Regulatory Update

Digital Communication Preservation: Highlights of the DOJ and FTC's Imperative Guidance

by Tiffany Magri

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In a rapidly evolving digital landscape, the Department of Justice (DOJ) and Federal Trade Commission (FTC) have issued updated guidance, emphasizing the critical importance of preserving digital communications. This guidance addresses the growing prevalence of collaboration platforms and ephemeral messaging apps in modern workplaces, which pose challenges for compliance and records management.

The press release specifically calls out the following areas.

Updates to legal process

The DOJ's Antitrust Division and FTC are enhancing language in standard preservation letters and specifications for various legal procedures. This revision acknowledges the increased use of digital teamwork apps, facilitating swift yet temporary communication. Companies are urged to adapt to these changes to meet their obligations during investigations and litigation.

Reinforcing obligations

Longstanding responsibilities for organizations to retain materials during legal proceedings are underscored by these updates. It is essential for companies to understand and comply with these obligations to avoid potential penalties and legal consequences.

Expectations for preservation

Deputy Assistant Attorney General Manish Kumar of the DOJ emphasized the necessity for opposing counsel to preserve and produce all responsive records from ephemeral platforms. Failure to do so may result in obstruction charges, highlighting the gravity of compliance with preservation requirements.

Preservation responsibility

FTC's Bureau of Competition Director Henry Liu reiterated the obligation of companies and individuals to maintain documents amid inquiries and legal cases. This obligation extends to new, ephemeral information-sharing tools, emphasizing the need for proactive measures to ensure compliance.

Challenges with ephemeral communications

Despite falling under DOJ and FTC regulations, some companies have struggled to adequately retain ephemeral records during investigations and lawsuits. The widespread adoption of technologies like Microsoft Teams, Slack, and WhatsApp has exacerbated this challenge, complicating compliance efforts.

Mitigating risk via comprehensive digital records management

To address these challenges and mitigate risk, organizations require robust solutions for comprehensive digital records management. Key components include automated collection mechanisms, secure archiving, oversight features, immutable audit trails, streamlined workflows, and ongoing adaptation to evolving technologies.

Importance of proactive action

Proactive communication policies and oversight are crucial for mitigating downstream risks and demonstrating commitment to ethics and compliance. By taking prompt action to implement reliable preservation measures, companies can reduce organizational risk and promote business productivity.

Where do we go from here?

In an era of rapid digital transformation, compliance with preservation requirements is more critical than ever. The DOJ and FTC's reinforced guidance underscores the importance of proactive measures to preserve digital communications during legal proceedings. By leveraging comprehensive records management solutions, companies can navigate these challenges effectively and demonstrate their commitment to compliance and ethical business practices.

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Tiffany Magri
Smarsh Blog

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