The risks of disappearing messages in commercial litigation

Email is no longer the only common form of business communication. Many peoples now use WhatsApp, Microsoft Teams, Signal and Snapchat.

Some of these services allow messages, photographs or videos to be removed or deleted automatically after a set time period or once they have been viewed.

For example:

• Snapchat: photos and videos automatically disappear once viewed.
• WhatsApp: offers “view once media” and the ability to auto-delete messages after 24 hours, 7 days or 90 days.
• Signal: allows users to set a timer after which messages and media are deleted.

These features are convenient, but they can create difficulties when a business or an individual needs to comply with their disclosure obligations in civil litigation in England and Wales.

What is disclosure?

Disclosure is the process by which parties to a court case identify and make available documents that are relevant to the issues in dispute. Parties must disclose documents that support their own case and which support the other party’s case or harm their own case or another party’s case.

The main rules are to be found in Part 31 of the Civil Procedure Rules (CPR) and in the case of matters before the Business and Property Courts, Practice Direction 57AD.

What counts as a “document”?

The definition is very wide. Under the CPR, a document is “anything in which information of any description is recorded.” It includes paper documents and electronic material such as emails, instant messages, text messages, voicemails, word-processed files and information held in databases and computer systems.

Why disappearing messages are a problem

WhatsApp, Snapchat and Signal are all examples of ephemeral communications. This means that they can be set to operate on the basis of passive automation, which allows messages to be automatically deleted in the background after a set period of time unless the user manually changes the settings.

WhatsApp and Signal are by default set to save all standard chats and group messages locally to the relevant device. However, both have in-built features that will automatically delete messages if they are selected. For example, by using the disappearing messages feature or by selecting view once media.

This creates a direct risk that relevant evidence will be lost. Deleted messages can sometimes be recovered, albeit at a potentially significant cost, but allowing them to disappear after proceedings have started, or when proceedings are reasonably in prospect, can have serious consequences.

A recent example: McLaren Indy v Alpa Racing

The Commercial Court considered this issue in McLaren Indy LLC and others v Alpa Racing USA LLC and others [2026] EWHC 110 (Comm). McLaren had an internal policy that encouraged staff to use WhatsApp’s disappearing messages function.

Although an instruction was given to preserve all relevant documents, the disappearing function was not switched off by one of the witnesses of fact.

This witness said that he did not think it mattered because he had stopped discussing relevant issues on WhatsApp by that point. The judge described the position regarding the WhatsApp communications as “unsatisfactory” and said it would be kept in mind when assessing the evidence.

The judgment did not explain precisely what effect this ultimately had on that assessment.

Consequences of failing to preserve disclosable documents

A failure to take reasonable preservation steps may lead to:

• Satellite litigation to determine the reason for that failure and the consequences which should flow from that default
• Adverse criticism from the judge
• The court drawing an adverse inference, meaning it may conclude that the missing material would not have assisted the party responsible for preserving it
• An order requiring a witness statement explaining the failure
• Costs sanctions.

What action should be taken to preserve documents?

When a dispute arises, or litigation is reasonably anticipated:

1. Pause automatic deletion: Suspend routine document-destruction and auto-deletion policies for potentially relevant material.
2. Issue a written preservation notice: Tell current and former employees who may hold relevant documents what documents and communications must be kept. Identify the relevant categories clearly and instruct recipients not to delete, amend or destroy them.
3. Switch off disappearing-message features: Disable automatic deletion, “view once “ and similar functions in WhatsApp, Signal and Snapchat where relevant material may be held or created.
4. Identify all likely sources: Consider work and personal devices, messaging apps, email accounts, shared drives, cloud storage and databases, where these may contain business communications relevant to the dispute.
5. Set a clear communications policy: If services with disappearing messages are permitted, restrict them to genuinely low-risk or casual communications and make clear that they must not be used for matters that may need to be retained.
6. Monitor compliance: Check that preservation steps have been implemented and keep them under review for as long as necessary.

Final point

The safest approach is to treat disappearing messages in the same way as any other business record. If the content may be relevant to an existing or anticipated dispute, it should be preserved.

Early legal advice can help identify the appropriate scope of a preservation exercise and avoid unnecessary disruption or cost.

How Morr & Co can help?

If you have any questions in regards to director disputes, personal liability or you would like any additional information on the content of this article, please do not hesitate to contact our Dispute Resolution team on 0333 038 9100 or email info@morrlaw.com.