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Comment by vorpalhex | Hacker News Reader

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.

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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.

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

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.

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?

> 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.

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.

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.

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.

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