As organizations continue to use instant messaging collaboration tools like Google Chat, and Slack, it's imperative that legal teams take accountability and work proactively with IT teams to ensure data related to litigation is preserved or risk e-discovery sanctions.
In this antitrust case, the plaintiff motioned for e-discovery sanctions against the defendant for not preserving Google Chat messages.
During discovery, plaintiffs asked Google about a “curious lack of [Google] Chat messages in its document productions.” Google responded that chats are typically deleted after 24 hours and that they did not suspend auto deletion even after the litigation began, instead leaving it to employees to make their own personal choices about preserving Google Chat messages.
Although a Google information governance employee testified that Google Chat was typically used for quick, one-off questions like cafe invitations and personal updates like pregnancy announcements, the court found that there was an “abundance of evidence” that Google employees routinely used Google Chat to discuss substantive business topics, including matters relevant to litigation.Plaintiffs subsequently moved for sanctions on the grounds that Google failed to preserve relevant electronically stored information (ESI), and the court held an evidentiary hearing on the motion.
• Motion for Sanctions Granted. The plaintiff’s motion for e-discovery sanctions was granted. While the court ordered Google to cover the plaintiff’s legal fees, it stopped short of granting non-monetary sanctions, stating further proceedings after the close of fact discovery made the “state of play of the evidence” clear.
• Lack of Custodian Compliance. The court ruled that Google Chat evidence could not be restored through additional discovery measures and Google did not take reasonable steps to preserve data. The unreasonable steps were as follows:
o Once litigation was reasonably foreseeable, they did not suspend their document retention policy, which was set to auto-delete chats after 24 hours.
o Google knew of bad faith conduct by custodians who were not complying with requests to preserve data, resulting in potentially relevant data being deleted.
• Expectation of Preservation. The court noted that Google is “a frequent and sophisticated litigation party,” that its employees “are no strangers to document production and discovery obligations,” and that Google has thousands of employees who are under a litigation hold for document preservation. Thus, the court concluded that “Google fell strikingly short” of its document preservation obligations.
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This case highlights the importance of both candor and cost clarity. Google’s efforts to “hide the ball” at every stage of discovery ultimately undermined its position. And its argument that preserving chat was too burdensome fell flat, partly because Google had no data-backed evidence about how costly it would be to preserve.