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The Federal Trade Commission (FTC) and the Department of Justice’s (DOJ) Antitrust Division announced today in a joint statement that both agencies are updating language in their standard preservation letters, second requests, voluntary access letters and compulsory legal process, including grand jury subpoenas, to address organizations’ increased use of collaboration tools and ephemeral messaging platforms.

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The updates reinforce the “longstanding obligation” to preserve and produce all responsive documents, including data from ephemeral messaging applications that allow messages to disappear or are designed to hide evidence. “Failure to produce such documents may result in obstruction of justice charges,” said Deputy Assistant Attorney General Manish Kumar.

While documents created through use of modern collaboration tools and ephemeral messaging applications have long been covered by FTC and DOJ document requests, “companies have not always properly retained these types of documents during government investigations and litigation.”

The updates serve to “ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages.”

The agencies’ joint statement declared that this “underscores the continued cooperation between the [DOJ] Antitrust Division and FTC’s Bureau of Competition on criminal enforcement of antitrust laws and related issues that arise in antitrust actions.”

<a href="https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-doj-update-guidance-reinforces-parties-preservation-obligations-collaboration-tools-ephemeral">FTC Press Release</a>

<a href="https://www.justice.gov/opa/pr/justice-department-and-ftc-update-guidance-reinforces-parties-preservation-obligations">DOJ Press Release</a>

FTC and DOJ Update Guidance Regarding Preservation of Data from Collaboration Tools and Ephemeral Messages