"Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.)" Yes. But ta

"Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.)" Yes. But taking action to evade discovery after litigation has become active is quite a bit different from choosing not to retain information that may or may not ever become subject to litigation. I guess I should have said "the chat app ate my homework" is a valid excuse if you always use the homework-eating chat app. But if you start using the homework-eating chat app because you're intending to discuss active litigation, that's just getting too cute. Let's be clear here: you don't have to delete or encrypt communications to protect it from discovery. Privileged attorney-client work product is always protected from discovery, whether it's in plain text, encrypted, written on paper, or whatever. But for some reason (I speculated on one) they chose not to do this work as attorney-client work product.