*This article was first published in CPI Antitrust Chronicle and is available to view here.

The increasing use of ephemeral messaging and unofficial communication platforms in the modern workplace presents significant challenges for antitrust investigations. With the rise of remote work arrangements, employees are often turning to unofficial communications platforms for business-related discussions. In doing so, the lines between personal and professional communication are becoming increasingly blurred. This practice complicates legal discovery due to end-to-end encryption and security features, making it difficult for companies to retain crucial data and comply with regulatory requirements. Regulators globally are intensifying their scrutiny of such communication, imposing hefty fines for data preservation failures. To address these issues, a forensic approach is essential for unearthing evidence, even from deleted messages. Generative AI and large-language models are revolutionizing this process but, while they offer a host of benefits, careful oversight is required to guard against risks such as data hallucinations. Companies must update policies, enhance employee training, and leverage forensic expertise and AI tools to ensure compliance and mitigate legal risks in this evolving landscape.

I.    INTRODUCTION

“This message will self-destruct” is no longer just a Hollywood tagline, but an employee communication trend with serious legal implications for the modern workplace.

The rise in remote or hybrid work arrangements and digitization since the pandemic has led to an explosion in new technologies and platforms for sharing information privately, coupled with a blurring of boundaries between professional and personal communication channels.

Besides official channels such as Slack and Microsoft Teams, users are turning to a number of chat apps such as WhatsApp and secure IM platforms such as Signal and Telegram, either out of convenience, expectations of a rapid response or increased awareness of data privacy. The use of off-channel platforms and ephemeral messaging – where communication “disappears” a short time after viewing – is thus gaining traction both in personal and professional domains.

From a legal discovery perspective, data shared on platforms that offer end-to-end encryption or auto-deletion options complicates matters as users can share information without leaving a lasting digital trail. This poses significant challenges around regulatory compliance, data retention and internal investigations.

Globally, there is an increase in antitrust probes that typically involve workplace communication. For instance, there are more cartel investigations looking into price fixing, agreements to divide or share the market among industry rivals or companies entering non-compete clauses for staff hiring. As workplaces embrace remote or hybrid work arrangements and communication is exchanged freely across multiple platforms, antitrust investigations are increasingly encompassing not just official communication channels but also personal and off-channel ones.

Courts are scrutinizing the use of disappearing messages for evidence of bad faith, where intentional deletion of communication may imply concealment.

Addressing the increased use of collaboration tools and ephemeral messaging platforms in the workplace, the U.S. Federal Trade Commission and the Department of Justice announced updated language in 2024 to “reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.”¹ Where the FTC has deemed that companies have failed to preserve documents covered by its investigation, it has moved for civil spoilation sanctions.

Regulators in Europe and the U.K. are also taking a tough stance on deletion of messages that they believe were vital to legal discovery. In 2024, the European Commission fined a food ingredient and health corporation millions of euros over employees deleting messages containing business-related information exchanged with a competitor on a chat platform.

In this article, we will look at the key challenges to legal discovery from the rise in ephemeral messaging and use of unofficial communication channels, apps and platforms that organizations must ensure awareness of. We will also explore the use of forensic analysis in unearthing evidence and preparing for regulatory questioning, the role of artificial intelligence in aiding such analysis and steps that companies can take to ensure compliance in antitrust matters.

II.    MORE OF EVERYTHING = MORE CHALLENGES

For companies trying to stay on top of antitrust compliance requirements, a number of interlinked factors are contributing to the complications arising from ephemeral and off-channel communication.

1. Exponential surge in overall data usage: The amount of data created, consumed and stored has skyrocketed in recent years, driven by increased digitization in every aspect of life - from retail to banking. Additionally, increased usage of social media apps and the growing adoption of artificial intelligence tools such as ChatGPT are also contributing to heavy data volumes. By 2028, the volume of data created globally is estimated to exceed 394 zettabytes, according to Statista².
2. Broadening of employee sets for compliance training: More and more employee subgroups must now be mindful of antitrust law than before. For example, historically, sales representatives may have been the focus of regulatory scrutiny for potential data leakage investigations, given their access to sensitive information and outward-facing roles (a common point of vulnerability was sharing sensitive information with friends in other firms). Now, awareness of legal ramifications must extend to groups such as HR teams for non-compete investigations.
3. More investigations, different regulators: Multinational companies must ensure that compliance around ephemeral messaging meets not just the requirements of the regulator for the country of their headquarters, but across multiple jurisdictions, each with their own legal and cultural nuances. Among major western markets, prominent investigations have been conducted by the FTC and the DOJ in the U.S., the Competition and Markets Authority in the U.K. and the European Commission in the Europe.
4. Growing number of apps: Lastly, a broad array of chat apps and features also means more risk to companies. Even if companies have strict policies in place regarding official communication channels, in reality, these policies are hard to police. In our experience helping companies comply with antitrust investigations, non-work approved communication channels tend to fall within the scope of investigation as soon as the regulator sees evidence that they are being used for official communication by employees.

Here is a non-exhaustive list of popular chat apps that offer some form of end-to-end encryption or ephemeral messaging features to its users:

• Snapchat
• Signal
• Telegram
• WhatsApp
• WeChat
• Confide
• Threema
• Zangi
• Briar
• Session
• Wire

III.    THE NEED FOR A FORENSIC APPROACH

The range of platforms and the potential for investigation by multiple authorities mean that companies need more dedicated resources to manage the risk.

Dawn raids, for instance, are becoming more frequent in Europe. From around 60 investigations in 2018 and 2019, there were about 76 raids annually on average between 2021 and 2024 in the EU, Switzerland and the U.K.³

In a typical dawn raid, forensic staff at the antitrust regulator will seek access to everything in the IT domain data discovery, limiting what they take through search terms or employee subgroups. While the IT domain used to be limited to desktop computers and office servers, that is no longer the case. Devices such as laptops, tablets and smartphones are also subject to investigation, as is data stored in the cloud. Regulators can have legal grounds to analyze an employee’s chat messages on personal devices if they have evidence that individuals are using non-work channels to share official data or information.

In this context, unearthing evidence and preparing for regulatory questioning call for the involvement of forensic experts, who can handle and review these data sources thoroughly. Even with auto deletion features, it is possible for forensic specialists to find traces of messages residing on devices.

Another key aspect of forensic data analysis is that work communication is no longer restricted to textual content in physical formats or emails. It may call for reviewing data across multiple formats, ranging from hard copy and long emails to very short textual content, images and voice notes. In a complex investigation requiring extensive document disclosure, the number of items could run into millions.

The advent of GenAI has brought enormous advantages to forensic analysis, enabling large-scale analysis in a compressed time-frame.

By deploying prompt engineering that combines AI expertise with the legal team’s knowledge, multiple iterations of prompts and a hybrid review approach that ensures quality checking of the results against the senior legal team’s input, a greater degree of accuracy can be achieved in a shorter timespan across large data volumes.

IV.    GenAI vs. TRADITIONAL TECH

As illustrated above, GenAI can help streamline processes that traditional tech may struggle with.

When it comes to ephemeral messaging and unofficial platforms, the data available often calls for extrapolation, or for understanding implications or nuance beyond what is being said explicitly. For example, an emoji response cannot be analyzed in isolation or excluded entirely. It must be placed within the context of the overall conversation.

Here, large-language models (“LLMs”), which tools like ChatGPT are based on, offer a more fluid, intuitive way to understand content. In the hands of experienced forensic investigators, their ability to “read” documents much like a human does— and to summarize, contextualize, and interpret— is game-changing.

LLM-driven tools bring three standout benefits to eDiscovery:

• Faster than Technology Assisted Review (“TAR”): While traditional TAR workflows require time-consuming rounds of training and validation, LLMs can begin generating useful results almost immediately. For large-scale matters, this speed translates directly into cost savings, both in reviewer time and in broader litigation spend.
• More transparent: One of the long-standing criticisms of TAR has been the “black box” nature of its results – TAR tells you it thinks a document is relevant because it is “similar” to other relevant documents, but nothing more. LLMs can improve this dramatically. Many platforms now include “chain of thought” features, offering a clear explanation of how the model reached a particular conclusion. This transparency is especially valuable when defending decisions around privilege or relevance.
• Easier to implement: Unlike TAR, which required carefully curated training sets and dedicated workflows, LLMs can be deployed in more flexible, user-friendly ways. They do not demand a team of data scientists or specialised project managers. Instead, they can slot into existing review platforms and processes with minimal disruption.

While LLMs offer a host of benefits around language understanding, pattern recognition and domain flexibility (a single model can be used across multiple use cases), it is also important to be aware of their flaws. LLM-driven results can be subject to data hallucinations (plausible but inaccurate text), consistently getting the same answers regardless of varied prompts, opacity of logic and risks of data leakage. Accounting for these and ensuring sufficient human oversight and quality checks can minimize the potential for erroneous results.

V.    CONCLUSION

The use of ephemeral messaging by employees, especially on personal or unauthorized devices, can hinder a company’s ability to defend itself from lawsuits, ensure compliance in government investigations or conduct internal audits.

Regulatory scrutiny of ephemeral messaging platforms has intensified in recent years across multiple jurisdictions, from the U.S. to Europe and the U.K. In several instances, companies have faced hefty fines and sanctions, not to mention reputational damage, if authorities are unconvinced that sufficient measures were taken for preservation of data and communication trails.

As chat platforms and hybrid work arrangements continue to evolve and interpersonal communication at the workplace spills over from official to unofficial or personal channels, there is a greater need for a forensic approach to ensure compliance. Companies must take necessary action to stay ahead of regulatory and technological developments, including updating protocols, aligning communication strategy with the overall business and investing in employee training.

The advent of GenAI and LLM-enhanced tools has brought huge benefits to legal discovery, aiding in forensic data analysis and recovery. In the hands of the right expert, LLM-driven tools can speed up the process by several orders of magnitude, enhance accuracy and allow for customization of a single tool for multiple purposes.

By implementing usage controls, investing in employee training and developing clear policies about approved channels, organizations can ensure compliance and strike the right balance between risk mitigation and effective workplace communication.

1. https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-doj-update-guidance-reinforces-parties-preservation-obligations-collaboration-tools-ephemeral 

2. https://www.statista.com/statistics/871513/worldwide-data-created/ 

3. https://www.whitecase.com/insight-our-thinking/dawn-raid-analysis-quarterly