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> Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. > "routinely opted to mov

> Turning history off when you are under a retention order is likely to be equivalent to destroying records, in the eyes of a judge. > "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" Nah, I think that's too far. There are simply too many legitimate reasons for Google to turn history off. What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? You can only prove they had a sensitive conversation they wanted no record of, but you can't prove that that sensitive conversation is under the "legal hold" they were in. Even if all the context of the on-record chat seem to imply a crucial bit is coming up, you can't really prove the crucial bit did come up. It's all based on speculation. > If they wanted to be truly off the record, they should have met in person or made a phone call. So... `spichai: let's take this to an ephemeral chat` will be viewed negatively but `spichai: let's discuss this in person` is completely normal? I'm not buying it.

deleted 4y ago
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woodruffw 4y ago
> What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? That's a matter for a court, or a court-appointed expert, to decide. You don't get to opt-out of discovery procedures by intuiting that the other party simply wouldn't be interested in what you have to say. (This raises all kinds of legitimate corporate IP concerns, which the courts have extensive experience handling.)
- yallpendantools 4y ago
  But in this case, an "irrelevant topic" can range from something exclusively Google's business (like details of a new product) to something uber-mundane or even personal. So, really, unless the legal hold on Google is a blanket, encompassing order to preserve all internal comms, I find it difficult to be objectively certain they are at fault here.
  - woodruffw 4y ago
    I think you're extending this too far, beyond the facts available: it sounds like a few companies have identified a specific policy within Google, one that seems to exist primarily to render discovery impossible. They're not asking a court to impose onerous or abnormal preservation mechanisms, as evidenced by no other company of Google's size or scope deleting all messages every 24 hours.
    - yallpendantools 4y ago
      Caveat: I did not read the embedded pdfs but I did read the article, and nothing there even alludes to anything like a retention policy. Even the wording of the accusation does not even imply a policy: > 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 Routinely opted is not a policy. A policy is formal, not an option you routinely take. I'll wager even the best lawyers will be hard-pressed to prove this routine is primarily to render discovery impossible. In fact, on face value alone it will be hard to objectively prove any purpose to this, unless more info/evidence/data/witnesses come up. The text that follows my quote > they did so even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation. makes assumptions that you can only speculate on, not prove. Sure, they were discussing topics covered by the litigation and then pivoted to private chat within nine seconds. Does it follow that the part of the conversation they moved off-record (and hence we are not privy to) is also definitely covered by litigation and could affect the outcome of the trial? Not necessarily (although likely, alas courts don't settle for likely).
rhaway84773 4y ago
We are not talking about an ordinary situation. We’re talking about a situation where Google has been placed under a retention order because of a lawsuit. This is not gonna work out well for Google at all because this kind of BS really pisses judges off and also looks really bad to juries if it makes it that far.

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woodruffw 4y ago

> What if they are switching to a topic irrelevant to the case and, therefore, not covered by discovery? That's a matter for a court, or a court-appointed expert, to decide. You don't get to opt-out of discovery procedures by intuiting that the other party simply wouldn't be interested in what you have to say. (This raises all kinds of legitimate corporate IP concerns, which the courts have extensive experience handling.)

yallpendantools 4y ago
But in this case, an "irrelevant topic" can range from something exclusively Google's business (like details of a new product) to something uber-mundane or even personal. So, really, unless the legal hold on Google is a blanket, encompassing order to preserve all internal comms, I find it difficult to be objectively certain they are at fault here.
- woodruffw 4y ago
  I think you're extending this too far, beyond the facts available: it sounds like a few companies have identified a specific policy within Google, one that seems to exist primarily to render discovery impossible. They're not asking a court to impose onerous or abnormal preservation mechanisms, as evidenced by no other company of Google's size or scope deleting all messages every 24 hours.
  - yallpendantools 4y ago
    Caveat: I did not read the embedded pdfs but I did read the article, and nothing there even alludes to anything like a retention policy. Even the wording of the accusation does not even imply a policy: > 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 Routinely opted is not a policy. A policy is formal, not an option you routinely take. I'll wager even the best lawyers will be hard-pressed to prove this routine is primarily to render discovery impossible. In fact, on face value alone it will be hard to objectively prove any purpose to this, unless more info/evidence/data/witnesses come up. The text that follows my quote > they did so even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation. makes assumptions that you can only speculate on, not prove. Sure, they were discussing topics covered by the litigation and then pivoted to private chat within nine seconds. Does it follow that the part of the conversation they moved off-record (and hence we are not privy to) is also definitely covered by litigation and could affect the outcome of the trial? Not necessarily (although likely, alas courts don't settle for likely).

rhaway84773 4y ago

We are not talking about an ordinary situation. We’re talking about a situation where Google has been placed under a retention order because of a lawsuit. This is not gonna work out well for Google at all because this kind of BS really pisses judges off and also looks really bad to juries if it makes it that far.