The Federal Trade Commission (FTC) renewed its effort on Thursday to compel Amazon to produce documents regarding the company's communication preservation practices. The FTC challenged Amazon's assertion that its executives never used the encrypted app Signal to discuss business practices pertinent to the ongoing antitrust case, deeming it "unbelievable."

"Amazon asks the court to believe the unbelievable," the FTC stated in a filing supporting its earlier motion to compel discovery of privileged documents. The FTC and state attorneys general allege that Amazon illegally maintained monopolies over the market for "online superstores" used by consumers and the market for online marketplace services used by third-party sellers on its platform.

The plaintiffs claim that Amazon's founder Jeff Bezos and other executives used Signal to destroy evidence during the legal battle. Amazon countered earlier this month, stating there is no evidence its top executives used Signal in such a manner, arguing that their use of the app is legitimate and that the plaintiffs' motion is misleading.

The FTC and attorneys general, however, asserted that Amazon's top executives — "including its ultimate decisionmakers and the architects of the conduct at issue" — indeed used disappearing messages on the app as a "side channel" to discuss business during the regulators' pre-complaint investigation.

"When Amazon eventually imaged select Signal users' phones, it took over 2,900 screenshots showing more than 300 instances where disappearing messages were enabled or the timer setting was changed after Amazon was on notice of plaintiffs' investigation," according to the filing.

The FTC and the states presented two possible explanations for the record before the court: either Amazon's leadership used disappearing messages relevant to the litigation, continued this practice after the investigation began, and failed to preserve the evidence, or senior leadership discussed work-related matters on Signal for over two and a half years without using disappearing messages for anything relevant to the case. The plaintiffs argue that only the former explanation is plausible.

The FTC and states have criticized Amazon policies they claim discourage third-party sellers from offering lower prices on other platforms by penalizing them through degraded search results on Amazon. They also allege that third-party sellers are required to use Amazon's costly logistics services to obtain "prime" eligibility, crucial for success but more expensive than selling on other platforms.

In Thursday's filing, the FTC and states noted there is nothing inherently problematic about using Signal, but a company's choice to use the app does not alter its document preservation obligations during an enforcement action or government investigation. They seek Amazon's preservation notices and instructions to determine whether Amazon adequately and timely instructed its employees to preserve Signal messages, which is relevant to the legal standard for spoliation.

Additionally, both Amazon and the FTC opposed a motion to intervene in the case from the American Booksellers Association (ABA). The FTC and states argue that the ABA's claims, while potentially legitimate, differ from the current enforcement action and could complicate and delay proceedings.

Amazon antitrust investigation showed that the company similarly labeled the ABA's motion to intervene as "procedurally and substantively deficient," asserting that it seeks to introduce new issues and arguments that diverge from the current complaint, causing inconsistent arguments.

In their April motion to compel, the FTC and states said Amazon tightly controls employee communications, requiring detailed six-page memos instead of PowerPoint decks and restricting discussions on sensitive topics, including competition. They highlighted "ample evidence suggesting that spoliation occurred," noting that Amazon's legal team admitted since April 2019, executives, including Bezos, primarily used Signal instead of email for communication.

Amazon Antitrust Investigation Arguments

Amazon in its anti trust investigation trial argued that executives began using Signal as a "secure and informal means of short-form messaging" after Bezos's phone was hacked in 2018 by agents of a foreign government. Amazon maintained that using Signal was an appropriate response to the hacking incident, as secure messaging applications are widely used for their security advantages.

The FTC declined to comment, and Amazon did not immediately respond to a request for comment late Thursday.

The FTC is represented by Susan A. Musser, Edward H. Takashima, Emily K. Bolles, Kara King, and Eric Zepp.

The states are represented by their respective attorneys general.

Amazon is represented by Heidi K. Hubbard and Kevin M. Hodges of Williams & Connolly LLP, Thomas O. Barnett of Covington & Burling LLP, and Molly A. Terwilliger and Patricia A. Eakes of Morgan Lewis & Bockius LLP.

The case is Federal Trade Commission et al. v. Amazon.com Inc., case number 2:23-cv-01495, in the U.S. District Court for the Western District of Washington.