Through recent motions filed in federal court and a policy memo issued last year, the U.S. Department of Justice (DOJ) has signaled that it has set its sights on instant messages and personal devices as potential sources for uncovering anticompetitive or criminal information. Therefore, companies would be wise to 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 antitrust litigation, and to obtain a clear understanding of how their employees are really using or abusing these services to communicate for business purposes.

In September 2022, the DOJ issued a memo announcing revisions to its corporate criminal enforcement policies and practices. The memo advises prosecutors who are evaluating a corporation’s compliance program “to consider whether the corporation has implemented effective policies and procedures governing the use of personal devices and third-party messaging platforms to ensure that business-related electronic data and communications are preserved.” This change in policy is aimed at ameliorating a perceived growing frustration over the DOJ’s inability to obtain relevant texts and instant messages from target subjects because those communications have not been preserved in the ordinary course of business.

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