The US Federal Trade Commission and the Department of Justice addressed the increased use of collaboration tools and ephemeral messaging in the workplace by announcing last month that it will update language in their standard preservation letters and specifications for all HSR Second Requests, as well as voluntary access letters and compulsory legal process, including grand jury subpoenas, to require companies to preserve the collaborative materials.

In US antitrust law, second requests are a discovery process used by the FTC and the Antitrust Division of the DOJ to investigate mergers and acquisitions that may have anticompetitive consequences. With the new language, the government agencies expect opposing counsel to preserve and produce all responsive documents, including data from ephemeral messaging applications designed to encrypt, hide, or automatically remove evidence. According to FTC Bureau of Competition Director Henry Liu, the new preservation letters and specifications apply to “new methods of collaboration and information sharing tools that allow messages to disappear via ephemeral messaging capabilities.”

Companies continue to adopt new technologies, such as WhatsApp, text messaging, Microsoft Teams, Slack, Signal, and other real-time messaging apps, to accomplish work. The agencies’ legal process updates aim to ensure that opposing counsel and their clients can’t ignore ephemeral and text messaging when they use them to conduct business.

When companies do not preserve documents covered in an FTC or DOJ investigation or enforcement action, the agencies can move for civil spoliation sanctions and refer cases for criminal prosecution if warranted. “Failure to produce such documents may result in obstruction of justice charges,” said Manish Kumar, Deputy Assistant Attorney General of the DOJ’s Antitrust Division.

If your company receives a letter from the DOJ or FTC that specifies the preservation of text messaging on smartphones, ModeOne’s revolutionary technology can help. ModeOne remotely collects smartphone evidence anywhere worldwide with same-day service and targets only custodian data relevant to an investigation or litigation, ignoring private, irrelevant information. The automated, remote collection solution eliminates the need to distribute collection kits or deploy onsite forensic technicians.  

With ModeOne’s patented, secure SaaS framework, you can stay on track and within the stringent deadlines of a regulatory investigation. ModeOne allows you to capture, encrypt, and transmit relevant smartphone data to an ISO-certified data center where it is processed, normalized, and visually formatted for you to quickly review, search, filter, and export the data into Relativity or another e-discovery review platform.

Corporations and their in-house attorneys or outside counsel can use ModeOne to quickly preserve and review data relevant to a second request or other regulatory investigation while preserving custodians’ data privacy and convenience—they never have to be without or away from their smartphones.