FTC and DOJ Update Guidance That Reinforces Parties’ Preservation Obligations for Collaboration Tools and Ephemeral Messaging

The Federal Trade Commission and Justice Department today announced that both agencies are updating language in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas, to address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace. These updates reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.

“Companies and individuals have a legal responsibility to preserve documents when involved in government investigations or litigation in order to promote efficient and effective enforcement that protects the American public. Today’s update reinforces that this 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,” said FTC Bureau of Competition Director Henry Liu.

“These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages,” said Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division. “The Antitrust Division and the Federal Trade Commission 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.”

Companies continue to adopt new technologies to do their work, and in recent years there has been an increase in use of collaboration tools and ephemeral messaging applications, such as Slack, Microsoft Teams, and Signal. Some of these technologies allow, or even automatically enable, immediate and irretrievable destruction of communications and documents. Documents created through use of these technologies have long been covered by FTC and DOJ document requests. However, companies have not always properly retained these types of documents during government investigations and litigation.

When companies fail to preserve documents covered by an FTC investigation or enforcement action, the Commission has successfully moved for civil spoliation sanctions and may refer cases to criminal prosecutors through the Bureau of Competition’s Criminal Liaison Unit in appropriate circumstances.

Today’s announcement underscores the continued cooperation between the Antitrust Division and FTC’s Bureau of Competition on criminal enforcement of antitrust laws and related issues that arise in antitrust actions.