by Jeremy Calsyn, Nowell Bamberger, Charles P. Balaan, and Joseph M. Kay
Left to right: Jeremy Calsyn, Nowell Bamberger, Charles P. Balaan, and Joseph M. Kay (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)
In recent months, federal regulators have made statements that companies and their counsel may be subject to criminal prosecution if they fail to preserve ephemeral messaging data when they receive a subpoena or other legal process. In January 2024, the Deputy Assistant Attorney General for Criminal Enforcement at the DOJ Antitrust Division warned “failure to produce” ephemeral messaging may result in obstruction charges.[1] Speaking at the ABA Antitrust Spring Meeting in April 2024, a lawyer for the Antitrust Division echoed that the DOJ “will not hesitate to bring obstruction charges” against company counsel and their clients if clients fail to properly retain so-called “ephemeral messages.”[2] This is consistent with other recent warnings from the DOJ.[3]
The agencies’ focus on features of ephemeral messaging, which they argue can be used to hamper investigations, ignores the fact that ephemeral messaging applications have a legitimate role in the workplace where data security and management is paramount. Despite the advantages of ephemeral messaging, clients should be aware of the legal and other risks presented by these applications and implement clear information retention policies that account for the organization’s duty to preserve information for litigation and government investigations.