The Department of Justice (DOJ) and Federal Trade Commission (FTC) updated language contained in standard preservation letters regarding the maintaining of business communications made via collaboration tools and ephemeral messaging apps.
The DOJ’s Antitrust Division and FTC said in a joint press release Friday that the updated language contained in all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas, will “reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.”
Specifically mentioned were collaboration tools and apps like Microsoft Teams, Signal, and Slack, technologies which “allow, or even automatically enable, immediate and irretrievable destruction of communications and documents,” the agencies said.
Deputy Assistant Attorney General Manish Kumar of the DOJ’s Antitrust Division said the agencies “expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges.”
Documents created through use of these technologies have long been covered in DOJ and FTC document requests. However, companies have not always properly retained these types of documents during government investigations and litigation, the agencies said.
Companies failing to turn over such communications could face civil spoliation sanctions from the FTC and criminal prosecutions through the FTC’s Bureau of Competition’s Criminal Liaison Unit.
The FTC noted a 2021 case in Arizona, in which the agency imposed civil spoliation sanctions on an individual who, upon learning about the FTC’s investigation, began using ephemeral apps and encrypted emails to hide the business communications of himself and his executive team.
Monitoring, recording, and archiving employee communications, whether as part of a business’s official channels or through the supervision and monitoring of off-channel communication use by employees, has become a nettlesome problem for compliance officers. There are a staggering number of platforms that employees can use on their personal phones to communicate with each other, managers, clients, customers, competitors, and the public. Tackling the thorny issue of capturing and recording employee communications made via ephemeral apps is also part of the problem.
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