted to attribute his behavior to the medication he was taking for his mental health. However, the judge didn’t accept that his condition was severe enough to cause his actions, and the decision was upheld.

Should Your Business be Archiving WhatsApp Messages?

The short answer? Absolutely. It’s unrealistic to assume that the platform is not being used for business communication within your enterprise. As a result, you must ensure that compliance with regulation is being met, and that should the need for eDiscovery arise, your archives are easily searchable and admissible in court.

For peace of mind here,  firms are increasingly  turning to text message archiving to protect messages that could be needed at some point in the future for a litigation case.

eDiscovery is an increasingly essential element of the enterprise litigation process. With WhatsApp’s ever-growing presence within business, correct archiving of this channel of communication could prove  critical.

Compliant And Complete: WhatsApp Archiving with Pagefreezer

As we’ve seen from the lawsuits outlined in this article, WhatsApp can provide evidence that makes or breaks business-related lawsuits. Pagefreezer’s smart solution ensures that should you need to retrieve eDiscovery evidence from WhatsApp, you’ll have everything you need at your fingertips.

To see Pagefreezer's WhatsApp and Text Message Archiving solutions in action, simply request a demo below. 

Book a Demo

George van Rooyen
George van Rooyen
George van Rooyen is a Content Marketing Specialist at Pagefreezer.

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