Google Defends Auto-Deletion of Chats After US Alleged It Destroyed Evidence
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.
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 […].
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