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WhatsApp-missible: are social media messages discoverable and admissible in international arbitration?

With thanks to Olivia Turner, trainee solicitor in the International Arbitration and Construction Disputes Group at Bryan Cave Leighton Paisner LLP for co-authoring this blog.

The way we communicate is changing. Just as email replaced the letter, social media and instant message platforms are increasingly being used for work-related, as well as social, communications. In some regions of the world and industries, applications such as WhatsApp and WeChat have become the standard method of communication for all types of dealings and transactions. There is therefore an increasing amount of information stored on these platforms.

From a litigation and risk management perspective, this means that instant message platforms can be an important source of evidence, which a party might want to obtain or keep confidential. Yet, the “social” and informal nature of instant messages often means that individuals are less circumspect in what they write than they would be if communicating by email. Arguably this casual way of communicating is encouraged by the very nature of instant message platforms and the expectation it might create with its users. The context in which instant messages are sent, including the nature of the relationship between the sender and the recipient(s), and the mere fact that these messages are generally sent from a mobile device, possibly from a personal phone, might give an impression to the sender that such messages will be immune from future discovery. In an era where the boundaries between the private and professional spheres have blurred, the question arises as to whether the expectation of privacy is legitimate and whether relevant messages must be disclosed regardless of any privacy consideration.

This question was brought to the fore recently in different contexts. In a recent Financial Conduct Authority (FCA) prosecution, a former VTB-banker appeared at Westminster magistrates’ court charged with destroying documents that he knew or suspected would be relevant to an FCA investigation. The banker had allegedly deleted the WhatsApp application from his phone after he was required to provide it as part of the investigation. In the political context, requests for social media messages were made in a humble address motion in September 2019 where certain members of the British government were requested to disclose all relevant communications about the Parliament prorogation, including personal emails and messages exchanged on WhatsApp and Facebook Messenger. The government objected on the basis that that type of motion “has not been, nor should it be, used to purport to place obligations on civil servants, or to seek to understand the private views of those individuals”.

In the context of arbitration, instant messages can be an important source of evidence in international commercial and investment disputes. The content of social media and instant messaging may be relevant to the substance of a case. It may also be relevant to the conduct of the arbitration, for example as part of a challenge to an arbitrator or an award when ex parte communications with an arbitrator have been exchanged through this particular means of communication.

This blog post discusses whether instant messages are discoverable in international arbitration through a document request.

Requests for production of social media and instant messages

International arbitration proceedings generally include the possibility for parties to make requests of documents. Whether the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) apply or not, arbitral tribunals typically grant such requests as long as they meet certain requirements, including in relation to proportionality and relevance. Given the prominence of the IBA Rules and their reflection of international arbitration practices, this blog post addresses requests for production of social media and instant messages from the perspective of Articles 3 and 9 of the IBA Rules.

Documents reasonably believed to exist

Article 3.3(a) of the IBA Rules provides that a request to produce contain a description of each requested document or each narrow category of documents reasonably believed to exist. Article 1 of the IBA Rules defines “document” to include:

“… a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means.”

The definition is therefore wide enough to encompass social media and instant messages.

Article 3.3(a) further provides that:

“… in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economic manner.”

When requesting instant messages, parties would normally identify the relevant individuals concerned as well as the platform(s). For example, the request to produce may read as follows:

“All instant and social media messages including but not limited to text, Facebook Messenger and WhatsApp messages between X and Y between DATE and DATE discussing or relating to the ISSUE”.

Whether the requesting party knows for a fact that the custodians involved used a certain platform is generally not conclusive as long as the messages in question are reasonably believed to exist. There may be specific reasons why certain issues were discussed over instant messaging rather than email. Any information or evidence about such reasons or habit patterns is likely to contribute to the request being granted.

Relevance and materiality

Article 3.3(b) provides that a request to produce must contain “a statement as to how the Documents requested are relevant to the case and material to its outcome”. Whether certain social media or instant messages may be relevant to certain issues at stake in an arbitration, and material to its outcome, will depend on the circumstances of each case. This includes the identity of the people who exchanged these messages and the issues in the case.

Possession, custody or control

Article 3.3(c)(i) requires the requesting party to confirm that the:

“… Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents”.

This provision may apply to a request to produce messages known to have been exchanged between representatives of two different parties (for example, in the context of contract negotiations) where messages exchanged with the receiving party may no longer be available to the requesting party. The reason why messages sought may no longer be available may relate to the departure of an employee or failure to secure data stored on the relevant employee’s mobile device. Even in large companies, most of which have detailed protocols and policies on IT and communications, loss of data relevant to a future or ongoing dispute remains quite common. Whether the loss can reasonably be justified by the requesting party will depend on the circumstances. This includes where any litigation hold covers data stored on mobile devices, encompassing instant and social media messages as well as emails.

Companies’ policies on IT and communications which generally address mobile devices may also be relevant to the requirement of Article 3.3(c)(ii). This provision provides that the requesting must provide:

“… a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of [the receiving Party]”.

These policies generally provide that data generated from any company-owned devices, including social media and instant messages, belongs to the company and can be monitored at all times. Assuming that the request to produce instant or social messages is limited to devices owned by the company, it will therefore likely meet the condition that documents are “in the possession, custody or control” of the party on the receiving end of the request. However, the position may be different if the messages sought were sent from a personal device, rather than one owned by the sender’s employer. In that case, the requesting party may have to establish that the party on the receiving end of the request has control over the data or messages by virtue of the control it has over its employee; this is something that may not be possible if the employee has left the company.

An expectation of privacy

Assuming that a request to produce social media or instant messages meets the requirements of Article 3.3 of the IBA Rules, the question arises as to whether such a request may be opposed due to the context in which they were exchanged, including the private or personal nature of the communication. Depending on the circumstances, such an argument may be based on the nature of this means of communication, which one might claim created an expectation of privacy with the individuals who were involved in these communications.

The nature of social media platforms means that they will contain a mixture of messages. Some may contain personal information, including personal data subject to mandatory regulations. Yet individuals and companies may have preconceived ideas about whether social media or instant messages would be excluded from any disclosure order. Whether such messages could ultimately be caveated from a disclosure order generally depends on factors such as the relationship between the parties (for instance as co-workers or friends) to the social media messages, and who owns the device on which the messages were sent/received or stored. Communication and IT policies might deal with these issues as well as the question of whether the expectation of privacy allegedly created by the nature of instant messaging platforms is legitimate. It is not unusual for such policies to make clear that all communications sent/received on company-owned devices will be deemed as work-related and not private. Some policies go as far as stating that instant messages sent/received using the company’s mobile device may need to be disclosed in court in case of future litigation.

Article 9.2 of the IBA Rules, which refers to “legal impediment or privilege”, “commercial or technical confidentiality” and “special political or institutional sensitivity”, does not include a privacy consideration as a ground to have documents excluded from evidence or production. This does not mean that an arbitral tribunal may not be minded to reject a request for production of relevant social media or instant messages on the basis of an Article 9.2 ground or otherwise. For example, a tribunal, may view the potential risk of violating Article 8 of the European Convention on Human Rights (the right to privacy) as a legal impediment within the meaning of Article 9.2(b) of the IBA Rules. Further, depending on the circumstances, a tribunal may be receptive to objections based on an alleged “unreasonable burden to produce” (Article 9.2(c)) or “procedural economy, proportionality, fairness or equality of the Parties” (Article 9.2(g)).

Ultimately, the answer to these questions will inevitably depend on the circumstances. Arbitration users might want to consider these issues, including as regards their internal policies and the manner in which litigation holds are managed. When it comes to counsel and arbitrators, they should be ready to face requests for social media or instant messages with full knowledge of the facts.

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