DOJ & FTC Update Compliance Guidelines: Preserve Messaging Data

The Department of Justice (DOJ) and the Federal Trade Commission (FTC) have jointly updated their guidance on corporate compliance programs and preservation obligations. The updates focus on the use of messaging applications and the importance of preserving information during investigations and prosecutions.

The DOJ's updated guidance now considers the use of messaging applications in investigations and prosecutions. Companies are advised to understand how their employees use collaboration and messaging platforms like Google Chats and Signal to ensure they can preserve information when needed.

The FTC and DOJ have clarified that companies' preservation obligations extend to both ephemeral and non-ephemeral communications on messaging platforms. These obligations arise when a company anticipates or learns of an investigation or litigation, requiring immediate action to disable auto-deletion functions and preserve messages.

Both agencies have updated their standard letters and specifications to include messaging applications in preservation obligations. The FTC and DOJ are focusing on companies that have violated their document preservation obligations by using automatically deleting communication platforms like Messenger. These companies face potential injunctions, monetary judgments, compliance reporting requirements, and other equitable relief to prevent further harm and ensure restoration of competition.

In a joint statement, the FTC and DOJ emphasized preservation obligations for companies using messaging platforms like Slack and Google Chats. Recent court decisions have found companies guilty of spoliation for failing to preserve messages on platforms like Google Chats and Signal. The updates reinforce that preservation responsibilities apply to new methods of collaboration and information sharing tools, including those with ephemeral messaging capabilities like RCS messages.

The FTC has warned that it may pursue civil spoliation fines and refer conduct for criminal prosecution if preservation obligations are not met. Companies are urged to review their internal policies and ensure they are complying with these updated guidelines to avoid potential penalties and legal consequences.