By Daniel C. Davidson
ABA White Collar Crime Committee Newsletter
July 2024
Earlier this year, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) jointly announced updated language in the agencies’ documents requests (such as preservation letters and grand jury subpoenas) “to address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace.” While the updated language itself may appear unextraordinary on its face, the announcement deserves the attention of all corporate counsel, both in-house and external advisors. That is because DOJ, in making the announcement, raised the specter of criminal obstruction of justice charges if companies fail to preserve and produce ephemeral messages and similar data. In doing so, the government has signaled its intention to significantly raise the stakes in disputes with companies over off-channel communications.
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