By Jon Brodkin
March 21, 2023
Google defended its use of “history-off chats” for many internal communications, denying the US government’s allegation that it intentionally destroyed evidence needed in an antitrust case. The history-off setting causes messages to be automatically deleted within 24 hours.
The US government and 21 states last month asked a court to sanction Google for allegedly using the auto-delete function on chats to destroy evidence and accused Google of falsely telling the government that it suspended its auto-deletion practices on chats subject to a legal hold. Google opposed the motion for sanctions on Friday in a filing in US District Court for the District of Columbia.
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Google said it uses a “tiered approach” for preserving chats. “When there is litigation, Google instructs employees on legal hold not to use messaging apps like Google Chat to discuss the subjects at issue in the litigation and, if they must, to switch their settings to ‘history on’ for chats regarding the subjects at issue in the litigation, so that any such messages are preserved,” the Google filing said.
US: Google deleted chats by default
Google’s filing came in response to the US arguing that Google should have disabled auto-delete by default instead of “abdicat[ing] its burden to individual custodians to preserve potentially relevant chat.”
“Google consciously failed to preserve relevant evidence. The daily destruction of relevant evidence was inevitable when Google set a company-wide default to delete history-off chat messages every 24 hours, and then elected to maintain that auto-delete setting for custodians subject to a litigation hold,” US Justice Department of Justice antitrust lawyers told the court on February 23.
The US and states’ lawsuit against Google was filed in October 2020 and alleges that Google illegally maintains monopolies in the markets for search and search advertising through anticompetitive and exclusionary practices. The US said Google “had a duty to preserve employee chat messages” starting in 2019 when it became clear that litigation was imminent.
Google: US demanded too much
Google said the government plaintiffs “contend that the Federal Rules specifically mandate that Google should have applied a forced history on setting for all custodians for all chats created while the custodian was on legal hold, regardless of the possible relevance of the message to the litigation.”
But federal rules only require “reasonable steps to preserve” information, Google pointed out. “Google’s vast preservation efforts here—and specifically its methodology with respect to history-off chats—were ‘reasonable steps’ under the Rule,” Google argued.
Google said the US and state attorneys general “have not been denied access to material information needed to prosecute these cases and they have offered no evidence that Google intentionally destroyed such evidence.” Google also argued that the objections came too late, alleging that the government knew before litigation began “that there was a subset of chats not automatically retained.”
“Plaintiffs’ motions are barred at the outset because they were on notice of Google’s approach to chats for years, yet did not object until well after the close of discovery. Those tactics should not be countenanced,” Google told the court.
US: Google falsely claimed it suspended auto-delete
Google said its November 2019 disclosures in an ESI (Electronically Stored Information) questionnaire “show that the distinction between ‘on-the-record’ and other chats was apparent to anyone who wanted to pursue the matter from the outset of DOJ’s investigation. For instance, the ESI Questionnaire response specifies that chat ‘messages are generally retained for a period of 30 days if they have been marked on-the-record, and potentially longer if on-the-record messages are on legal hold.'”
Google also said, “it is no secret how Google’s Chat product operates” because it’s a publicly available product and the Google Chat website explains the history-off feature.
The Justice Department’s motion last month said things happened very differently. “Google systematically destroyed an entire category of written communications every 24 hours” for nearly four years, the government motion said, continuing:
All this time, Google falsely told the United States that Google had “put a legal hold in place” that “suspends auto-deletion.” Indeed, during the United States’ investigation and the discovery phase of this litigation, Google repeatedly misrepresented its document preservation policies, which conveyed the false impression that the company was preserving all custodial chats. Not only did Google unequivocally assert during the investigation that its legal hold suspended auto-deletion, but Google continually failed to disclose—both to the United States and to the Court—its 24-hour auto-deletion policy. Instead, at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications.
The history-off chats are also a subject of dispute in a separate lawsuit filed by Epic Games, which alleged that Google illegally monopolized the market for distribution of mobile apps and mobile app payment processing on Android. Epic filed a motion to sanction Google for alleged spoliation of evidence in October.
* This article was automatically syndicated and expanded from Ars Technica.
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