On Friday, Jan. 26, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) issued a rare joint announcement aimed to warn of increasing consequences for parties that fail to properly preserve and produce ephemeral messages in response to antitrust investigations (See Press Release, FTC and DOJ Update Guidance That Reinforces Parties' Preservation Obligations for Collaboration Tools and Ephemeral Messaging" (Jan. 26, 2024)). In this announcement, the agencies made clear ephemeral messages would be included in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas. It also warned that failure to preserve and produce these communications could result in criminal obstruction of justice charges.

This announcement is a further escalation of recent pronouncements by DOJ and FTC, including Deputy Attorney General Monaco's Sept. 15, 2022 memo revising the DOJ's Corporate Enforcement Policies (Monaco Memo) (See Lisa O. Monaco, Deputy AG, U.S. Department of Justice, Memorandum on Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (Sept. 15, 2022)). The Monaco Memo updated DOJ's corporate criminal enforcement policies and warned that prosecutors would consider a company's policies regarding "the use of personal devices and third-party messaging platforms," including for ephemeral and encrypted messaging applications, as part of the determination as to whether a company has implemented an effective compliance program.