On January 26, 2024, the Federal Trade Commission and Department of Justice (DOJ) announced, in a joint press release, updated language in preservation notices and discovery instructions specifically addressing the requirement to preserve relevant messages from collaboration tools and ephemeral messaging platforms. The language appears in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas.
What Are These Collaboration Tools and Ephemeral Platforms?
The rise in remote work due to the pandemic accelerated the adoption of new collaboration and information-sharing platforms. Collaboration tools, such as Teams and Slack, centralize group activities for a project into one location where users can work together, communicate, and share documents. Ephemeral messaging platforms, such as Signal and WeChat, allow users to send messages, photos, and videos that disappear automatically after a short period of time.
Continued Focus on New Communication Channels
Over the past few years, there has been increased regulatory scrutiny over how companies collect and store communications data. The concern is that these applications, especially ephemeral messaging platforms, are designed to hide evidence. Calling out the new technologies puts companies and their counsel on notice that preservation obligations extend to relevant information shared through these platforms.
To date, the Securities and Exchange Commission and Commodity Futures Trading Commission have fined corporations over $2 billion for failure to preserve “off-channel communications.” In 2022, the DOJ updated its Corporate Compliance Program guidelines to emphasize that to receive cooperation credit, corporations should have proper document preservation policies and procedures in place to preserve, collect, and produce relevant documents. Check out Crackdown on companies failing to preserve business communications on messaging apps on Reed Smith Viewpoints for more information on the 2022 DOJ updates. Last year, Kenneth Polite Jr., Assistant Attorney General for the DOJ’s Criminal Division, announced updates to the DOJ’s Evaluation of Corporate Compliance Programs guidance to include the use of ephemeral messaging and policies surrounding their use. Specifically, to determine whether a company would receive cooperation credit for an effective compliance program, the DOJ would consider the company’s policies regarding use of collaboration and ephemeral messaging applications.
Now that it is well established that companies have a duty to preserve relevant data from collaboration tools and ephemeral messaging platforms, what should companies and their counsel be doing?
- Inventory Messaging Applications: Maintain an inventory of collaboration tools and chat applications used during the ordinary course of business. Audit to ensure that employees are not communicating using non-approved applications.
- Understand Preservation and Collection: Confirm that data on approved collaboration platforms/chat applications can be preserved and collected. This means close coordination with IT personnel to test and document preservation and collection, ensuring the suspension of auto-deletion when appropriate.
- Policies: Consider implementing policies to prohibit business-related communications on applications that do not allow for suspension of auto-deletion/retention.
- Consult with Counsel: Consult with legal counsel, knowledgeable about information governance and e-discovery, about other steps your company should take to achieve compliance and avoid spoliation of records.