In response to the growing use of collaboration and ephemeral messaging platforms by companies, the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) have revised their standard preservation letters and specifications. These modifications are applicable to all second requests, voluntary access letters, and compulsory legal processes.
The DOJ and FTC jointly issued a press release stating that these updates were essential for preserving materials during government investigations and litigation. The agencies noted an increasing trend among corporations using applications such as Slack, Microsoft Teams, and Signal for communication purposes. They highlighted that these apps often facilitate instant—and in some cases automatic—destruction of communications and documents. Despite being covered by DOJ and FTC document requests for some time, these documents have not always been adequately preserved during government investigations and litigation.
A 2022 report on workplace communications by Spiceworks Ziff Davis indicates a decline in the use of analog voice and email over several years, with an increasing number of companies adopting video conferencing and collaboration solutions. The report revealed that 51% of over 1,000 IT decision-makers surveyed prefer real-time business chat apps like Slack and Microsoft Teams over email.
Deputy Assistant Attorney General Manish Kumar from the Justice Department’s Antitrust Division stated: "These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages." Kumar further added: "The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges."
