Disappearing No More: Maintaining Electronic Messages For Antitrust Investigations

The Antitrust Division of the Department of Justice and the Federal Trade Commission recently issued a revised model second request clarifying that companies under investigation have an obligation to preserve communications on messaging platforms including those on so-called ephemeral applications. These applications, such as Slack, Microsoft Teams, Signal, and Google Chat, can be configured to delete messages automatically, posing a problem when a litigation hold is implemented. A federal judge sanctioned Google in March of 2023 for telling the court that it was preserving messages on Google Chat while not turning off the setting that allowed for 24-hour default deletion. In their statement, the agencies noted that many companies have not properly been retaining documents from these ephemeral messaging systems in response to preservation requirements in second requests, voluntary access letters, and compulsory legal process such as grand jury subpoenas.