Most companies have policies requiring the preservation and storage of work-related communications to comply with various legal requirements, to produce to management for various purposes and to respond to regulators if needs be. Implementation of these policies has proven complicated with the use of personal devices and the advent of new technologies that go beyond typical email and texting, especially messaging apps such as WhatsApp, Facebook Messenger, Signal and Telegram.

The U.S. Department of Justice (DOJ) has raised concerns about companies that fail to properly preserve business-related communications. These include communications on personal devices, encrypted messages and "ephemeral" messages – messages designed to go poof.

DOJ recently issued guidance on the topic. Personal devices raise "corporate compliance risks, particularly as to the ability of companies to monitor the use of such devices for misconduct and to recover relevant data from them during a subsequent investigation." The same goes for "third-party messaging platforms, including the use of ephemeral and encrypted messaging applications." When prosecutors evaluate a corporation's compliance program, they "should 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."

Increasing Complications

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