Michael, formerly chief compliance officer for 21st Century Fox, said people in his prior role were already getting C-suite resistance about what’s feasible before the DOJ formalized its policy. A DOJ policy announced March 3 directed prosecutors to levy steeper penalties against firms under investigation that are unable to preserve workers’ business-related messages.Ĭompanies are struggling to determine if the benefits of obtaining such information, which is often buried in unmonitored devices or gets deleted by disappearing software, are worth the delicate, expensive effort. Michael, a Los Angeles-based partner in Morrison Foerster’s investigations and white collar defense practice.Ĭlear solutions remain elusive. “To the extent this was a hot topic, it’s going to be even hotter,” said Brian R. The enforcement push follows a wave of civil settlements on Wall Street over bankers’ inaccessible messages. The intensifying dilemma for companies is fueled by recently stepped up Justice Department pressure in white collar investigations to produce encrypted chats on apps like Signal and WhatsApp. Corporate compliance chiefs and general counsel are bombarding outside attorneys with questions about how to design a policy to retain employee messaging on encrypted software, white-collar lawyers say.

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