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Comment by revelio | Hacker News Reader

You seem to be assuming Google will lose. Seems more likely that they will win and the article author is wrong when he says

"From the outside it appears very, very difficult to imagine that Google will get away with what it's done."

There is no law compelling you to write down every word, thought or discussion that takes place in the office. Google was subject to litigation holds. That means you can't destroy evidence if it might be relevant, it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? The author's inability to imagine Google's lawyers successfully making this argument reflects poorly on their imaginative skills, not Google.

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You seem to be arguing against something no one has suggested. No one has suggested they have to document every conversation or thought. However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed. So the rule is "do not destroy records you have create" not "record everything."

Exactly, which is why this headline is misleading and the complaint will probably fail. It says:

"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"

So what? That isn't deleting chat records, it's opting not to create them in the first place. Unless there was some unusually specific court order telling them they were mandated to generate new evidence specifically to convenience the plaintiffs, or the judges decide to create new obligations via case law, Google will simply point out that they aren't under any obligation to forcibly record every employee conversation about a topic from the moment a lawsuit is filed that might involve that topic. Their obligation only extends to letting plaintiffs do discovery over whatever documentary evidence was already created.

I think you misunderstand how the law works here, and how a judge will view Pichai's actions.

The mere fact of having a text-based chat is itself a written record. Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge.

If they wanted to be truly off the record, they should have met in person or made a phone call.

If you are under a retention order, yes, you can get in trouble.

Epic has some reasonable arguments there when i read it. I thought actually some of this was already resolved in Epic's favor, and some in Google's, and they were only trying to figure out sanctions or something. It's a complex case (well set of cases, really) so i don't remember all of the state. I think it's that their is one in DC where they are trying to decide on the motion, and one in California where they are trying to decide on the penalty.

The DOJ's argument, meanwhile, or at least part of it, was not about retention but about reasonable anticipation of litigation and coverage.

They basically were arguing (again, in part), that since they started investigation in 2019, Google should have saved all chats from all employees since then.

That particular argument seems unlikely to fly. A more targeted argument might stand a better chance, but when they argue crazy things, it doesn't help convince a judge that the rest of your argument has merit.

These sorts of arguments always get thrown around anyway. In litigation this large, everyone claims everyone should have disclosed something more, or saved something, or ...

Sometimes they win, sometimes they lose.

That doesn't mean if someone did something wrong they shouldn't get sanctioned, but like I said, it's not uncommon.

It actually used to be worse. Before some rule changes about 2 decades ago, people used to end up spending more time arguing about sanctioning each other than the actual case took, and trying to get money for it.

It's more reasonable now, but yeah.

> The mere fact of having a text-based chat is itself a written record.

But it doesn't mean it was a "recorded" record, in the same way that having a conversation over the phone necessarily means it was recorded. Sure, in both cases there is "a recording" because the communication needs to be recorded in order to send it. But there's not a "recording" in the sense that it was saved somewhere to be available later.

In what way is an unrecorded text conversation different than in unrecorded voice conversation?

There's no such thing as an "unrecorded" text conversation, since it has to persist for some time on some media for longer than an ephemeral period in order for its intended recipients to receive the communication. The same is not true for voice or video.

No, the same is true. There are various buffers holding voice and video frames that are stored, and then erased/overwritten many times over the course of the conversation.

> for longer than an ephemeral period

Reading comprehension is an essential skill in litigation and in legal practice in general.

Wait, because it goes through a computer it has to be retained? Then why wouldn’t that apply to voice as well as text, so all phone conversations (which definitely go through computers these days) have to be retained as well? Or is text some sort of sacred thing that has to be recorded and stored forever, while voice and video calls are somehow exempt from that requirement? Where does American law point out special status for text and not for other signals?

The law hasn't completely caught up with technology here, but in general, "records" refer to written documents since that's how businesses have traditionally communicated when it comes to decisionmaking. In the eyes of many judges, text chat is viewed as merely a less formal, more spontaneous, and append-only version of writings, and therefore records. Also, for chat to work, it has to persist beyond when it was written for some amount of time so that people can see it.

Voice and video, on the other hand, don't share that property: once said or viewed, you either heard the message, or you didn't. It is not ordinarily recorded or stored for any length of time. Of course, if a court ordered you to create voice or video recordings of video or audioconferences, you might be forced to comply. (I'm not sure what the law is here, but in a civil case, if the opposing party paid for the storage, the court might be more inclined to issue such an order, as long as it's not unduly burdensome.)

> Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge.

> "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"

Nah, I think that's too far. There are simply too many legitimate reasons for Google to turn history off. What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? You can only prove they had a sensitive conversation they wanted no record of, but you can't prove that that sensitive conversation is under the "legal hold" they were in. Even if all the context of the on-record chat seem to imply a crucial bit is coming up, you can't really prove the crucial bit did come up. It's all based on speculation.

> If they wanted to be truly off the record, they should have met in person or made a phone call.

So... `spichai: let's take this to an ephemeral chat` will be viewed negatively but `spichai: let's discuss this in person` is completely normal? I'm not buying it.

> What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery?

That's a matter for a court, or a court-appointed expert, to decide. You don't get to opt-out of discovery procedures by intuiting that the other party simply wouldn't be interested in what you have to say.

(This raises all kinds of legitimate corporate IP concerns, which the courts have extensive experience handling.)

But in this case, an "irrelevant topic" can range from something exclusively Google's business (like details of a new product) to something uber-mundane or even personal.

So, really, unless the legal hold on Google is a blanket, encompassing order to preserve all internal comms, I find it difficult to be objectively certain they are at fault here.

I think you're extending this too far, beyond the facts available: it sounds like a few companies have identified a specific policy within Google, one that seems to exist primarily to render discovery impossible.

They're not asking a court to impose onerous or abnormal preservation mechanisms, as evidenced by no other company of Google's size or scope deleting all messages every 24 hours.

Caveat: I did not read the embedded pdfs but I did read the article, and nothing there even alludes to anything like a retention policy.

Even the wording of the accusation does not even imply a policy:

> 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

Routinely opted is not a policy. A policy is formal, not an option you routinely take.

I'll wager even the best lawyers will be hard-pressed to prove this routine is primarily to render discovery impossible. In fact, on face value alone it will be hard to objectively prove any purpose to this, unless more info/evidence/data/witnesses come up.

The text that follows my quote

> 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.

makes assumptions that you can only speculate on, not prove. Sure, they were discussing topics covered by the litigation and then pivoted to private chat within nine seconds. Does it follow that the part of the conversation they moved off-record (and hence we are not privy to) is also definitely covered by litigation and could affect the outcome of the trial? Not necessarily (although likely, alas courts don't settle for likely).

We are not talking about an ordinary situation. We’re talking about a situation where Google has been placed under a retention order because of a lawsuit.

This is not gonna work out well for Google at all because this kind of BS really pisses judges off and also looks really bad to juries if it makes it that far.

That's nonsense. Even if the system does not explicitly create something called a "record" by the developers of the app, the conversation is in a written form and stored somewhere (the server's RAM, or whatever). That's a record, however brief it is. If you destroy it, you've just destroyed a record. It's as simple as that.

How is that different from a VOIP call? The communication of the call is transformed into digital data. Are all VOIP calls considered recorded, and the fact that you didn't actually use the "save the recording" feature means that you broke law (if you're under a order not to destroy recordings)?

The order is about written records.

And the argument seems to be that, if you have a series of 1s and 0s on disk or in memory at some point (because the information was transferred from one computer to another), then it counts as a written record. I'm trying to understand exactly what the difference is. Not in an "I'm trying to pedantic my way around the rule", but in a "these two things are the same; data representing communication between two or more people" way.

> then it counts as a written record

Nope. Just like a drawing made by depositing graphite on paper isn't drawing, even though writing letters by depositing graphite on paper is.

> Not in an "I'm trying to pedantic my way around the rule", but in a "these two things are the same; data representing communication between two or more people" way.

I don't see the difference.

I wonder: if a meeting is held over Zoom (or whatever), and one participant turns on automatic captioning, does the resulting text that exists in their computer's memory constitute a "written record" that legally must be preserved?

Yes, automatic captioning is a problem.

As long as the law deals with written records specially compared to voice calls, even automatic captioning is "written records".

I've seen companies disable automatic captioning for this reason.

For that matter, why not the video itself?

Like phone calls, UDP packets carrying voice and video, those are all records also. A chat message packet seems to somehow be more special than a video or audio frame. That’s a bit weird to me.

Basically, you are saying that you can’t have a private conversation under a retention order unless computers aren’t involved.

The order is about written records.

The reason why we have a human court system is that Judges don't have to be naive readers. The justice system doesn't do the:

"Oh darn! You got me in a technicality! Not recording isn't the same as deleting!"

Instead the judge is going to ask if it was obvious the information was required to be preserved and if it was, then why Google did not preserve it.

"Ah but there was nothing to preserve because..." is not a clever retort, it's a fast track to a contempt charge.

If you are under a hold, you are under a hold.

Justice systems routinely let people off on a technicality and this is far from being a technicality. Think through what you're proposing here - that the moment someone files a lawsuit against you (on any topic of their choosing regardless of how broad) you can no longer talk about that topic in person with anyone, but instead must do all conversations in recorded media? That's not a minor change to the law, creating a new obligation here would fundamentally alter the nature of all corporate communication in America and mandate vast new compliance infrastructures.

When people get "let off on a technicality", that usually means that some kind of legal process was not followed correctly by the prosecution that invalidates their case.

It does not mean that someone disregarding the spirit of the law can do whatever they want. I don't think this is completely open-and-shut, but a judge could absolutely hold someone in contempt for something like disabling chat logging when under a legal retention hold, especially if the normal state of things is that chat logging is turned on.

This thread is a mess because it hits on one of the fundamental ideological divisions between left and right. The left much prefers the idea of wise justices who do whatever they feel yields the "fairest" outcome in any given situation, with written law being more like suggestions than rules. The right prefers the idea of a neutral judicial branch that simply applies the law as written, even if it appears to yield suboptimal outcomes in any given case.

For better or worse the USA implements the right wing view. There isn't any such thing as "spirit of the law", there's only law, and judges are relatively restrained when it comes to the creative invention of new law by (mis)reading existing law.

In some parts of the world that isn't the case. The EU is notorious for writing ultra-vague laws and then allowing the ECJ to "discover" interpretations nobody had even suggested might exist at all, even if it radically reshapes society overnight. Note that FOSS Patents is written by a German guy so his expectations are calibrated based on the more left wing European courts. But this case is being held in the USA, so it seems reasonable to expect that not to happen here and for the law to be applied as is conventionally understood.

Regardless of whether you like this or not, it's clearly untrue that it's "very difficult to imagine that Google will get away with what it's done" - that is hyperbole. Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.

> For better or worse the USA implements the right wing view. There isn't any such thing as "spirit of the law", there's only law, and judges are relatively restrained when it comes to the creative invention of new law by (mis)reading existing law.

This is simply materially wrong. Like it's not even close. It's literally contra the basic language of law.

> This thread is a mess because it hits on one of the fundamental ideological divisions between left and right.

While there is a value split traditionally nobody has some weird legal positivist view of the law where we can only take things super literally.

> Google's behavior was guided by lawyers who were implementing the standard understanding of litigation holds.

I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold. The lawyer response here would have probably been to group this under a priviledged meeting.

>> While there is a value split traditionally nobody has some weird legal positivist view of the law where we can only take things super literally.

No? I thought that was one of the primary legal divisions within the Supreme Court? The textualists vs the "living constitution" people?

>> I promise you no Google lawyer instructed their CEO to tell someone to move to off the record chat while under a hold

I promise you they did, because that feature was added specifically due to complaints by lawyers about chats being retained! And as you say, try talking to a lawyer over email and you'll get one answer: "let's take this to a phone call". Lawyers love moving conversations to non-recorded media.

The Federal Rules of Evidence define a "writing" as consist[ing] of letters, words, numbers, or their equivalent set down in any form. The litigation hold most likely defined the writings that should be retained similarly. "Any form" is purposefully chosen in the definition to capture as much as possible. Typically such terms are defined broadly under the reasoning that the court wants to preserve most evidence for trial. The parties can make arguments later as to whether a document is privileged or not.

It's not about talking, it's about written records. When you're under a legal hold, you better not delete written records.

Are there bright lines about when you have to take explicit steps to record a conversation, if you're under a hold? For instance, I assume you usually don't have to record a verbal conversation? If that's the case, what's the practical difference between that and a conversation over a text-based system which defaults to not recording you? Just your presumed intent to abuse the system to work around the hold?

Uh, the deliberate choice to move from a text-based conversation that records history, to a text-based conversation that doesn’t record history seems like about as bright a line as you could cross.

I was assuming that choice was made before the hold order.

It was not.

Oh, wow. Thanks for the clarification.

I believe it’s that the courts order is along the lines of “all written communications, notes, documents, [etc.] pertaining to the matter [xxx] at hand must be preserved.” In this case, chat communications would fall under that order, and therefore steps need to be taken to ensure their preservation…

But how can you say the conversation that happened off-record does pertain to the matter at hand? How can you preserve something that was not created in the first place?

I am under a hold for all written records. A co-conspirator contacts me via email and I reply the following: "Please meet me under the sletchy bridge at 2am. Alone. Make sure nobody follows you. Don't wear a wire."

Am I under a legal requirement to record in person meetings? No. Am I obviously attempting to avoid the hold? Yes.

Guess what the legal charge is for attempting to avoid preserving records?

You have not discovered some clever loophole.

Your analogy uses loaded terms (co-conspirator) and makes use of biased character portrayals (alone by a sketchy bridge at 2AM, don't wear a wire).

Even in this case, unless the court issued an order that forbids physical meet-up/contact between the accused, I don't see anything the court can hold against them. Meeting at a bridge at 2AM is not a crime, and doesn't mean they are avoiding anything other than other people.

like the poster you are responding to, I can obviously see something the court can hold against them, so it seems maybe your inability to see it is more a reflection of you than the situation

perhaps it bears repeating that judges aren't robots and can see someone obviously trying to evade an order and impose sanctions accordingly

oh, the topic totally changed once you moved to a history free chat? got any proof? no? that's too bad, seems the judge'll have to assume the most likely scenario in their judgement

What if they have a video conference with you and hold up a piece of paper with written text on it. Do you now need to have recorded your meeting?

That depends, are you doing this for the purpose of obviously attempting to get around a court order?

If so, then that would be illegal to do what you are suggesting.

Judges to not take kindly to 'clever' programmer loopholes. If you do that, you are just going to go to jail.

You’re missing the point - by typing the conversation, it is a written conversation, which must be preserved if it is relevant. So to the extent you have a written conversation and don’t preserve it, you are violating the order. In other words, there is no way to have a WRITTEN off the record conversation

Ah, I see. Thanks.

> text-based system which defaults to not recording

I believe the default is to record, though, no? Presumably disabling recording in that case could be seen as an attempt to circumvent a legal retention hold.

When I was a corporate lawyer, I knew IP litigators who would workshop documents with clients in a transitory medium so there would be nothing to preserve. It was not seen as being inappropriate, just savvy.

When under a legal hold? And wouldn't it be privileged?

What. That's exactly how court works?

How else do you think people and companies get away with doing a lot of bad things.

This is a deliberate choice to create written records and not have them retained when under a legal hold. Good luck avoiding sanctions from the judge.

There would be one heck of a ADA case if what you say is true. As long as you can only communicate in text and not voice or sign, you have no right to privacy.

* if you're under a retention order for precisely the records you appear to be trying to conceal

> However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed

There's no fundamental physical law proving this.

There's no reason messaging shouldn't be considered ephemeral by default, and that recording a history of past messages is an optional extra.

Programmatically what would you need to do? Not add the code that commits the message history to storage, and add a read on expiry feature.

This tends to be how I configure all my online conversations if I have the option, obviously where I'm not intentionally posting in public with no delete option.

This is a legal topic, and therefore the reason text messaging should not be considered ephemeral by default is that it has not been considered so. Fundamental physics or programming requirements have nothing to do with it.

Do you mean to imply legal precedents are never overturned?

Because that doesn't sound like an argument anyone would intentionally make.

> Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize. Assume good faith.

I've always considered that to mean "assume basic sparks of intelligence", how about you?

The plaintiff is arguing that GOOG is guilty of intentional spoliation of evidence, and that execs deliberately moving conversations to ephemeral channels demonstrates mens rea; if the judge agrees, they can instruct the jury (or trier of fact) that any missing evidence should be construed through the lens of “adverse inference” — in other words, assume that the missing evidence is, in fact, prejudicial to the defense’s case. This is … not something you want in a litigation, needless to say.

So, yeah, you can delete evidence that you know could be relevant to any future litigation, it’s just that if a judge finds out about it you’re going to get hit hard over it.

Why are you referring to the company using its ticker symbol? Do you specifically want to make a difference between classes of stock? I don't see how that's relevant.

> it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work?

We're talking about Google. This is exactly what they do. It works very well too.

Google suddenly finding in itself the will to forget information about people after lawsuits started coming? One would have to be naive to believe it's not deliberate destruction of evidence. If Google gets away with this, it only reflects poorly on the "justice" system which actually believed such shenanigans.

I don't make such assumptions and have no understanding of what's right or wrong legally. I speak as a xoogler who hated Chat (featurewise) + retention policy and found it to exacerbate Google's sluggishness in shipping.

Why do you think Google is more likely to prevail? Why do you think your opinion is more informed than that of an experienced legal analyst? What are your bona fides?

At any rate, if a court says you have to retain copies of communications, that includes chat communications; and if you have a retention policy that would ordinarily expire them, you're then required to disable expiry if the communications are subject to the order until the order has been rescinded. That's the law, and you ignore it at your peril.

> How would that even work?

Hypothetically speaking, it could require at least retaining and backing up the text of every chat and e-mail produced.

For a FANG company, a year of chats or emails should trivially fit on a consumer-grade hard-drive. This isn't a technically difficult problem.

No, that doesn't capture every bit of communication in a company, but it's a very low bar that the government ought to require.

It also raises the difficulty bar for hiding bad behaviour. If keeping bad behaviour off the record requires in-person meetings, and synchronous phone calls, it makes the people engaging in it dramatically less efficient.

I was taking the referenced chat conversation in the post to have occurred after the legal hold was put in place. It seems far more devious to explicitly avoid records in places that would otherwise have records when a court has already said "you need to have records". I'm not a lawyer and don't know the context that well, though, so this may be incorrect understanding on my part.

Whether it seems devious or not to you, has no bearing on whether it's legal. The court does not say "you need to create records on this topic going forward". It says "you need to retain records you already created on this topic".

One thing that may confuse people is that some industries like finance are subject to regulations that force them to create records of employee conversations even if normally they wouldn't and even if there's no pending lawsuit. But those are industry specific rules governing specific activities like trading, not a general legal concept that'd have applied to Google.

The records existed for 24 hours and were then deleted.

And yet, it's legal to make a phone call and discuss these matters for hours. Lawyers talk on the phone all the time, for exactly this reason.

You could require transcripts and recordings of all conversations, just in case something pertains to litigation. But this is an obviously bad move from privacy, ethical, and efficiency view points.

The question is whether we want to allow written media which have equal footing / similar properties to phone calls.

The point the parent seems to make is that Google makes communication a hassle within the company with this policy. It would seem that a lot of "this is how you do that thing" information would be lost etc.

It seems to be nearly at the point of "To avoid being held responsible for what we do, we make it a point to not actually know what we're doing"...

Since it's the US government suing them, I'm pretty sure this case will be decided in part by public opinion.

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