Andreas Mueller is COO of Downstreem, a digital forensics company. Views are the author’s own.
Google is embroiled in lawsuits that charge the company with anti-competitive practices in the way it makes apps available on its Play Store.
As part of that, it faces potential adverse inferences and discovery sanctions amounting to millions of dollars by the U.S. District Court for the Northern District of California for violating Federal Rule of Procedure 37(e), which requires safeguarding internal chat messages pertinent to the litigation.
The backstory is crucial to understanding the charges.
When the litigation was initiated, Google sent a litigation hold notice to relevant employees.
As part of the notice, employees were instructed to avoid discussing information related to the litigation on Google's internal messaging service. If relevant information was discussed, employees were to save the conversation.
However, Google entrusted the decision to save or not save to the employees and didn’t deactivate the 24-hour auto-delete function.
This approach resulted in the permanent deletion of thousands of messages containing potentially relevant information. Employees either misidentified messages or didn’t comply with the hold notice.
By taking this approach, Google fell short of its duty to preserve evidence, according to the court.
Furthermore, the court questioned Google's honesty; not only had the company assured the court of its commitment to preserving relevant evidence, it delayed disclosing its failure to preserve the messages.
The court was concerned with the company’s inconsistency, too, since it diligently preserved emails.
As a result, the judge ordered Google to cover the plaintiffs' reasonable attorneys' fees and costs incurred in bringing the Rule 37 motion.
The requested amount by plaintiffs is more than $3 million, although the court has yet to approve this sum. Google could also face non-monetary sanctions such as an adverse inference that the deleted messages contained unfavorable information.
Messaging app prevalence
The ubiquity of mobile devices has made instant messaging a fundamental part of daily communication, especially in the workplace. Some 75% of professionals use their phones for work in the U.S., according to one analysis.
One result of this is that IM applications like WhatsApp, WeChat and Facebook Messenger play a significant role in legal proceedings.
In the United Kingdom, for instance, WhatsApp has provided pivotal evidence in a variety of cases. One example is an employment dispute in which an employee's claim for unjust dismissal was dismissed after evidence surfaced of a WhatsApp group he created to harass a fellow employee.
In China, the use of messaging apps as evidence in legal cases has been formally accepted and regulated. For instance, WeChat, China’s most popular messaging app, has been recognized as a valid source of evidence in court cases. This was highlighted in a labor dispute where a judge confirmed a company's underpayment of an employee based on bank statements and a WeChat conversation.
These cases demonstrate the importance of maintaining systematic records of employee login details, notarizing chat exchanges and providing additional supporting evidence.
The ephemeral nature of some messages and the lack of central servers on which conversations can be downloaded and preserved creates challenges. This issue can lead to compliance risks and create barriers for internal investigations and litigation.
The ruling against Google underscores the importance of proper preservation of such communications and the need for companies to review their data management policies critically.
In its ruling, the court emphasized that Google, with its capability to deal with complex litigation scenarios with the help of expert legal counsel, should have upheld the standards of data retention.
In the penalty that it imposed, the court sent a reminder to companies of the significance of preserving data not only for legal compliance but also for safeguarding their integrity and maintaining public trust.
Businesses must understand their duty to preserve relevant evidence, especially in cases of antitrust litigation. The court's decision underscores that adopting a “don't ask, don't tell” policy on recordkeeping can lead to sanctions if it impinges on preservation duties.
Furthermore, the ruling shows the importance of proper documentation and preservation of employee communications. Google's failure to preserve these messages to the extent it should have has led to additional legal costs and potential sanctions.
Four data preservation steps
Despite the importance of document preservation, many organizations suffer from two common failures: 1) the lack of a preservation plan, which leads to data loss and the neglect of legal holds, among other things, and 2) the inability to organize data with systems that can prevent spoliation claims by enabling prompt collection of relevant documents.
Using the following steps and regular reviews and education, companies can address these failures and take proactive measures.
Step 1: Set a document retention policy: Implement a comprehensive policy that outlines the retention periods for different document types and guidelines for safe disposal.
For example, companies set email retention policies, which define how long email messages should be retained before permanent deletion.
The policy should consider government regulations, industry requirements, and best practices. It should specify different retention periods based on criteria such as email type, sender, recipient, and department.
In developing your organization’s preservation plan, collaborate with legal experts to ensure compliance and seek guidance on preservation strategies. Organizations must align preservation strategies with eDiscovery requirements to respond effectively to legal requests and avoid potential sanctions.
Step 2: Identify relevant documents: Organizations can then quickly identify and collect relevant documents by first understanding the scope of the matter.
They can then determine key custodians, and use search and retrieval techniques such as keyword search or concept search based on the topic to find the documents.
Step 3: Securely store and organize documents: After documents are collected, it’s critical to use secure storage solutions to ensure data integrity, accessibility, and longevity. Organizing documents logically and consistently also enhances the retrieval and review processes.
Document management systems: Cloud-based DMS platforms provide centralized storage, version control, and access control for documents, making them ideal for preserving and managing large volumes of data.
Metadata preservation tools: Metadata, such as creation dates, author information, and document history, can play a crucial role in establishing the authenticity and context of documents. Metadata preservation tools can help ensure this valuable information is retained during preservation.
Data backup solutions: Regular backups are essential for safeguarding documents against data loss or corruption. Cloud-based backup solutions offer convenient and secure options for preserving data offsite.
Data encryption tools: Encryption adds an extra layer of security to preserved documents, protecting them from unauthorized access or tampering. Encryption tools help ensure that preserved data remains confidential and intact.
Step 4: Implement legal holds: When litigation or regulatory investigation is anticipated, legal holds prevent the destruction of potentially relevant information. Issue and effectively communicate legal holds to all relevant employees to ensure compliance and avoid spoliation claims.
As litigation or regulatory matters evolve, preservation needs may change making it essential to periodically reassess the preservation plan, identify new custodians or data sources, and adjust preservation efforts accordingly. Regular reviews guarantee that relevant information is always protected and readily available.
Organizations should also keep employees updated on evolving preservation requirements and best practices with training and education programs on legal obligations, data management, preservation tools, and consequences of non-compliance.
The importance of understanding and abiding by the legal implications of document preservation in the face of litigation cannot be overstated. Google's case serves as a lesson for all.