The reason the agencies are concerned is that several of these messaging technologies also allow the immediate and irretrievable destruction of communications and documents.

Companies and individuals must be aware of their legal obligations to preserve communications when involved in government investigations or litigation, especially in light of new preservation standards from the Federal Trade Commission and Department of Justice. Due to concerns with the increased use of collaboration tools like Microsoft Teams and ephemeral messaging applications like Signal, the agencies are updating the language they include in standard preservation letters and requests for information, including second requests, voluntary access letters, civil investigative demands, other compulsory legal processes and grand jury subpoenas.

Key Takeaways

• Companies must preserve materials during the pendency of antitrust investigations and litigation.
• Companies should be mindful of that obligation in light of the proliferation of collaboration tools and ephemeral messaging applications.

Why Are the Agencies Concerned with Messaging Applications?

In the wake of the COVID-19 pandemic, many businesses increased their use of collaboration tools like Slack and Microsoft Teams. Rather than communicating mostly by email, critical business decisions are increasingly being made using these collaboration platforms. Businesses and individuals are also increasingly using alternative messaging applications that make international communications easier and offer enhanced security and privacy features. The reason the agencies are concerned is that several of these messaging technologies also allow the immediate and irretrievable destruction of communications and documents.

Both agencies indicated that they want businesses subject to antitrust investigations to understand their obligation to preserve these types of communications. FTC Bureau of Competition Director Henry Liu highlighted that “preservation responsibility applies to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities.” Deputy Assistant Attorney General Manish Kumar warned that 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.” Kumar continued, “Failure to produce such documents may result in obstruction of justice charges.”

What Does This Mean for Businesses?

This announcement and the updated language to be used by the agencies in making document requests reinforce longstanding obligations requiring companies to preserve materials during the pendency of antitrust investigations and litigation. Companies should be aware that certain messaging applications may be designed in a way that makes compliance with preservation obligations more difficult. Companies should consult with counsel to evaluate the selection of such applications for use in conducting business, in addition to evaluating their document preservation and retention policies generally, and when faced with requests for information from regulatory agencies. In addition, companies should be aware that traditional methods of forensic collection of messaging data may not be effective for ephemeral messaging platforms, thus early engagement of experienced counsel at the outset of an investigation is critical.

For More Information

If you have any questions about this Alert, please contact Sean P. McConnell, Sarah O'Laughlin Kulik, Christopher H. Casey, any of the attorneys in our Antitrust and Competition Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.