> Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds. Indeed, they did so even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation. As the examples below make clear, Google destroyed innumerable Chats with the intent to deprive Plaintiffs and other litigants of the use of these documents in litigation
Note: that's the argument the plaintiff's lawyers are making, not the final word on the matter
EDIT: And the court in this case took a dim view of it as well: https://storage.courtlistener.com/recap/gov.uscourts.cand.37...
> At the heart of this dispute is a simple question: did Google do the right thing with respect to preserving Chat communications in this case? There is no doubt that Google was perfectly free to set up an internal IM service with any retention period of its choosing for employees to use for whatever purposes they liked. The overall propriety of Chat is not in issue here. What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties it was abundantly familiar with from countless prior cases. The record establishes that Google fell strikingly short on that score. Several aspects of Google’s conduct are troubling. As Rule 37 indicates, the duty to preserve relevant evidence is an unqualified obligation in all cases. The Court’s Standing Order for Civil Cases expressly spells out the expectation that “as soon as any party reasonably anticipates or knows of litigation, it will take the necessary, affirmative steps to preserve evidence related to the issues presented by the action, including, without limitation, interdiction of any document destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.” Google clearly had different intentions with respect to Chat, but it did not reveal those intentions with candor or directness to the Court or counsel for plaintiffs. Instead, Google falsely assured the Court in a case management statement in October 2020 that it had “taken appropriate steps to preserve all evidence relevant to the issues reasonably evident in this action,” without saying a word about Chats or its decision not to pause the 24-hour default deletion.
TBD whether using OTR exclusively (like having in-person real time meetings) for all chats would violate this. I guessing no, it's the choice to use OTR selectively by participants that causes problems.
They don’t have to perform additional recordings and minutes. But they exist, they can’t destroy it.
You have an obligation to proactively figure that out yourself. There is then oversight by the court.
> If we're going to play language games
Judges don't play that sort of language games
> turning the chat history off doesn't really destroy anything
What Google called off the record chats were 24 hour history chats. So the history was deleted after 24 hours, when it should have been preserved.
Ah, I missed that part, that's a very compelling argument. I disagree these are not language games though. The way the chat application was kept from preserving history is an implementation detail that doesn't reflect the action the user of the chat performed in the UI.
It sounds like the truth is whatever a human judge can be convinced into deciding is true.
I mean, that’s literally the judges job. It’s why they are called a judge. They make a judgement as to where the truth lies, and where the law lies (except for issues that are delegated to a jury, in which case the jury is responsible for determining the factual record).
But, yes, judges make judgements and a lot of the “well, technically” semantic games that people play will be met with an annoyed scowl and a negative opinion (but, critically not all semantic games; there are some semantic differences that are of critical importance to a judge)
If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...
An analogous real-world situation would be a meeting in a room where someone uses the whiteboard to draw some diagrams and erases it at the end. If we apply the same logic, you would be under obligation to take pictures of the whiteboard and send them to the court? Or even that you should record the whole meeting? Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.
Well that’s kind of the whole thing with discovery - the court is asking the company to disclose relevant information (some of which will be against the company). Companies here have different disclosure requirements to an ordinary individual.
And if new evidence is being created, that new evidence would be subject to the same data request.
> I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded.
Most corporate messaging apps have built in functionality to handle litigation holds. This is a requirement for legal compliance, so the company would have to train and brief employees on their legal responsibilities to not destroy evidence during the litigation.
See: https://learn.microsoft.com/en-us/microsoft-365/compliance/e... or https://slack.com/intl/en-gb/help/articles/4401830811795-Cre... or https://support.google.com/vault/answer/7657594?hl=en
Which conversations are subject to legal hold would be discussed in court.
Are you literally appointed by the Pope? Part of the process of canonisation?
The company must educate its employees because the company has obligations. A limited-liability corporation is a legal fiction granted extraordinary protections by a society. That corporation had damned well better be a good citizen of that society. If that means erring on the side of caution? Good.
Maybe? The line is more blurry here, but there are probably cases where it's more or less easy to make the distinction.
If data is recorded on a permanent medium, it can be arbitrarily retrieved, an explicit delete operation is needed to get rid of it, and this deletion can be scheduled to happen at an arbitrary time - that might easily be understood as "destroying evidence".
If you want asynchronous communication, you will need to produce records of some kind, which can be evidence. That's nothing new.
Maybe if you have a system where the information must be exchanged live and falls off a cliff immediately no matter if it was observed or not, say, like a video conferencing tool - I wonder how the courts see that. It gets much closer to an interesting edge case than something with a 24-hour retention policy.
That's not permanent.
If this would be detrimental to your case, perhaps stop doing shady shit.
That such cases can exist doesn't mean it's not clear-cut here.
In the vast majority of cases, two engineers will agree on the question "is this data persisted or ephemeral" and the fact that the line is blurry doesn't mean we can't know when it's been crossed.
Also, if you destroy evidence that may be under litigation hold, the judge will instruct the jury to infer that what you deleted was harmful to your case.
You are expected to act in good faith as an executive or legal officer of a publicly-traded company.
If messages are being deleted 1 day after being sent, despite being subject to a litigation hold, that’s… going to often make judges mad.
The courts do, through precedent.
Presumably this does not apply to audio-visual real time communication as you're not transmitting entire messages but fragments in real time that don't convey any information by themselves. Sending back and forth recorded audio messages OTOH would presumably produce potential evidence. Sending each letter as it is typed presumably would not.
That said, usually these things are ruled based on the spirit of the law as much as the letter of the law so trying to game this by working around technicalities would likely be considered ... bad.
Not a lawyer, but I have helped implement record management systems, and a requirement is always support for legal holds.
If the reg affairs or legal people were told "oh, yeah, we're deleting all these company records even if they have holds" they'd have strokes. Or quit. Or both.
This is not true anymore. The judge in the case determined that the DOJ was right.
because i'm in agreement with the grandparent comment that why is the topic subject to legal holds vs just having a meeting in person? Are in person meetings rquired to have a voice recorder present? it seems like a weird legal precedent.
In the court's eyes, it's analogous to writing notes to each other, only to burn them the next day.
The way this is worded there's no record, so there's no "slated for deletion"?
I guess the question becomes, if it exists inside computer memory, is that legally equivalent to "writing down piece of paper" and thusly is considered destroying evidence?
If I write something in disappearing ink (let's say it perfectly disappears), it's not destroying evidence? is it?
For argument's sake, let's say it's not. It's a tunneled connection and all stops in between are only acting as relays.
Is it still wiping it then if it only exists in memory and then gets garbage collected? is that destroying evidence?... maybe...?
It sounds like you are looking for the laws “that requires google to hold the data for this particular topic.”
However, these are not people that can merely speculate; they live at the bottom of the rabbit hole.
Imagine you work for a company that has records about you with enough depth and granularity to have already calculated (with fp64 precision) everything you will ever do and contribute in your life (i.e. is your actual future cost/benefit ratio, not an estimated value, favorable enough to allow you to continue exist).
Would you NOT make at least some sort of effort to stop "the algorithm" from consuming you? Would you just keep feeding "the algorithm" pieces of yourself until it eats enough of your being that it becomes you?
It seems they've decided to save themselves by not saving their chats. I'm not a lawyer or anything, yet I'm getting a vibe like this kind of stuff prolly looks "kinda legally bad." Law things like this happen because there simply isn't time to waste worried about looking "kinda legally bad." It's natural to prioritize taking care of higher magnitude existential threats like getting processed by "the algorithm."
They let you change collection settings and delete your data.
It’s a lot better than most companies do.
It gets a bit tricky privacy-wise if you cannot do same online. Though Google is probably the last company deserving any privacy.
According to [1], "The DOJ maintains Google should have suspended its auto-delete practices by 2019, when it was clear litigation was coming."
I found more details in [2] on the legal topic of evidence spoliation that might be interesting, though I'm not a lawyer and don't know what which law(s) are relevant in this case.
> And couldn't this just be circumvented by having an in-person meeting?
Yes, but there's presumably a difference between deleting evidence vs. not having it in the first place.
[1] https://gizmodo.com/google-employee-chats-deleted-evidence-j...
[2] https://www.americanbar.org/content/dam/aba-cms-dotorg/produ...
In the article it seems Google's "history off" feature isn't really history-off so much as it simply auto-deletes after 24h. If the chats were never logged, would they have avoided this?
Also how far does the law go regarding deletion - I mean if a message was stored in memory and then released/garbage collected does that still count as "deleting evidence"? Because if so, then virtually any means of electronic communication might be counted as "deleting evidence". For example a voip call audio buffer that gets deleted.
(Just thinking out loud, not that I would ever want to circumvent the law)
The key word is "reasonable", which is what the court must decide happened here. OTOH deliberately enabling "history off" doesn't sound like a reasonable steps to preserve records under legal hold. Having said that, I wonder if it also means voip/video calls must be recorded, especially if the feature is available in whatever app they use. Further, even if they use a purpose built "off the record" app, deliberately choosing to use such an app could be argued as failure to reasonably preserve records, if a regular history-preserving app is available. So I think the answer to my first question could be a no.
Hmm, so what if the chat said “let’s continue this discussion in the conference room”?
Mail, messages, chat, ticketing systems…phone calls are definitely an outlier in my world. Even face to face is rare.
I don’t know about that. Not producing evidence and destroying evidence are very different actions, even though the intent (of not leaving evidence) is similar.
In the US, moving conversations from a recorded to an unrecorded medium would likely be covered under the 5th. Having conversations on a recorded medium then destroying the record, not so much.
There’s a general obligation to preserve records pertaining to the subject of actual ot reasonably anticipated litigation, and chats are records.
here I present you a case for the perils of remote work
The problem with Google Chat in this context is that even history-off Chats are kept for at least 24 hours before being destroyed (I’ve sometimes seen longer due to caching), so a record is created and then destroyed. That isn’t allowed when an obligation to preserve the record exists.
I admit I don’t know whether something like un-logged IRC would be allowed, but at the very least, any IRC clients that do log the history even for the purpose of displaying it locally after a crash and restart would themselves create a discoverable record subject to any applicable preservation obligation.
If you mean that remote workers are more likely to use Google Chat for sensitive information topics than in-person workers, yes, that could be an example of a peril of remote work. But, from the perspective of society rather than the company, making it harder for companies to hide misbehavior is actually an advantage of remote work.
Disclosure: I have worked for Google in the past, but not for more than 8 years now, and I have no inside knowledge of or connection to anything discussed in the submitted PDF.
This logic gets absurd when you push it to the limits. For instance, any sort of VOIP call would imply deletion, since the voice packets have to be buffered in memory for it to be decoded and played back. At least with respect to copyright law, the interpretation is reasonable. For instance, intermediary routers that copy packets as they pass through do not commit copyright infringement. pictures/videos that get cached on your device also doesn't count as copyright infringement.
Judges won’t push the logic to its limits. They’ll look for a reasonable line, and give an annoyed look to people who go off on a technical “well actually VOIP packets are briefly in memory and then deleted, so it’s the same thing”.
Judges recognize that arguments that are reasonable and logical in some domains aren’t perfectly generalizable to all cases. They’ll just (if it’s relevant to the case) make a ruling on whether transistory packets count as recording, and create a litigation hold (they’d almost certainly decide it doesn’t) and move on with their lives.
In the USA there is practically no recourse users have if SAAS/PAAS simply decides to keep this data and not tell you about it. Google won't be investigated or punished, and you'll never get anyone on the phone to yell at about it. Taking them to court is like throwing money into a well. The truth is, if they decide to do it in secret you'd probably never even find out about it.
Google is large enough to design its own hardware/firmware. They could probably implement this without many of their own internal teams being aware of it.
- Eliot Spitzer to CNN Money, an updated version of a much older saying by Martin Lomasney
Where would you draw the line?
Telling another human to deliver a verbal message only within the next 24 hours is okay. Training a parrot to do it is okay. Programming a robot to do the same is okay? Programming a computer to do that is not?
Is it okay if it's a one hour delay? Four hours? Until it detects that the user has read it? Until the user manually marks it as read (does that count as explicit deletion)? If it's stored in RAM? On an HDD? On an SSD in swap? On ticker tape?
And couldn't this just be circumvented by having an in-person meeting?