Disappearing No More: Maintaining Electronic Messages for Antitrust Investigations

By:  Michael Weiner, John Kavanagh, Lee Berger & Travis West (Steptoe Antitrust)

The Antitrust Division of the Department of Justice and the Federal Trade Commission have recently issued an updated model second request, explicitly stating that companies under investigation are obligated to preserve communications made via messaging platforms, including those on so-called ephemeral applications. These applications, such as Slack, Microsoft Teams, Signal, and Google Chat, are capable of automatically deleting messages, presenting a challenge when implementing litigation holds.

A federal judge sanctioned Google in March 2023 for representing to the court that it was preserving messages on Google Chat while not disabling the setting allowing for 24-hour default deletion. In their joint statement, the agencies highlighted that many companies have failed to properly retain documents from these ephemeral messaging systems in response to preservation requirements in second requests, voluntary access letters, and compulsory legal processes like grand jury subpoenas.

The agencies find this failure to preserve unacceptable. While they believe that the obligation to preserve ephemeral messages was already clear, the revised language now explicitly states that both ephemeral and non-ephemeral communications through messaging applications are considered documents that must be preserved. The updated model second request defines “Messaging Application” broadly to include platforms for email, chats, instant messages, text messages, and other forms of group and individual communication, such as Microsoft Teams and Slack.

Additionally, the model second request clarifies that employee-owned electronic devices used to store or transmit documents responsive to the request are deemed to be “in control of the company.”

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