Through recent motions filed in district court and a policy memo issued last year, the U.S. Department of Justice (DOJ) has signaled that it has its sights on instant messages and personal devices as potential sources for uncovering anticompetitive or criminal information. Companies should review their personal device and corporate chat preservation policies and ensure they have the ability to preserve such information in the event of a government investigation or civil litigation.
In September 2022, the DOJ announced revisions to its corporate criminal enforcement policies and practices. The changes in policy make clear that the DOJ intends to pursue discovery and preservation abuses in connection with its cases and investigations. These changes will likely have ripple effects on private party litigation.
The DOJ stated that “[c]ompanies seeking credit for cooperation must timely preserve, collect, and disclose relevant documents located both within the United States and overseas.” In connection with that, the DOJ acknowledge that “[t]he ubiquity of personal smartphones, tablets, laptops, and other devices poses significant corporate compliance risks, particularly as to the ability of companies to monitor the use of such devices for misconduct and to recover relevant data from them during a subsequent investigation. The rise in use of third-party messaging platforms, including the use of ephemeral and encrypted messaging applications, poses a similar challenge.” Accordingly, the DOJ expects “all corporations with robust compliance programs [to] have effective policies governing the use of personal devices and third-party messaging platforms for corporate communications, . . . provide clear training to employees about such policies, and . . . enforce such policies when violations are identified.”
This policy applies to every company that could face a DOJ inquiry and is aimed at ameliorating the DOJ’s growing frustration with its inability to obtain relevant texts and instant messages from target subjects.
The DOJ is also taking a tough stance in its active cases on instant message deletion. Last month, the DOJ filed a motion against Google in its case pending in D.C. District Court for sanctions and an evidentiary hearing to determine an appropriate remedy for a policy that enforcers say resulted in Google automatically deleting most employee chats after 24 hours.
The DOJ contends that the auto-deletion policy amounted to an “intentional and repeated destruction” of written materials in violation of the Federal Rules of Civil Procedure and a discovery order entered in the case.
The motion states that Google had the ability to turn off its auto-deletion and to preserve documents for from 30 days to 18 months, but Google failed to do so. Instead, Google left it up to individual employees to take steps to preserve relevant chats beyond the 24-hour auto-deletion period. The motion says that court rules required Google to stop automatically deleting chats in mid-2019, when the company should have reasonably anticipated litigation, and because of Google’s failure, the DOJ is left with a four-year gap in relevant information.
Google has also found itself in hot water over its alleged failure to preserve chats in civil ligation pending in the Northern District of California. In that case, In re: Google Play Store Antitrust Litigation, No. 3:21-md-02981, the judge said he was open to sanctioning Google for failing to preserve employees’ online chats and failing to inform plaintiffs’ counsel that chats were deleted after 55 days unless employees turned their chat history on. Plaintiffs argued that preserved email exchanges showed that executives would switch to chat when they wanted to communicate about highly confidential information.
Reviewing corporate personal device and chat policies in connection with an antitrust compliance program would be prudent given the DOJ’s recent statements and actions targeting this area.