COMPANIES CAN NO LONGER AFFORD TO SLACK OFF IN PRESERVING CHATS AND MESSAGES

In their excellent article under the above rubric, US attorneys Troutman Pepper, wrote as follows:

“Doubling down on guidance originally issued in September 2022, the U.S. Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) recently announced updates to standard preservation letters and grand jury subpoenas regarding the preservation of collaborative messaging platforms, to respond to the increased use of such platforms in the workplace. The updates require companies under investigation to expressly preserve communications and chats exchanged on these messaging platforms, including Slack, Microsoft Teams, and Signal. While companies under investigation have always had a legal obligation to preserve documents while under investigation or involved in litigation, the explosion of collaborative and remote working in the COVID and post-COVID era has created preservation challenges for companies conducting business across these platforms, as we discussed here. Now that collaborative messaging has become a routine feature of modern business, companies must update and adapt their preservation policies, or face potential civil and criminal liability for failing to properly preserve messages.

When announcing the updates, Deputy Assistant Attorney General Manish Kumar of the Antitrust Division said, "These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages." Kumar continued, "The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges." Likewise, the FTC has successfully moved for civil spoilation sanctions when a company failed to preserve documents, including Signal messages, covered by an FTC investigation.”

Why is what is being legislated in the USA important to us in South Africa?? The reason is that when interpreting the Bill of Rights contained in South Africa’s Constitution, a Court, Tribunal or Forum must, inter alia, consider international law.

In South Africa there are several Statutes, which set out the time periods for which documents must be retained.? Examples of such Acts are the Companies Act 2008, the Tax Administration Act 2011, the Basic Conditions of Employment Act 1997, the Consumer Protection Act 2008, and the Protection of Personal Information Act 2013.?

In addition, many organisations have their own internal retention of records policies and certain professional bodies have their own requirements regarding time periods for which members must retain records.?

When litigation is pending, or reasonably anticipated, it is recommended that documents should be retained whether or not they assist a party in the litigation.?

In my respectful opinion, documents that should be retained will include the documents described by Deputy Assistant Attorney General Manish Kumar, as set out above, notwithstanding the definition or meaning attributed to “documents” and/or “records”.? I say this because we live in a digital world and there is always the possibility that a wider definition will be given to those words as a result thereof.

In the instance of document retention, I disagree with Alvin Toffler and feel that it is better err on the side of caution rather than the side of daring.