New FTC and DOJ Guidance on Ephemeral Messaging: Mitigating Regulatory Risks, Ensuring Compliance
Failure to Preserve Short-Lived Communications Can Result in Criminal Liability and Civil Sanctions
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Corporate Law
- event Date
Thursday, April 18, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss the new guidance released by the Federal Trade Commission (FTC) and Department of Justice (DOJ) regarding a company's obligation to preserve ephemeral messages from corporate collaboration tools. The panel will highlight key issues for corporate counsel to consider when advising clients in this area and best practices for mitigating risks and ensuring compliance.
Mr. Gold has nearly 20 years of experience in the legal space. His experience in e-discovery technical consulting, consultative selling, as well as leading a national operations team for an IT managed services company has enabled him to provide a comprehensive approach to how legal professionals can leverage technology to create a collaborative and dynamic approach to e-discovery. Mr. Gold’s passion for managed services has made him a known thought leader in e- discovery. In addition to being published in several blog posts, articles, and white papers over the years, he is also a frequent CLE speaker.
As a former senior official at the Antitrust Division of the U.S. Department of Justice, Mr. Hart has nearly 25 years of government experience involving all facets of criminal antitrust cartel investigations, prosecutions, and litigations, including federal criminal jury trials, corporate leniency applications, grand jury investigations, and compliance programs. In addition to his vast criminal antitrust experience, he worked at the SEC and as a Special Assistant U.S. Attorney and routinely worked with other governmental and international enforcement agencies. Mr. Hart is a frequent speaker on criminal antitrust and litigation issues. He currently serves as Chair of the Criminal Antitrust Subcommittee for the ABA's Litigation Section and Vice-Chair of the Antitrust Law Section's Cartel and Criminal Practice Committee for the New York State Bar Association. He also serves as a non-governmental advisor for the International Competition Network.
Ms. McGovern is a government investigations and white collar lawyer who advises clients regarding their most sensitive litigation, regulatory enforcement and compliance issues across a broad range of industries, including financial services, health and life sciences, telecommunications, consumer products and manufacturing, and sports and education. She leads global investigations and litigates matters involving allegations of securities and financial fraud, FCPA violations and transnational corruption, healthcare fraud and other governmental investigations. Ms. McGovern is a former Senior Deputy Chief of the DOJ’s Fraud Section, Criminal Division, where she lead a team of more than 150 trial attorneys. She also led corporate fraud investigations and multiple high-profile white collar prosecutions resulting in the convictions of executives at publicly traded companies.
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.
- Overview of the FTC's and DOJ's new guidance
- Consequences for noncompliance: criminal liability and civil sanctions
- Key considerations for effective compliance
- Data retention policies
- Legal hold protocol
- Messaging applications and usage
- Employee training and auditing
- Additional factors to consider regarding data retention: privacy laws
- Key takeaways
The panel will address these and other important issues:
- What are the key takeaways regarding the FTC's and DOJ's updated guidance?
- What are the critical and challenging legal and regulatory compliance issues with ephemeral messaging platforms?
- What are best practices for handling ephemeral messages in light of the new guidance and increased scrutiny of an organization's efforts to comply with its preservation obligations?
