Date Released: FTC-PR-240126-1

January 26, 2024


FTC-PR-240126-1 – FTC and DOJ Update Guidance That Reinforces Parties’ Preservation Obligations for Collaboration Tools and Ephemeral Messaging


The Federal Trade Commission and Justice Department today announced that both agencies are updating language in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal processes, including grand jury subpoenas, to address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace. These updates reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.

“Companies and individuals have a legal responsibility to preserve documents when involved in government investigations or litigation in order to promote efficient and effective enforcement that protects the American public. Today’s update reinforces that this preservation responsibility applies to new methods of collaboration and information-sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities,” said FTC Bureau of Competition Director Henry Liu.

“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,” said Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division. “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.”

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[Date Accessed: 3/4/2024]

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