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A Bad “Chat-titude” Regarding Discovery Can Lead to Sanctions – Case Law Update

In a recent decision, Google was sanctioned for its failure to suspend the auto-deletion of internal Google Chat messages following the issuance of a litigation hold

May 05, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

In a recent decision from the U.S. District Court for the Northern District of California, Google was sanctioned for its failure to suspend the auto-deletion of internal Google Chat messages following the issuance of a litigation hold, as well as its failure to proactively inform the Court and plaintiffs of its position that the Chats were not subject to the hold.

In order to avoid a similar scenario, our team regularly conducts data mapping exercises to ensure that all data potentially subject to a litigation hold is appropriately considered and handled in a defensible way.

In In re Google Play Store Antitrust Litigation, Case No. 21-md-02981-JD, 2023 WL 2673109 (N.D. Cal. Mar. 28, 2023), Judge James Donato found that Google’s failure to take steps to preserve internal communications on its Chat message system constituted “inten[t] to subvert the discovery process.” Plaintiffs inquired about a lack of Chat messages in Google’s document productions during the discovery phase of the multidistrict litigation. Google waited several months to respond and inform plaintiffs and the Court that Google Chats at the company are set to auto-delete after 24 hours, and that the company made no effort to suspend the auto-deletion even after the litigation had commenced. Google instead relied on individual employees under litigation hold to determine the necessity of preserving their Chats. Plaintiffs filed a Rule 37(e) motion for sanctions.

The court found that sanctions were warranted, based on several factors:

  • Google’s obfuscation over its Chat retention procedures: The Court’s Standing Order for Civil Cases required parties to take “necessary, affirmative steps” to preserve documents related to the case. Google never informed the Court or the plaintiffs of its position that it was not required to preserve Chats at an enterprise level, and “falsely assured” the Court in a case management statement that it had taken appropriate steps to preserve evidence without mentioning the Chats. Google did not reveal its approach to Chats until directly questioned about it by plaintiffs, and then only responded to the question many months later.

  • Google’s intentionality in not preserving Chats: The Court found it clear from the record that individual employees at Google were conscious of the litigation risks inherent in written communications and valued the “off the record” nature of Chats. Google could have preserved Chats at an enterprise level, but made the decision not to do so, a decision which was unsupported by any cost or risk assessments. The approach to Chats was in “sharp contrast” to Google’s approach to preserving emails that may be subject to a litigation hold. The court found that Google effectively adopted a “don’t ask, don’t tell” policy for Chats.

The Court delayed determining a remedy until the close of fact discovery, at which time the plaintiffs will likely be better positioned to inform the Court of what could have been lost due to Google’s failure to appropriately retain Chats. The Court awarded plaintiffs fees and costs for the filing of the Rule 37 motion.

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