Federal authorities have once again emphasized the importance of preserving chats, data from collaboration tools, and so-called "ephemeral" messages relevant to investigations or litigation. On January 26, the Federal Trade Commission and the Antitrust Division of the Department of Justice announced that they are updating language in their standard preservation letters, subpoenas, and second requests to explicitly clarify that a party's legal responsibility to preserve evidence "applies to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities."
"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," said Manish Kumar, Deputy Assistant Attorney General of the Justice Department's Antitrust Division.
This recent announcement is the latest in a series of agency statements that the obligation to preserve and produce evidence extends beyond traditional emails and electronic documents. Agencies — and increasingly, courts — have explained that the duty to preserve, once triggered, extends to all communications, including those on non-traditional messaging platforms like Slack, Microsoft Teams, Google Chat, Zoom, Snapchat, Signal, Telegram, WhatsApp, WeChat, Clubhouse, Wickr, etc.
This agency interest is not new. As early as 2017, the Department of Justice required cooperating parties to maintain controls over employees' ephemeral messaging to receive cooperation credit. The DOJ Criminal Division's current policy on Evaluating Corporate Compliance Programs instructs prosecutors to consider whether a corporation has effective policies and procedures governing the use of personal devices and messaging applications, ensuring that data is accessible and preservable to the company. In 2023, Assistant Attorney General Kenneth Polite explained that the department expects production of chat and ephemeral messaging data and will not take its absence "at face value." A company's ability to account for chat and personal device data "may very well affect the offer it receives to resolve criminal liability."
The Securities and Exchange Commission has also increased its scrutiny. In an October 2021 speech, the SEC's Division of Enforcement...
