4 June 2023
In the well-publicized case In re Google Play Store Antitrust Litigation (N.D. Cal. March 28, 2023) California District Judge James Donato ruled for sanctions against Google for Google Chat spoliation. There are plenty of ediscovery lessons to take away from this case, particularly given that Google is, in the judge’s words, “a frequent and sophisticated litigation party.” So how did something as fundamental as data spoliation come about?
According to Doug Austin at Ediscovery Today, “The MDL action involves multiple antitrust cases challenging Google’s Play Store practices as anti-competitive. Even before the MDL was instituted, the Court directed the parties to coordinate discovery with an eye toward containing costs and burdens. However, In April 2021, plaintiffs asked Google about a curious lack of Chat messages in its document productions. In October 2021, Google said that Google Chats are typically deleted after 24 hours and that Google had not suspended this auto-deletion even after this litigation began. Google chose instead to let employees make their own personal choices about preserving chats.”
Even Uncommon Data Sources Need To Be Preserved
In two recent industry polls conducted by Hanzo, Microsoft Teams is the clear front-runner in enterprise collaboration tools, with Google Chat not even registering as its own category. However, one of the polls shows 49% of respondents saying they use applications besides Slack and Teams or a combination of applications. This should come as no surprise since SaaS collaboration platforms continue to proliferate in the enterprise space (e.g. Jira, Confluence, Asana, etc.). Just because they may not be widely used or widely collected during litigation does not mean they won’t be important to a case.
In this case, Google Chat was an essential tool for the company, and custodians testified to its daily use by Google employees. The takeaway here is that if you use a tool every day, even if it’s not one of the more common tools, you should have a preservation and collection process in place for that data source should litigation arise.Retention Policies Set at 24 Hours is Not Best Practice
In this case, different types of Chats had different default retention periods. Under Google’s standard retention policy, one-on-one Google Chats with history off were retained for 24 hours only.
Having different default retention periods seems like a complicated process to keep track of for in-house legal and IT during litigation, but on top of that, having the default retention period set at 24 hours seems to fall outside of best practice.
In fact, in several recent cases involving the SEC and the FTC, the use of ephemeral messaging, where messages are immediately deleted, has led to large fines and court sanctions. Retention policies set for 24 hours are only fractionally better, and in a practical sense, might as well be ephemeral.
And this isn’t simply a Google-only practice. In one of Hanzo’s recent polls, 11% of respondents said their retention policies were set for 24hrs. Don’t Leave Preservation Up To Individual Custodians
According to the judge’s ruling, 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.
The record also demonstrated that Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat preservation instructions, and sometimes disregarded the instructions altogether.
This is where preserve-in-place (PIP) technology could help avoid inconsistencies in preservation. PIP is where data is automatically preserved at its point of origin, so even if a custodian deletes or turns off preservation measures from their workstation, the data is still available for collection.
However, the use of PIP isn’t widespread, with our polls showing only 11-20% of respondents utilizing it. Part of this is due to limitations with the technology but a large part may still have to do with a lack of clear preservation processes, even among more mature legal teams.
ESI Protocol Checklist for Collaboration Data
One of the best ways to avoid litigation woes when it comes to collaboration data is to create and follow ESI Protocols for your legal department and IT.
Some questions that might need to be addressed as part of an ESI protocol include:
- What relevant communications exist?
- What channels will be searched?
- How will a search for responsive communications be conducted?
- What format will be used for collecting /processing/reviewing?
- How will links, pointers, and other “modern attachments” be dealt with?
- What will the production of chats look like, and what format will be used?
- How will non-responsive or privileged material be removed?
- What will be the format for the privilege log?