TransPerfect Legal recently hosted its fifth annual Antitrust Clearance and Merger Enforcement Conference (ACME). One standout panel, "Data in the Modern Age: Chats, Modern Comments & Attachments, and Generative Artificial Intelligence (GenAI)," explored the evolving challenges of data management in antitrust investigations. The discussion featured insights from CJ Mahoney, Counsel and Global Head of eDiscovery & Litigation Technology at Cleary Gottlieb; Meredith Mommers, Counsel at Freshfields Bruckhaus Deringer; and Robert Keeling, Partner at Sidley Austin LLP. Together, they shared strategies for navigating the complexities of modern communication platforms in the context of regulatory scrutiny.

Understanding Current Regulatory Requirements for Message Preservation

The Department of Justice (DOJ) and Federal Trade Commission (FTC) have updated their standard preservation letters to address collaboration tools and ephemeral messaging platforms. These directives state that failure to produce documents from ephemeral messaging applications could result in obstruction of justice charges, underscoring the importance of compliance. Both agencies emphasize this issue, with consistent messaging across their case teams.

Key requirements include:

• Production of all responsive documents from collaboration platforms
• Preservation of ephemeral messaging data, including platforms like Signal and Slack
• Documentation of business communication tools used across the organization
• Inclusion of messaging platform questions in custodial interviews

These updates signal a significant shift in regulatory expectations, urging organizations to ensure robust compliance strategies.

Implementing Effective Mobile Device Management Strategies

Modern antitrust investigations regularly include 40 to 50 custodians, making mobile devices an integral component of the scope. Legal teams have developed efficient mobile device management protocols to address this complexity. Integrating device setting verifications directly into custodial interviews has proven particularly effective, allowing teams to identify retention setting issues early—particularly on iPhones, where settings often default to shorter retention periods.

Legal teams now conduct live verification during initial interviews, turning a potential challenge into a proactive compliance step. This approach:

• Prevents data loss from incorrect settings
• Creates clear documentation of compliance efforts
• Builds trust with custodians through transparent processes
• Reduces collection complications later in the investigation

Overcoming Modern Data Collection and Review Obstacles

The collection process for modern communication platforms presents significant technical and cost challenges. For example, collecting data from Signal requires more time and resources than traditional email collection workflows. Smaller collections often rely on screenshots for preservation, while larger collections demand a more systematic approach.

One effective strategy involves organizing text messages into 24-hour increments for review. This method balances the need to preserve business communications while addressing privacy concerns tied to personal content that often appears within these time blocks.

Leveraging Artificial Intelligence Technology for Enhanced Review Efficiency

The rise of generative artificial intelligence (GenAI) offers a promising solution to some of the challenges in data review. Recent testing of GenAI on control sets during second requests reveals that supervised learning techniques consistently outperform prompt-based methods.

In privilege log creation, GenAI also demonstrates performance that rivals or exceeds traditional contract attorney reviews. Its strength lies in filtering key documents identified through initial search terms, offering significant cost savings and efficiency gains in targeted workflows.

Preparing for Future Regulatory Requirements

The relationship between modern communication platforms and antitrust compliance continues to evolve at a rapid pace. The DOJ and FTC maintain consistent positions regarding communication preservation requirements. As regulatory scrutiny increases, legal teams must adopt more sophisticated tools and processes to meet these growing demands.

Executing Your Communication Data Management Plan

To successfully navigate the complexities of antitrust investigations, legal teams must implement specific, proven practices. Based on the panel’s direct experience with second requests and regulatory investigations, six critical actions can drive successful outcomes:

1. Conducting early custodian interviews to understand communication platforms in use.
2. Implementing clear preservation protocols for all relevant data sources.
3. Documenting collection methodologies meticulously.
4. Maintaining an open dialogue with regulators throughout the investigation.
5. Leveraging GenAI for specific tasks, such as privilege logging.
6. Checking cross-custodian communications to verify collection completeness.

Success hinges on documented procedures and regular verification of compliance steps. Teams must balance thorough data collection with privacy considerations, ensuring they meet regulatory requirements without overstepping boundaries.

Final Thoughts

Modern communication platforms present unique challenges that require legal teams to remain agile, well-informed, and proactive. As technology continues to advance and regulatory expectations evolve, embracing innovative strategies—such as live device verifications and AI-powered reviews—becomes essential for maintaining compliance. By implementing robust processes and fostering transparency, legal teams can confidently address the complexities of antitrust investigations while building trust with regulators and custodians.