Close-up hands typing on keyboard laptop computer with chat box icons

A federal court in California ruled in favor of sanctions against Google last week for failing to preserve records. Google’s document retention policy required individual employees to identify internal chat conversations responsive to a litigation hold. The court found this policy to be in violation of Google’s duty to preserve electronically-stored information under the Federal Rule of Civil Procedure 37(e). The consolidated case arose out of antitrust litigation regarding Google’s “Play Store” Application on Android cell-phones. In re Google Play Store Antitrust Litigation, 21-MD-02981, NDCa.

Google’s data preservation policy

One year after telling the court that it was preserving all evidence for the case at hand, Google came forward to say “that it had not suspended the 24-hour retention policy for history ‘off’ chats.” Google’s standard policy was to delete one-on-one chats after 24 hours unless the chat history was toggled to “on.” In that case, they were retained for 30 days. The court took issue not with the policy, but rather Google’s failure to implement an evidence preservation strategy once the company was notified of the case and it’s delinquency in transparency regarding the chat deletion.

The court was unsympathetic to Google, explaining that the company is a sophisticated litigant with knowledgeable legal counsel and frequent experience in the judicial system. Google trains its employees on document retention. However, chat histories reviewed by the court showed employees requesting to be off-the-record—with chat history off—even when discussing potentially relevant topics. In other instances, employees did not realize that chats should be preserved in situations that legal counsel would have immediately recognized as relevant. Google’s poor practice with respect to its chat history also stood in sharp contrast to its email retention policy that automatically preserved all emails from relevant custodians without requiring any individual action. The issue of the missing chats was expensive, requiring “countless hours reviewing voluminous briefs” and several hearings that included a two-day evidentiary proceeding.

Finding in favor of sanctions, the court withheld determining the sanctions until discovery is completed. Stating that the “case will not be decided on the basis of lost Chat communications,” the court intends to determine later “what might have been lost in the Chat communications,” so that it may craft a remedy proportional and appropriate to that which was lost. In the meantime, the court required Google to cover plaintiffs’ attorneys’ fees and other costs in bringing the motion.

Preserving corporate data

When thinking through a corporate data preservation strategy, there are a few things to keep in mind:

  • When a company is notified of litigation and distributes hold-notices, consider ways to take decisions out of the hands of individual employees and institute an approach that automatically preserves relevant documentation.
  • Companies should take a wide-lens view of where information may be present, including chats, text messages, voice mails and meeting notes. Policies can be drafted with legal counsel in advance so that when litigation hits, the company is prepared to institute holds on relevant information.
  • Companies should be transparent with courts when document retention falls short. In this case, the company assured the court that evidence was preserved and only admitted a year later that chats were lost. Being forthright can help a company avoid looking like it intentionally destroyed evidence and the costly ramifications that follow.

For questions regarding document retention, please contact Molly Crabtree, Chad Mowery or Katja Garvey, or any member of Porter Wright’s E-Discovery or Privacy & Data Security practice groups.