Judge finds Google destroyed evidence and repeatedly lied to the court [pdf]
storage.courtlistener.com
storage.courtlistener.com
> Google left employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation.
All true. I'm just glad I wasn't subpoena'ed.
"Off the record" on a chat was often interpreted as "anything goes" including by people who should have known better. It should not have been, and I definitely heard lawyers say "if it's something you wouldn't want to come out in court, then don't say it via the computer, whether it's on OR off the record."
http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu...
> [The lawyer] Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either.
So it’s pretty narrow.
https://www.oyez.org/cases/2022/21-1397
(SCOTUS ultimately decided to punt the case.)
http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu...
> Later on, when Don Corleone is incapacitated, [the lawyer] Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant.
Here is the DOJ accusing Google of that exactly, a year ago, related to the same case: https://arstechnica.com/tech-policy/2022/03/google-routinely...
https://www.law.cornell.edu/rules/frcp/rule_37 (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(In any case, I'd refuse to answer, since that would be "practicing law without a license.")
But this logic can extend to any form of communication that could technically be recorded. It means that, by extension, all video calls and phone calls should be recorded too if you can afford to do so (but it's cheap, so you can). And that in turn means that the cost of remote work just exploded because many meetings that a non-remote company would have in an office, face to face, should now be recorded and preserved if any of the participants are under a litigation hold. But as the employees testified, at a big company like Google basically in a given discussion at least someone is always under litigation hold. So that means every meeting or phone call may have to be recorded. And that in turn means the discovery cost imposed on companies that allow remote work will be much higher.
Did companies just get a justification for forcing everyone back to the office? It does seem so. Maybe even for reducing the international presence of teams even when they're in the office.
The judge doesn't spell out this small extension of his argument. It seems he was mostly pissed off by Google employees obfuscating about the issue and lying to the court (no excuse for that). But having read it, where's the limit? The aspects of law they're citing talk about "electronically stored information". If not using a technical ability to record is interpreted as the same thing as destroying stored information, then the retention procedures at almost every company are going to be found in non-compliance simply because video calls, phone calls and so on are so often not being recorded.
Similarly, our legal framework around the retention of corporate communications was originally framed around only official (and relatively uncommon) communications like memos being on the record. Then email. Now chat. Soon all meetings and phone calls? Each step here is a major step-change that requires careful consideration!
Telephone conversations, or the conversation in a meeting, are not "expected" to be recorded. Yes, they could be, but they're not, so it doesn't matter. Your logical extensions are kinda irrelevant.
A chat is recorded, on the server. It isn't deleted after people receive it. Google, and lots of companies, interpret "off the record" to mean that it's deleted after a period.
Especially because off the record means there was no 24 hour retention period and the messages were never recorded to begin with. You're mixing up the default behaviour of "history on" (24 hour retention) with "history off" (no retention.
courts never stray "outside the case" but I wish they had said "...and google's long experience saving every scrap of information about everybody on the planet they can find, so weird they would delete this information"
ianal, but i think when a court finds you have deleted evidence, that the information deleted is assumed to be evidence against you. It's not the direct sanction against this behavior that is the worst part, but whatever the case is about going against you.
This is the concept of "adverse inference", and Epic has indeed requested the court instruct the jury of this. However, at this time that hasn't been decided by the court.
They do, regularly, otherwise the entire concept of “obiter dictum” wouldn’t exist.
> ianal, but i think when a court finds you have deleted evidence, that the information deleted is assumed to be evidence against you.
The court can (rough summary of Rule 37 of the Federal Rules of Civil Procedure)
(1) Itself (in a bench trial), or by direction to the jury (in a jury trial), allow that to serve as the basis for adverse inference as you describe, or
(2) Simply direct a finding of fact against the party who does that (bypassing the jury, in a jury trial), or
(3) Strike any claims of the party at fault that the discovery touches on from the case entirely, or
(4) Dismiss the case (if the party is the plaintiff) or render summary judgement against the party (in any case),
(5) Treat the failure as a contempt of court and sanction it that, or
(6) any combination of those (and a few other things) that it thinks is appropriate.
This is why Alex Jones lost his civil actions: he was so intransigent about refusing to produce evidence that the judge determined he was guilty.
This pertains both to the lawsuit from Epic Games as well as from the Department of Justice.
It's a fantastic feature; meaning I am never distracted on a European Monday morning by what someone sent me on an American Friday afternoon. ;)
This disappearing chat messages are a pain in the ass for employees, but they were a pain in the ass for employees too.
Google: Remembering the number and types of pets we think you may own, for decades, but quietly destroying information about ourselves in a process consistent with how that information is classified under our recently updated data retention policy.
"If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it"
The argument revolved around whether transient chats are "stored" or not. The judge says yes for chats, but doesn't mention phone calls. The comments pointed out that there's no reason not to extend the same argument to phone or video calls, or perhaps in an extreme interpretation any communication transiently picked up by a device that could have theoretically recorded it e.g. an IoT smart speaker that listens for commands.
The judgement also says:
The Committee Notes for Subdivision (e) state that the rule embodies the “common-law duty” of “potential litigants . . . to preserve relevant information when litigation is reasonably foreseeable.”
Well that's a problem and a half. So now this obligation to record everything previously considered transient doesn't only trigger once you are actually being sued. It applies even before you are sued, if a judge thinks that the litigation was "reasonably foreseeable" which could mean almost anything.
https://abc.xyz/investor/other/code-of-conduct/
Doesn't seem like the transformation from "don't be evil" hit its intended ethics target.
Crazy, it's an order of magnitude more than I'd guess.
> Lim testified that the thought process that he might need to save something that was said because he was subject to a legal hold simply “doesn’t occur because, as I said, I’m under so many legal holds, it’s impossible to think that way.”
This is also a crazy thing to say. But I guess I misunderstand something here, just before that it says that he did try to save _something_ copying it into docs etc and the problem is that he wasn't saving _everything_.
No sanctions for now.
Also, how does anyone get work done at Google if their chat continually erases itself?
Using chat as a knowledge base is living in a spam swamp.
If you want to have watercooler discussions, make a Session or Signal channel.
You'd hope this is where government and its legislative arm would step in to speak up for the 'citizens' but in fact, government is just the other wing of the same bird.
Well they're wrong. You could sentence the board to serve a stint in jail. Or management. Or even everyone that works there.
Want to talk about lighting a fire under people.
CBA in Australia was fined $700 million and Westpac $1.3 billion for mere tens of thousands of transactions that were in breach. They have spent a lot of time and money fixing their shit since then, unsurprisingly.
Fines that punch through to individuals are another great motivator. Health and safety rules suddenly started getting taken a great deal more seriously in my neck of the woods when managers became personally liable for up to $200,000 for breaches.
For example, the most powerful remedy Epic has asked from the court is "adverse inference", which would mean that the judge tells the jury that instead of judging the case on the basis of evidence presented by both parties, they should consider absence of evidence to be in favor of Epic. This can be quite devastating for your case.
but that would mean nobody can use google anymore cuz they're in jail
Also a lot of that money only gets taxed the second time as capital gains, so while it's taxed twice it's two very discount taxes.
Corporations have to be liable and whoever takes benefits has to take this.
It's too easy to hide behind your corporation/business when your company ends up doing some serious environmental disaster.
Everyone is guilty of something. So is no one guilty of anything?
If everyone is guilty of something then politics and power decide who gets punished.
That's literally why it has the Latin root corp, meaning body, in the name.
Schrödinger's Comment
They very much exist in the legal world, and are accountable for the actions of employees acting under their direction.
According to, you know, those fussy pieces of paper that their owners signed (and presumably read) when they agreed to incorporate.
If google publishes an option to press a button to violate the law to its employees, they are responsible for those that chose to click it.
And, very predictably, of course they didn't. Whether it's because they were careless, unaware, intentionally trying to hide things is another question. Regardless, it was an arrangement that basically guaranteed this sort of problem would happen.