The Federal Trade Commission’s Bureau of Competition and the Department of Justice Antitrust Division released a joint statement reiterating document preservation obligations for companies and individuals that are the subject of government investigations and litigations, emphasizing messaging platforms, such as Slack and Google Chats, that automatically delete communications. Both agencies announced updated language in their standard preservation letters, specifications for “second requests” used in pre-merger review under the Hart-Scott-Rodino Act, voluntary access letters, and grand jury subpoenas, to address these instant messaging platforms. The agencies emphasized that companies’ obligation to preserve information on such platforms is nothing new, explaining their clarification is to prevent companies from feigning ignorance if communications are not preserved after preservation obligations are triggered.
Federal Trade Commission’s Bureau of Competition
FTC to Dealmakers: Don’t Interfere with Investigations
By John R. Ingrassia & Colin Kass on
On June 15, 2023, the Federal Trade Commission’s Bureau of Competition issued a statement on the relationship between voluntary interviews with the agency and contractual provisions that require or limit the disclosure of information. The Bureau explains that voluntary interviews are a key aspect of investigations because they “are essential to help [them] understand real-world dynamics and effects,” and “reduce unnecessary burdens on marketplace stakeholders and Bureau staff.” In the statement, the Bureau asserts that certain contractual restrictions impede investigations, and should be considered void.