It should come as no surprise that companies and individuals that knowingly possess documents and information that may be relevant to an antitrust investigation must maintain that information under federal law and Commission rules. The responsibility to preserve documents exists across all types of media.
As workplaces have evolved, so too have the means by which workers communicate and collaborate. In many of today’s companies, hard-copy documents and emails have been replaced by programs like Slack, Microsoft Teams, Signal, and Google Chats. While these applications represent new ways in which businesses collaborate, they are still company documents bound by the same preservation obligations that have always applied during government investigations and enforcement actions.
Specifically, many of these applications and programs allow, and sometimes automatically enable, destruction of communications and documents—sometimes known as ephemeral messaging. While documents created using these applications are and have always been covered by preservation letters, second requests, voluntary access letters, and compulsory legal process from the Commission, companies have sometimes failed to abide by their document preservation obligations for these methods of communication.
The Bureau of Competition and the Department of Justice Antitrust Division have reviewed and revised the language we use in preservation letters, second requests, voluntary access letters, and compulsory legal processto expressly state what has always been the case: that documents created using collaboration tools and messaging applications are included in those requests.
The revised language makes crystal clear that both ephemeral and non-ephemeral communications through messaging applications are documents. Companies that allow or provide applications with ephemeral messaging capabilities must continue to retain all relevant documents during government investigations and enforcement actions. Appropriate steps to retain relevant documents includes turning off automatic deletion and may even include stopping use of certain applications altogether. The changes also acknowledge that newer messaging applications might implicate employee-owned devices to a greater extent than past methods of communication and provide direction on employee-owned devices that are within the scope of Commission inquiries.
Where companies fail to preserve documents—regardless of what tools are used to create those documents—they may be breaking the law and subject to sanctions. Recent court decisions have found that companies that failed to preserve text messages, Google Chats, and Signal messages had spoliated evidence. Destruction of documents, including by use of ephemeral messaging applications, may result in either civil enforcement action or a referral to criminal prosecutors through the BC Criminal Liaison Unit. The better outcome for all, however, is for companies to take the appropriate steps to preserve documents in the first place, including those documents created in collaborative working environments and messaging applications.
The mission of the Bureau of Competition is to protect the public and competition, and discovery of relevant documents during an investigation or an enforcement action is fundamental to upholding that responsibility. The negligent or intentional destruction of documents through collaborative working environments and messaging applications frustrates this mission and, by extension, the public good. The Bureau of Competition’s joint effort with the Department of Justice Antitrust Division to further companies’ understanding of their document preservation obligations promotes efficient and effective investigations that ultimately protects consumers, workers, and competition.