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

This CLE webinar will discuss the 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. This guidance is now embedded in the standard preservation letters and processes that the various agencies use in their investigations. 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.

In recent years the FTC and DOJ's Antitrust Division released 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 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 guidance simply reinforces an organization's longstanding and existing preservation obligations. However, these expectations warrant 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 civil spoliation and criminal obstruction of justice charges.

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 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.