With the advent of messaging apps such as Slack, Microsoft Teams, and Signal, the ways in which employees are able to communicate and collaborate with each other are rapidly expanding. At the same time, companies have increased use of document collaboration platforms such as Microsoft SharePoint and eRooms to supplement or replace traditional closed-system document management systems. Message and document retention within these platforms is uneven and, in some cases (such as in the popular messaging app SnapChat), speedy message erasure is not a bug, but a feature. On Friday, January 26, the Federal Trade Commission (“FTC”) and Department of Justice Antitrust Division (“DOJ”) announced that the two agencies are updating the standard preservation obligation guidance to keep pace with the expanded use of collaboration tools that do not otherwise prioritize message retention.
The agencies emphasize that companies have always been required to preserve all relevant communications and documents during government investigations and litigations. The updated standard preservation letters, however, now specifically include the obligation to preserve documents and communications stored on “Collaborative Work Environments” and “Messaging Applications.” See Model Second Request, revised January 2024, at D4 and D9.
Messaging apps such as Slack and Microsoft Teams can allow messages to disappear after a period of time, or in some cases, immediately delete evidence of the messages and documents permanently. These so-called “ephemeral” messages have become increasingly common for workplace communication. By updating the preservation obligation guidance, the agencies are sending a clear message to parties not to circumvent the retention obligations through ephemeral messaging, and to take affirmative steps to ensure that messages sent and received in such apps are not deleted. Failure to do so during an investigation, according to DOJ, could result in criminal charges for obstruction of justice. With ephemeral messaging under particular scrutiny by DOJ and FTC, companies under investigation by or engaged in litigation against the agencies should take all appropriate steps to preserve any potentially relevant documents and communications, including those stored on collaboration platforms and ephemeral messaging apps. This may involve turning off any automatic deletion features within the apps or disabling the apps altogether. When under investigation by the FTC or DOJ, companies should work with counsel and document-hosting vendors to preserve documents over multiple apps, multiple platforms, and potentially, multiple devices such as company- and employee-owned devices used to conduct business.