Antitrust Division’s Warning to Companies and Counsel
In recent months, the Antitrust Division of the U.S. Department of Justice has been issuing stern warnings to companies and executives regarding the preservation of ephemeral messaging and messages sent using collaboration tools.
This warning goes beyond recent Criminal Division policy by threatening to prosecute defense counsel and in-house counsel for obstruction of justice if relevant material called for by a grand jury subpoena is deleted.
High-level officials from the DOJ Antitrust Division have been emphasizing the importance of preserving and producing all responsive documents, including data from ephemeral messaging applications.
Manish Kumar, deputy assistant attorney general for criminal enforcement at the DOJ Antitrust Division, has made it clear that failure to produce such documents may result in obstruction of justice charges.
Leslie Wulff, chief of the San Francisco office of the DOJ Antitrust Division, has stressed the significant consequences of missteps in preserving communications, highlighting the potential criminal exposure for both employees and counsel.
Jillian Rogowski, counsel to the assistant attorney general of the DOJ Antitrust Division, has reiterated the Division’s commitment to bringing obstruction charges against those involved in deleting relevant material.
Importance of Document Retention
The Antitrust Division’s focus on prosecuting attorneys for obstruction of justice raises questions about the motivation behind these warnings. While securing critical evidence is crucial for their cases, the Division’s recent statements seem to go beyond mere frustration with the lack of preserved communications.
Despite the DOJ’s confidence in obtaining information from other sources, the threat of investigating and prosecuting defense or in-house counsel remains. This approach raises concerns about potential chilling effects on cooperation and trust between prosecutors and the defense bar.
While the Antitrust Division has taken steps to increase engagement with the defense bar, the recent warnings about prosecuting counsel may undermine these efforts and erode trust between the parties.
Ultimately, the use of the crime fraud exception as a prosecutorial tool should be reserved for egregious cases, and less drastic options should be considered to address concerns about document retention.
