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You seem to be assuming Google will lose. Seems more likely that they will win and the article author is wrong when he says "From the outside it appears very,

You seem to be assuming Google will lose. Seems more likely that they will win and the article author is wrong when he says "From the outside it appears very, very difficult to imagine that Google will get away with what it's done." There is no law compelling you to write down every word, thought or discussion that takes place in the office. Google was subject to litigation holds. That means you can't destroy evidence if it might be relevant, it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? The author's inability to imagine Google's lawyers successfully making this argument reflects poorly on their imaginative skills, not Google.

bootwoot 4y ago
I was taking the referenced chat conversation in the post to have occurred after the legal hold was put in place. It seems far more devious to explicitly avoid records in places that would otherwise have records when a court has already said "you need to have records". I'm not a lawyer and don't know the context that well, though, so this may be incorrect understanding on my part.
- revelio 4y ago
  Whether it seems devious or not to you, has no bearing on whether it's legal. The court does not say "you need to create records on this topic going forward". It says "you need to retain records you already created on this topic". One thing that may confuse people is that some industries like finance are subject to regulations that force them to create records of employee conversations even if normally they wouldn't and even if there's no pending lawsuit. But those are industry specific rules governing specific activities like trading, not a general legal concept that'd have applied to Google.
  - 2OEH8eoCRo0 4y ago
    The records existed for 24 hours and were then deleted.
    - revelio 4y ago
      [flagged]
- sdenton4 4y ago
  And yet, it's legal to make a phone call and discuss these matters for hours. Lawyers talk on the phone all the time, for exactly this reason. You could require transcripts and recordings of all conversations, just in case something pertains to litigation. But this is an obviously bad move from privacy, ethical, and efficiency view points. The question is whether we want to allow written media which have equal footing / similar properties to phone calls.
silentsea90 4y ago
I don't make such assumptions and have no understanding of what's right or wrong legally. I speak as a xoogler who hated Chat (featurewise) + retention policy and found it to exacerbate Google's sluggishness in shipping.
otterley 4y ago
Why do you think Google is more likely to prevail? Why do you think your opinion is more informed than that of an experienced legal analyst? What are your bona fides? At any rate, if a court says you have to retain copies of communications, that includes chat communications; and if you have a retention policy that would ordinarily expire them, you're then required to disable expiry if the communications are subject to the order until the order has been rescinded. That's the law, and you ignore it at your peril.
- revelio 4y ago
  [flagged]
  - gavinhoward 4y ago
    From the bio, otterley appears to be a lawyer. What are your bona fides?
cjensen 4y ago
You seem to be arguing against something no one has suggested. No one has suggested they have to document every conversation or thought. However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed. So the rule is "do not destroy records you have create" not "record everything."
- revelio 4y ago
  Exactly, which is why this headline is misleading and the complaint will probably fail. It says: "Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" So what? That isn't deleting chat records, it's opting not to create them in the first place. Unless there was some unusually specific court order telling them they were mandated to generate new evidence specifically to convenience the plaintiffs, or the judges decide to create new obligations via case law, Google will simply point out that they aren't under any obligation to forcibly record every employee conversation about a topic from the moment a lawsuit is filed that might involve that topic. Their obligation only extends to letting plaintiffs do discovery over whatever documentary evidence was already created.
  - vorpalhex 4y ago
    The reason why we have a human court system is that Judges don't have to be naive readers. The justice system doesn't do the: "Oh darn! You got me in a technicality! Not recording isn't the same as deleting!" Instead the judge is going to ask if it was obvious the information was required to be preserved and if it was, then why Google did not preserve it. "Ah but there was nothing to preserve because..." is not a clever retort, it's a fast track to a contempt charge. If you are under a hold, you are under a hold.
    - revelio 4y ago
      Justice systems routinely let people off on a technicality and this is far from being a technicality. Think through what you're proposing here - that the moment someone files a lawsuit against you (on any topic of their choosing regardless of how broad) you can no longer talk about that topic in person with anyone, but instead must do all conversations in recorded media? That's not a minor change to the law, creating a new obligation here would fundamentally alter the nature of all corporate communication in America and mandate vast new compliance infrastructures.
joe_the_user 4y ago
The point the parent seems to make is that Google makes communication a hassle within the company with this policy. It would seem that a lot of "this is how you do that thing" information would be lost etc. It seems to be nearly at the point of "To avoid being held responsible for what we do, we make it a point to not actually know what we're doing"...
vkou 4y ago
> How would that even work? Hypothetically speaking, it could require at least retaining and backing up the text of every chat and e-mail produced. For a FANG company, a year of chats or emails should trivially fit on a consumer-grade hard-drive. This isn't a technically difficult problem. No, that doesn't capture every bit of communication in a company, but it's a very low bar that the government ought to require. It also raises the difficulty bar for hiding bad behaviour. If keeping bad behaviour off the record requires in-person meetings, and synchronous phone calls, it makes the people engaging in it dramatically less efficient.
HillRat 4y ago
The plaintiff is arguing that GOOG is guilty of intentional spoliation of evidence, and that execs deliberately moving conversations to ephemeral channels demonstrates mens rea; if the judge agrees, they can instruct the jury (or trier of fact) that any missing evidence should be construed through the lens of “adverse inference” — in other words, assume that the missing evidence is, in fact, prejudicial to the defense’s case. This is … not something you want in a litigation, needless to say. So, yeah, you can delete evidence that you know could be relevant to any future litigation, it’s just that if a judge finds out about it you’re going to get hit hard over it.
- justeleblanc 4y ago
  Why are you referring to the company using its ticker symbol? Do you specifically want to make a difference between classes of stock? I don't see how that's relevant.
matheusmoreira 4y ago
> it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? We're talking about Google. This is exactly what they do. It works very well too. Google suddenly finding in itself the will to forget information about people after lawsuits started coming? One would have to be naive to believe it's not deliberate destruction of evidence. If Google gets away with this, it only reflects poorly on the "justice" system which actually believed such shenanigans.
fxtentacle 4y ago
Since it's the US government suing them, I'm pretty sure this case will be decided in part by public opinion.

bootwoot 4y ago

I was taking the referenced chat conversation in the post to have occurred after the legal hold was put in place. It seems far more devious to explicitly avoid records in places that would otherwise have records when a court has already said "you need to have records". I'm not a lawyer and don't know the context that well, though, so this may be incorrect understanding on my part.

revelio 4y ago
Whether it seems devious or not to you, has no bearing on whether it's legal. The court does not say "you need to create records on this topic going forward". It says "you need to retain records you already created on this topic". One thing that may confuse people is that some industries like finance are subject to regulations that force them to create records of employee conversations even if normally they wouldn't and even if there's no pending lawsuit. But those are industry specific rules governing specific activities like trading, not a general legal concept that'd have applied to Google.
- 2OEH8eoCRo0 4y ago
  The records existed for 24 hours and were then deleted.
  - revelio 4y ago
    [flagged]
sdenton4 4y ago
And yet, it's legal to make a phone call and discuss these matters for hours. Lawyers talk on the phone all the time, for exactly this reason. You could require transcripts and recordings of all conversations, just in case something pertains to litigation. But this is an obviously bad move from privacy, ethical, and efficiency view points. The question is whether we want to allow written media which have equal footing / similar properties to phone calls.

silentsea90 4y ago

I don't make such assumptions and have no understanding of what's right or wrong legally. I speak as a xoogler who hated Chat (featurewise) + retention policy and found it to exacerbate Google's sluggishness in shipping.

otterley 4y ago

Why do you think Google is more likely to prevail? Why do you think your opinion is more informed than that of an experienced legal analyst? What are your bona fides? At any rate, if a court says you have to retain copies of communications, that includes chat communications; and if you have a retention policy that would ordinarily expire them, you're then required to disable expiry if the communications are subject to the order until the order has been rescinded. That's the law, and you ignore it at your peril.

revelio 4y ago
[flagged]
- gavinhoward 4y ago
  From the bio, otterley appears to be a lawyer. What are your bona fides?

cjensen 4y ago

You seem to be arguing against something no one has suggested. No one has suggested they have to document every conversation or thought. However, if the conversation is chat/text/email then it is considered a written record that may not be destroyed. So the rule is "do not destroy records you have create" not "record everything."

revelio 4y ago
Exactly, which is why this headline is misleading and the complaint will probably fail. It says: "Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds" So what? That isn't deleting chat records, it's opting not to create them in the first place. Unless there was some unusually specific court order telling them they were mandated to generate new evidence specifically to convenience the plaintiffs, or the judges decide to create new obligations via case law, Google will simply point out that they aren't under any obligation to forcibly record every employee conversation about a topic from the moment a lawsuit is filed that might involve that topic. Their obligation only extends to letting plaintiffs do discovery over whatever documentary evidence was already created.
- vorpalhex 4y ago
  The reason why we have a human court system is that Judges don't have to be naive readers. The justice system doesn't do the: "Oh darn! You got me in a technicality! Not recording isn't the same as deleting!" Instead the judge is going to ask if it was obvious the information was required to be preserved and if it was, then why Google did not preserve it. "Ah but there was nothing to preserve because..." is not a clever retort, it's a fast track to a contempt charge. If you are under a hold, you are under a hold.
  - revelio 4y ago
    Justice systems routinely let people off on a technicality and this is far from being a technicality. Think through what you're proposing here - that the moment someone files a lawsuit against you (on any topic of their choosing regardless of how broad) you can no longer talk about that topic in person with anyone, but instead must do all conversations in recorded media? That's not a minor change to the law, creating a new obligation here would fundamentally alter the nature of all corporate communication in America and mandate vast new compliance infrastructures.

joe_the_user 4y ago

The point the parent seems to make is that Google makes communication a hassle within the company with this policy. It would seem that a lot of "this is how you do that thing" information would be lost etc. It seems to be nearly at the point of "To avoid being held responsible for what we do, we make it a point to not actually know what we're doing"...

vkou 4y ago

> How would that even work? Hypothetically speaking, it could require at least retaining and backing up the text of every chat and e-mail produced. For a FANG company, a year of chats or emails should trivially fit on a consumer-grade hard-drive. This isn't a technically difficult problem. No, that doesn't capture every bit of communication in a company, but it's a very low bar that the government ought to require. It also raises the difficulty bar for hiding bad behaviour. If keeping bad behaviour off the record requires in-person meetings, and synchronous phone calls, it makes the people engaging in it dramatically less efficient.

HillRat 4y ago

The plaintiff is arguing that GOOG is guilty of intentional spoliation of evidence, and that execs deliberately moving conversations to ephemeral channels demonstrates mens rea; if the judge agrees, they can instruct the jury (or trier of fact) that any missing evidence should be construed through the lens of “adverse inference” — in other words, assume that the missing evidence is, in fact, prejudicial to the defense’s case. This is … not something you want in a litigation, needless to say. So, yeah, you can delete evidence that you know could be relevant to any future litigation, it’s just that if a judge finds out about it you’re going to get hit hard over it.

justeleblanc 4y ago
Why are you referring to the company using its ticker symbol? Do you specifically want to make a difference between classes of stock? I don't see how that's relevant.

matheusmoreira 4y ago

> it doesn't imply some sort of unlimited obligation to create endless documents containing every word uttered by every employee 24/7. How would that even work? We're talking about Google. This is exactly what they do. It works very well too. Google suddenly finding in itself the will to forget information about people after lawsuits started coming? One would have to be naive to believe it's not deliberate destruction of evidence. If Google gets away with this, it only reflects poorly on the "justice" system which actually believed such shenanigans.

fxtentacle 4y ago

Since it's the US government suing them, I'm pretty sure this case will be decided in part by public opinion.