Last week, a federal judge, James Donato, ruled that Google had failed to maintain chat evidence under legal hold, despite knowing better, resulting in the judge approving spoliation sanctions against the tech giant. The plaintiffs in the Google Play Store Antitrust Litigation case had first noticed the absence of Google's internal chat messaging data in April 2021, which Google had explained was because all internal Google chats are typically auto-deleted within 24 hours. However, instead of implementing a systemic pause on deletion, Google left the responsibility of chat history preservation to the individual custodians. In 2022, when the plaintiffs motioned for sanctions, the investigation focused on whether a systemic or custodial hold was better. Craig Ball, a Texas attorney, and forensic expert, believes in combining preservation strategies, stating that systemic storage can be "lazy and wasteful" while relying solely on custodians can be "unwise, even reckless." Andrew J. Peck, a former U.S. Magistrate Judge, notes that preserving excess information could lead to data privacy violations and other privacy regulations.
According to former U.S. Magistrate Judge Andrew J. Peck, in the Google Play Store Antitrust Litigation case, the employees either didn't know what to do or didn't care, which led to a problem with custodial holds. Training staff on e-discovery practices and the principles of a litigation hold is a crucial to custodial grips. Failure to do so, or monitor the course, may add a layer to spoliation sanctions. However, Google argued that responsive data might be stored in multiple places. Google stated that the plaintiffs failed to articulate why key evidence would be buried amid chats regarding lunch plans and meeting requests.
But Craig Ball and Peck pointed out that there is a distinction between email and chat that needs to be addressed, and this distinction became a point of concern regarding how Justice Donato ruled in the case. Ball argues that it's unlikely to get the same accurate revelations from email and documents you see in texts and chats. Effectively, Google's failure to preserve chat data may have been compounded by the defense stating that the entity didn't need to maintain internal chats the way they do email.
Ball warned that companies could no longer treat messaging and chat as peripheral and disposable. These sources of communication may have supplanted email altogether, especially regarding unguarded observations. Essentially, just because a company policy says 'no company business via texts' doesn't mean it's not happening every day.
