New FTC and DOJ Guidance on Ephemeral Messaging: Mitigating Regulatory Risks, Ensuring Compliance

Description

Recently, the FTC and DOJ's Antitrust Division released updated guidance regarding how parties in enforcement and investigative matters must preserve ESI from collaboration tools and ephemeral messaging platforms like Slack, Microsoft Teams, Google Chat, and Signal. The new guidance is aimed at counteracting settings that allow or automatically enable immediate and irretrievable destruction of communications and documents that may ultimately be responsive to the FTC's or the Antitrust Division's investigative requests.

The FTC and DOJ emphasized that the new guidance simply reinforces an organization's longstanding and existing preservation obligations. However, the new guidance warrants careful attention and organizations need to take appropriate steps to ensure data preservation because failure to do so can have significant repercussions including the potential for criminal obstruction of justice charges and civil discovery sanctions.

To minimize the potential for legal and regulatory risks, organizations using ephemeral messaging and collaboration tools need to take a proactive approach to implement policies and procedures that align with their particular needs and perceived risks. Some actions organizations and their counsel should consider include reviewing the organization's data retention policies, establishing legal hold protocols for relevant ESI repositories, evaluating the risks associated with various messaging platforms currently in use, and developing employee training and periodic auditing to ensure compliance with policies.

Listen as our authoritative panel addresses the new regulatory guidance concerning preservation of ephemeral messaging data and provides best practices for developing policies and procedures to improve corporate governance while also addressing a company's legal and regulatory risks.