Jessica Nall and Josh Malone discuss legal pitfalls, compliance issues, and the digital minefield that arises when employees use ephemeral messaging apps to conduct business in an article published by Bloomberg Law.
Employees are using communication modes other than company e-mail to communicate for business—including texts and ephemeral messaging apps like WhatsApp or Telegram— which creates challenges for companies investigating potential wrongdoing within its ranks and for government investigators conducting parallel or follow-on inquiries.
When business communications occur on platforms that companies do not control, there can sometimes be no way for them or the company or the government to access the information necessary to understand and remediate compliance failures.
And when important pieces of the factual puzzle are missing, investigators may infer that the unavailable messages contained evidence of wrongdoing. Instead of producing key, potentially exculpatory information, the company risks losing out on cooperation credit with the government or discovery sanctions for spoliation.