"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.
"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.
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.
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.
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.
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.
How else do you think people and companies get away with doing a lot of bad things.
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.
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.
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.
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
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.
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.
> "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.
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.)
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.
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.
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).
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.
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.
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?
Reading comprehension is an essential skill in litigation and in legal practice in general.
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.)
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.
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.
Basically, you are saying that you can’t have a private conversation under a retention order unless computers aren’t involved.
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.
Because that doesn't sound like an argument anyone would intentionally make.
I've always considered that to mean "assume basic sparks of intelligence", how about you?