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.