The DOJ Antitrust Division’s new “Comply with Care” task force aims to crack down on “gamesmanship” by companies under investigation. McCarter partner and former DOJ antitrust attorney Robin Crauthers spoke with Corporate Counsel about the steps companies should take to should in response to limit the use of auto-deleting messaging apps and scale back claims of attorney-client privilege. She noted that one concrete step companies can take is ensure that messaging apps do not automatically delete messages as soon as they know they may be under investigation, including employees’ personal devices if they are used for work.
Robin added that she would not advise companies to start preserving messages before there is any investigation. Doing so could produce a large volume of materials that might be in the scope of a subpoena but are not relevant or potentially confusing to investigators. She also noted that companies need to make employees aware that simply copying in-house counsel on an email is not enough to make a communication privileged if it does not contain specific discussions of legal issues. Trying to assert privilege too broadly can draw suspicion from investigators, and possibly even sanctions, she said.
“The line between an email that is seeking legal advice and an email that just has legal on it can sometimes be quite blurry,” Robin said. “There needs to be an education from the outside counsel to in-house counsel on where the line will apply and where it will not.”