Antitrust enforcers flag Slack, encrypted email and other ephemeral messaging apps and warn of potential obstruction of justice charges and fines for a company’s failure to preserve such communications during litigation or government investigations

On Friday, January 26, 2024, federal antitrust enforcers issued joint press releases warning of potential obstruction of justice charges and fines for a company’s failure to preserve information during the pendency of litigation and government investigations, specifically calling out collaboration tools such as Microsoft Teams, Signal, Slack and other ephemeral messaging applications utilized on online communication platforms or similar technologies that allow, permit or even facilitate the immediate and irretrievable destruction of communications and documents.¹

The Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) announced that each agency was updating language contained in the agencies’ standard preservation letters and specifications for all second requests, voluntary access letters and compulsory legal process, including grand jury subpoenas, to address the use of collaboration tools and ephemeral messaging platforms, which updates the agencies stated were necessary to reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation, particularly in light of these new methods of collaboration and information sharing tools.

The agencies observed that while documents created through use of online messaging platforms and related technologies have fallen squarely within the agencies’ prior document requests, companies have not always properly retained these types of documents during government investigations and litigation. Collaboration tools and instant messaging apps such as Microsoft Teams, Signal and Slack were identified specifically as ephemeral messaging technologies that enable the immediate and irretrievable destruction and electronic purge of communications and documents. Deputy Assistant Attorney General (AAG) Manish Kumar of the Antitrust Division remarked 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,” warning that any failure to do so “…may result in obstruction of justice charges.” Deputy AAG Kumar noted further that “[t]hese 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.” Where opposing counsel and companies fail to preserve and produce information contained in ephemeral messaging applications, the FTC warned that it may pursue civil spoliation fines in civil litigation and may refer the conduct for criminal prosecution through the FTC’s Bureau of Competition’s Criminal Liaison Unit. 

Employee communications—through both official and unofficial channels—are routinely targeted by federal enforcement agencies in litigation and investigations. As technology continues to improve and evolve, new methods of collaboration and information sharing tools will continue to be created, adopted and used by companies and their employees, including tools that allow for company communications and documents to evaporate or disappear instantaneously via ephemeral messaging capabilities. The manner and methods in which companies permit, monitor, preserve and archive these types of communications are becoming increasingly more important to government enforcement agencies as evidenced by the DOJ’s inclusion of specific guidance earlier last year for assessing how companies govern employees’ use of personal devices, communication platforms and messaging applications. On March 3, 2023, the DOJ released an update to its Evaluation of Corporate Compliance Programs guidance (ECCP Guidance), which serves as guidance for prosecutors when evaluating a corporate compliance program.² The updated ECCP Guidance includes new guidance for assessing how companies govern employees’ use of personal devices, communication platforms and messaging applications. The newly updated ECCP Guidance explains how the DOJ, going forward, will consider when evaluating corporate compliance programs and investigating potential misconduct, a company’s specific policies and procedures related to the use of personal devices, online communications platforms and messaging applications, including ephemeral messaging applications. Under the newly updated ECCP Guidance, the DOJ now will consider the following:

1. Whether and how policies relating to personal devices and communications platforms are “tailored to the [company’s] risk profile and specific business needs”;
2. Whether and how the policies (and other mechanisms) ensure that business-related data and communications are “accessible and amendable to preservation,” including specific inquiry into “[w]hat preservation or deletion settings are available to each employee” and also “the rationale for the company’s approach to determining which communication channels and settings are permitted”;
3. Whether and how the company’s policies with respect to same have been communicated to employees; and
4. Whether and how the company has enforced its policies on a regular and consistent basis, including specific inquiry into whether and to what degree messaging applications—including ephemeral messaging applications—have “impaired in any way the organization’s compliance program or its ability to conduct internal investigations or respond to requests from prosecutors or civil enforcement or regulatory agencies”.

The DOJ Antitrust Division’s and the FTC’s joint press releases issued last Friday are yet another iteration of what is becoming increasingly more clear: innovative communication technologies present unique challenges for targeting and collecting employee communications and company documents generated and/or transmitted via dynamic, auto-erase and purge messaging platforms in litigation and government investigations. Government enforcement agencies are keen to manage these challenges by using their enforcement guidance given to prosecutors coupled with their enforcement authority to seek and impose civil fines and criminal liability when companies fail to take appropriate steps to ensure that potentially relevant communications and documents are not deleted or otherwise rendered inaccessible to regulators through a company’s adoption and use of advanced communication tools.