Extract from Jones Day’s article “DOJ’s Antitrust Division and the FTC Announce New Guidance on Preservation for Collaboration Tools and Ephemeral Messaging”
The Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) are updating language in document requests and compulsory process to address companies’ increased use of collaboration and information sharing tools and ephemeral messaging platforms.
The new joint guidance reinforces existing obligations requiring preservation of materials during a pending government investigation or litigation and makes clear that the “preservation responsibility applies to new methods of collaboration and information sharing tools” and “ensure[s] that neither opposing counsel nor their clients can feign ignorance.”
The revised language, which will appear in preservation letters, second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas, clarifies that both ephemeral and non-ephemeral communications through messaging applications are documents. The new language broadly defines a “Messaging Application” as “any electronic method that has ever been used by the Company and its employees to communicate with each other or entities outside the Company for any business purposes,” including “platforms, whether for ephemeral or non-ephemeral messaging, for email, chats, instant messages, text messages, and other methods of group and individual communication.”