It should be no surprise that companies and individuals who knowingly possess documents and information that may be relevant to an antitrust investigation must maintain that information in accordance with federal law and the Commission's rules. The responsibility to preserve documents exists in all types of media.
As workplaces have evolved, so have the means by which workers communicate and collaborate. In many of today's businesses, paper documents and emails have been replaced by programs such as Slack, Microsoft Teams, Signal, and Google Chats. While these applications represent new ways for companies to collaborate, they remain company documents subject to the same preservation obligations that have always applied during government investigations and enforcement actions.
Specifically, many of these applications and programs allow, and sometimes automatically enable, the destruction of communications and documents, sometimes referred to as ephemeral messaging. While documents created using these applications are and always have been covered by retention letters, second applications, voluntary access letters and mandatory Commission legal processes, companies have sometimes failed to meet their document retention obligations for these communication methods.
The Department of Justice's Competition Bureau and Antitrust Division have reviewed and revised the language we use in preservation letters, second applications, voluntary access letters and mandatory legal processes to expressly state what has always been the case: that the Documents created using collaboration tools and messaging applications are included in those requests.
He revised language makes it very clear that both ephemeral and non-ephemeral communications through messaging applications are documents. Companies that enable or provide applications with ephemeral messaging capabilities must continue to retain all relevant documents during government investigations and enforcement actions. Appropriate measures to preserve relevant documents include turning off automatic deletion and may even include stopping the use of certain applications altogether. The changes also recognize that newer messaging apps may involve employee-owned devices to a greater extent than previous communication methods and provide guidance on which employee-owned devices are within the scope of the Commission's investigations. .
When companies do not preserve documents, regardless of the tools used to create them, they may be breaking the law and subject to penalties. Recent court decisions have found that companies that did not preserve text messages, Google chats and Signal messages had stolen evidence. Destruction of documents, even through the use of ephemeral messaging applications, may result in civil enforcement actions or a referral to criminal prosecutors through the British Columbia Criminal Liaison Unit. However, the best outcome for everyone is for companies to take appropriate steps to preserve documents in the first place, including those created in collaborative work environments and messaging applications.
The Competition Bureau's mission is to protect the public and competition, and the discovery of relevant documents during an investigation or enforcement action is critical to upholding that responsibility. The negligent or intentional destruction of documents through collaborative work environments and messaging applications frustrates this mission and, by extension, the public good. The Competition Bureau's joint effort with the Department of Justice's Antitrust Division to improve businesses' understanding of their document preservation obligations promotes efficient and effective investigations that ultimately protect consumers, workers and the competence.
