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Mark Cuban’s Plan for Limiting Scope of Discovery in Lawsuits

The Dallas Mavericks owner has developed a disappearing message app, called Cyber Dust, that he thinks will help businesses avoid unwanted intrusion from regulators.

When a Dallas jury found Mark Cuban not guilty in the Securities and Exchange Commission’s action against him for insider trading last October, the brief intersection of financial regulators with the billionaire owner of the Dallas Mavericks NBA team seemed to pass.

But now Cuban is back with a messaging app that he says has the potential to make the work of financial prosecutors that much more difficult.

Cuban’s experience of the SEC case, in which the regulator claimed he traded on nonpublic information to sell shares he owned in Canadian Internet company Mamma.com and avoid a $750,000 loss, inspired him to launch mobile phone app Cyber Dust in April. Messages sent via Cyber Dust disappear after 24 seconds of being read and are not stored anywhere on the company’s servers, according to Cuban, who is bullish on the potential of disappearing message apps for a business audience — a key point of difference with rival service Snapchat, which since its launch in late 2011, has become popular primarily with the 13–24 demographic.

But ask him whether he’s built an app to facilitate insider trading, and Cuban is more defensive. “How many traders, of all traders in the universe, have any insider information available to them?” he asked in an interview with Institutional Investor conducted on Cyber Dust late last week (screenshots were taken of all messages, with Cuban’s permission). Institutional Investor’s reply: Let’s assume it’s a small number — wouldn’t an app like this actually make it easier for them to pass on inside info with less detectability?”

Cuban did not address that question directly. But he is convinced that ephemeral messaging has appeal to businesses that face high litigation risks. “Think of this as E-mail 3.0 and protection against litigious business partners,” he said. But what does that mean? “Meaning, if you are in a business with a lot of lawsuits, you save a lot of time and money because nothing sent or received on here is discoverable.”

But doesn’t that imply the app will appeal most to those engaging in legally questionable activity? Why would anyone engaging in communication for legitimate, lawful business purposes ever want their messages to disappear? Cuban’s response: “Are you serious?”

Cuban’s commentary has been scathing about what he described after the October verdict as the SEC’s “deceitfulness”and overreach in pursuing him for the 2004 sale of his shares in Mamma.com, with much of his criticism centering on the fact that his e-mails and phone messages were wilfully misconstrued to support the regulator’s case. Disappearing message apps, Cuban says, allow users to retain control of their communications while removing the ability of regulators to access and distort them.

The 56-year-old, who came to national prominence in 1999 when he sold Broadcast.com to Yahoo for $5.7 billion, is a judge on the investment reality TV show Shark Tank. But despite his proven business acumen,selling a product on the basis that it allows users to avoid discovery seems like an odd pitch — especially for someone who maintained his innocence of the illegal activity the SEC had accused him of and relied on regular legal channels, which include the process of discovery, to vindicate that position.

The way Cuban explains it, Cyber Dust is less about facilitating unlawful conduct than it is about removing the inefficiencies that come with unwarranted intrusion into ordinary business communication: “Look at every message you have ever sent. Business. Personal. And ask if it could be used out of context and cause you a problem.” For businesspeople, Cuban contends, “every text, every WhatsApp message you send, carries an unquantifiable risk. No smart person is going to take that risk if they have an option.”

Cuban says the app, which launched in April, is “closing in on 1 million users,” well short of the 100 million users reportedly active on Snapchat, which, following a recent $20 million investment by Menlo Park, California–based venture capital firm Kleiner Perkins Caufield & Byers, is now valued at nearly $10 billion. But he is dismissive of the suggestion that Cyber Dust is simply a less successful, copycat version of Snapchat for anyone older than 25. “We are keyboards for content; they are crayons for kids,” he said, referring to the fact that Cyber Dust users land on a keyboard messaging screen first, rather than the crayon-enhanceable photo screen that is the landing screen for Snapchatters. Cyber Dust, he says, “reduces your risk” and “improves your ability to send business information nonintrusively.”

Cuban is not the only entrepreneur developing mobile apps designed to allow business users to limit the legal intrusions of government. Australian law firm Clayton Utz, for instance, last month released its Dawn Raid app, which provides businesses with a step-by-step mobile manual for how to act during a raid by police, tax authorities or antitrust and securities regulators. But whereas hundreds of businesses had downloaded the law firm’s app within a day of its release, it’s unclear whether disappearing message apps will ever catch on for legitimate commercial purposes, given the compliance and record-keeping requirements many businesses face.

Cuban seems happy with that, despite a plan to introduce “commercial versions” of the app, which will, he says, make the user base “grow virally.” Asked whether he had any idea of how many of the app’s near-million users were on Cyber Dust for business reasons, Cuban replied, “No idea. We keep no data.”

Follow Aaron Timms on Twitter at @aarontimms.

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