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. 

This failure to preserve is unacceptable to the agencies.  Although they believe that the requirement to preserve ephemeral messages was obvious before, the revised language “makes crystal clear that both ephemeral and non-ephemeral communications through messaging applications are documents” that must be preserved.  The relevant language in the revised second request model now states that “‘Messaging Application’ includes platforms, whether for ephemeral or non-ephemeral messaging, for email, chats, instant messages, text messages, and other methods of group and individual communication (e.g., Microsoft Teams, Slack).”   Also, the model second request states that employee-owned electronic devices used to store or transmit documents responsive to the request are considered to be “in control of the company”.

Companies should review the use of any messaging applications capable of automatically deleting messages to determine what the default settings are and if users have overridden them to delete messages.  In the event of a government investigation and a need to issue a litigation hold notice, the notice should explicitly state that all employees subject to the hold must turn off all auto-deletion functions on all messaging applications on all electronic devices on which they conduct company business. The agencies have signaled this is a priority issue for them and that they may bring obstruction of justice charges or seek civil sanctions if companies fail to preserve ephemeral messages.