Justice Department says Google destroyed evidence related to antitrust lawsuit

[1]https://www.zachvorhies.com/blacklists/

Privacy for google, other corporations and the government is a one way street. You give it to them. There is no reciprocity. That's it. And that's how it's staying. The end.

This is how tyrants are able to talk the talk (but not the walk) and bark out moral high ground orders to those they rule, while doing whatever degenerate acts they like behind closed doors. That's what power is and does.

If only they have technology that would help them doing such searches...

In the beginning, all instant messages were saved. This was handy because a lot of useful, non-sensitive information was sent over IM.

Then, lawsuits and Discovery happened, and "Off The Record" became the default. You could turn things On The Record if your conversation was non-sensitive.

> You are trying to reduce the amount of content you have to search through

This is Google we're talking about here.

Sounds like corporate welfare to me.

Okay sure, perhaps some serial killers knew they were doing the wrong thing but you don't commit genocide unless you've convinced yourself that you're doing the right thing.

To do evil on a grand scale you must have righteousness and conviction in abundance.

"Don't be evil" at least admits the possibility of asking "Wait. are we the baddies?" and answering it with something other than "Of course not, we Do the Right Thing".

Or on paper, maybe by memo. And they would have destroyed the paper evidence just the same, and claimed helplessness in the face of so much paper that had to be kept, and that the suspicion of their motives amounts to being convicted before trial. Same sort of arguments, except for the people handling paper holding on to data wasn't a matter of getting a few people to click around for a few days, it was wrangling dozens of banker's boxes of paper. Trucks and warehouses.

> It's kind of weird that we've turned formerly ephemeral things into "evidence" just because they could optionally be stored.

This is literally what evidence is. It's something that you carefully collect and store to review later in connection with something else. You don't have to "store" the knife you stabbed somebody with or the gun you shot someone with (you've already got enough use out of them) but if somebody destroys them, they're destroying evidence. Even if you threw it out with the kitchen trash, and you always take out the trash on Thursdays.

They are dogfooding, which is why trying to adopt their products has been a case study in getting screwed.

- GCal spam anyone, who hasn't been coming to unwanted meetings?

- How about 4-5 redundant messaging services?

From the article: "Federal rules for litigation required Google to suspend deleting chats in mid-2019, when Google would have anticipated the antitrust lawsuit, the government said. But Google continued using “off the record chats” even after the lawsuit was filed, the DOJ’s attorneys wrote."

> “Let’s not talk about markets and market share via email.”

> “[W]e should chat live so you can get the history; best to not put in email.”

> “Since it’s a sensitive topic, I prefer to discuss offline or over hangout.”

This is of course not, in fact, some cute way around legal custodial requirements, no matter what the people who passed leetcode preached in trainings.

One assumes that if anyone had asked legal they would have been told they must switch off auto-delete. Lawyers aren't stupid they value their licence far more than their current job. I am highly doubtful there would be any written advice that said anything other than, if in doubt save.

> Google may argue that it relied on individual custodians to manually preserve history-off chats. But that argument should be rejected for two reasons.

> First, it is and was Google’s obligation to suspend auto-deletion policies; it is no defense to suggest that individual custodians—Google employees—owned that obligation. Samsung, 881 F. Supp. 2d at 1137 (“[I]t generally is recognized that when a company or organization has a document retention policy, it is obligated to suspend that policy . . . .”) (cleaned up) (italics added). Google designed the chat systems and document preservation policies at issue here.

> And Google elected to set the default to history off for many chats. Indeed, Google maintained the “off the record” default despite employee complaints that the default caused them to lose important conversations.19

> Second, Google cannot escape sanctions by shifting the blame to its custodians. For spoliation purposes, destruction of evidence by Google’s employees is attributable to the company. See, e.g., E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 803 F. Supp. 2d 469, 506‒07 (E.D. Va. 2011) (“A party may be held responsible for the spoliation of relevant evidence done by its agents.”). Courts commonly sanction corporate litigants for the spoliation of their employees and executives. See, e.g., Borum, 332 F.R.D. at 42 (emails deleted by employee). Accordingly, Google violated its duty to preserve potentially relevant evidence on a daily basis from May 2019 through the present.

(... and the reason Google does Drive Trash is that destroying user data is a much worse user experience than letting the delete be lazy, even when the user has given signal they want the data destroyed. There's decades of UX research to back that assertion; it's why "trash cans" were created in the first place as a UI abstraction.

Internal to Google, if you want to blow your whole leg off and disrupt your career by deleting some critical info, that's on you. Outside Google, they try to provide a better experience for their users).

Also, "turn off history" - which seems to be what this complaint is about - is just a public feature of the Chat app built into gmail.

Would it be reasonable for Google to have anticipated this litigation in 2019 after those events.

It is not just the government, evidence preservations rules attach for any relevant documents at the point where litigation is either initiated, or is, or reasonably should be, anticipated, regardless of whether the government is a party to the regulation. In the specific case of government action, knowledge of existence and subject matter of a government investigation generally provides a basis on which litigation on the subject should be reasonably anticipated (ditto with, e.g., an explicit threat of litigation by a private party. This is well-established law.

'wow, Bob picked the worst possible way to solve xyz' negligence, knowingly having incompetent developers. You yourself said Bob's solutions were the worst possible.

'looking back, we should have implemented XYZ differently but we are stuck with that implementation now' can be about something harmless but blown so out of proportion in court.

Same problem. So, I asked the company IT staff, what is the recommended solution? The answer was "oh, just create a folder on your network drive, and drag-and-drop the .MSG files into there."

This answer was apparently vetted by the same company lawyers that came up with the 2 year retention policy in the first place. I don't have the courage to confirm this, but I really would like to ask them what the point of all this even is.

I’m more surprised it’s put in a “this is wild” light. This is in the same direction as declaring gifts you receive from your clients, or reporting the expenses of these lunches you’re having in a business setting, along who were there and how much you paid for them.

My take on this is, if it’s a business act (a task you did on company time, with company money) it shouldn’t be in a grey “we were just chatting” area and you should be able to report to your company what you did and justify the money spent.

I wouldn’t expect full recordings, but at least enough to explain why there was a meeting in the first place and what was discussed. Now I totally understand the SEC wanting more, but they’re probably doing so to move the window and not actually expecting it goes through.

1) Use Postini

2) Violate an explicit court order by automatically deleting all your incriminating documents.

3) Blame thousands of unaware individual contributors for not each manually blocking << 1% of the illegal deletions, per directions that went straight to their corporate mailing list filter’s trash can.

4) Cite this case as precedent, and demand whatever slap on the wrist Google is about to receive.

1.5) Buy insurance to pay whatever that fine works out to.

5) Continue breaking the law.

6) GOTO 2 when the next subpoena arrives.

In addition, I fondly remember him quibbing that there is no internet in jail. :/

Saying that, I'll leave you in the knowledge that Google Meet is excellent for off the record conversations (and executives are great for ignoring rules set for the rest of the company).

Eric Schmidt is not some misunderstood truth-sayer. He's a crook and a hypocrite and the things he says are received poorly because he's an elitist who's made his $25,000,000,000 fortune punching down.

Do you believe lawyers and judges are unfamiliar with this issue?

Like their entire lives are spent reviewing documents, letters and email. They invented the concept of Disclosure before computers existed, so that Defence can rebut or put proper context to any argument that will be made by prosecution.

If you regularly create records of conversations and phone calls, evidence preservation rules apply to those records as well; you cannot delete them, either.

The fact that no records are usually made in the first place and that the only evidence of the content of such conversations is witness testimony not records means that evidence preservations laws don’t apply (but if you tamper with the witnesses, that is a fairly serious offense.)

Corporate body cams. They wanted it first for fast food register workers but maybe it comes to white collar jobs first (aside from police). It is already sort of there with work from home surveillance-ware.

Because total surveillance has never been goal or precedent.

The legal profession has always understood that people act differently when they speak and when they write.

It is unrealistic to hold people accountable to every mis-spoken word, mistake or dumb thing they have said in spur of the moment. If I ask someone 'how long will X take' and they must answer on the spot, I do not expect an accurate answer.

When you are writing, you have a chance to think through what you are saying. You should also be aware that these words could be read in 1 hour or in 1 day, and they still need to be understood correctly. You could be help accountable for the promises, whether legally, or informally by friends and family.

That's why the law recognizes the superiority of written versus verbal agreements.

Well it would be funny if their counterargument is that "Hangouts" was a specific thing and the OTR chats were actually on one of that company's 600 other chat products.

When you're a "company employee" for at least third of your life you're still human that deserves some privacy away from spying eyes of HR, lawyers and government looking for something you did wrong.

(Is this really so hard to understand? Is that something we from ex-socialist totalitarian regimes really understand?)

Rather, the requirement is not equivalent to a requirement to wear a body camera, but instead to a requirement that if you wear and have actively recording a body camera, you can’t destroy the recording if it is relevant to a subject of reasonably anticipated, or actually in progress, litigation.

There are still interoffice memos in a modern office - they're called emails. But in 1950, if you wanted to just ask a quick question of your colleague Joe, you'd walk over to his office and ask him verbally. Regulators understood that these sorts of interaction happen all the time, are a natural part of business, and didn't try to require that records of these be documented or retained.

Today, if you want to ask a quick question of your colleague Joe (who might be in a different state), you just send him a message on Slack. And the same regulations originally written for interoffice memos in the 1950s require that your Slack messages be retained. The same regulations now cover a much broader range of types of communication and business interactions than they were ever intended to.

This isn't true for remote work.

Not exactly: https://gizmodo.com/google-removes-nearly-all-mentions-of-do...

We have hooks into the fleet of endpoints (corporate with some 10k BYODs), servers, and various vendor apps. This is realized by data legal provides reduced to a boolean per user because there's no need to convey excess detail. When an employee visits Help Desk, they are limited by the possible actions HD can take if they are under a legal hold. The same applies to certain OS upgrades, whether HD or DIY. It would be impossible to manage VDI or "throwaway" servers at scale without a centralized legal hold inquiry API.

Google has (or had) a far greater corporate tech staff / employee ratio in the industry than similar companies, so there's no excuse for them not to have a comprehensive legal hold program throughout their technical organization.

[1]: https://regmedia.co.uk/2022/03/22/memo_in_support-to-sanctio...

[1]: https://en.wikipedia.org/wiki/Special_master#The_Mar-a-Lago_...