DOJ, FTC Update Guidance that Reinforces Parties’ Preservation Obligations for Collaboration Tools

These updates reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.

Companies continue to adopt new technologies to do their work, and in recent years there has been an increase in use of collaboration tools and ephemeral messaging applications, such as Slack, Microsoft Teams and Signal. Some of these technologies allow, or even automatically enable, immediate and irretrievable destruction of communications and documents.

Documents created through use of these technologies have long been covered by Justice Department and the FTC document requests. However, companies have not always properly retained these types of documents during government investigations and litigation.

This announcement underscores the continued cooperation between the Antitrust Division and FTC’s Bureau of Competition on criminal enforcement of antitrust laws and related issues that arise in antitrust actions.