The Antitrust Division of the U.S. Department of Justice ("DOJ") and the Federal Trade Commission ("FTC") are updating language in document requests and compulsory process to address companies' increased use of collaboration and information sharing tools and ephemeral messaging platforms.
The new joint guidance reinforces existing obligations requiring preservation of materials during a pending government investigation or litigation and makes clear that the "preservation responsibility applies to new methods of collaboration and information sharing tools" and "ensure[s] that neither opposing counsel nor their clients can feign ignorance."
The revised language, which will appear in preservation letters, second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas, clarifies that both ephemeral and non-ephemeral communications through messaging applications are documents. The new language broadly defines a "Messaging Application" as "any electronic method that has ever been used by the Company and its employees to communicate with each other or entities outside the Company for any business purposes," including "platforms, whether for ephemeral or non-ephemeral messaging, for email, chats, instant messages, text messages, and other methods of group and individual communication."
The agencies warned that failure to preserve "any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence," could result in obstruction of justice charges or a motion for civil spoliation sanctions.
The new guidance comes on the heels of last year's addition of guidance on ephemeral messaging to DOJ's Evaluation of Corporate Compliance Programs and numerous enforcement actions by the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission alleging that broker-dealers and registered investment advisors failed to adequately preserve business-related communications on messaging applications. Given regulators' continued focus on messaging applications and ephemeral messaging, as well as employees' increased usage of these methods of communication, companies should carefully assess their corporate policies governing data preservation and access to business-related data on personal devices, company-issued devices, and third-party messaging platforms. Companies should also review their procedures for implementing litigation holds as well as any existing processes for automatic deletion of chats or other data on company-controlled messaging applications. For additional information, see Jones Day's White Paper.
