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Who gets to decide what is "potential evidence"? If we're going to play language games, turning the chat history off doesn't really destroy anything, just preve

by glerk 4y ago

Who gets to decide what is "potential evidence"? If we're going to play language games, turning the chat history off doesn't really destroy anything, just prevents the paper trail from being created.

pclmulqdq 4y ago
Well, I think the physical mechanism of turning off chat history on most of the modern chat platforms is to have a database delete each message after everyone in the conversation reads the message, which is a lot closer to destroying evidence than not making records. Also, if you destroy evidence that may be under litigation hold, the judge will instruct the jury to infer that what you deleted was harmful to your case.
iudqnolq 4y ago
> Who gets to decide what is "potential evidence"? You have an obligation to proactively figure that out yourself. There is then oversight by the court. > If we're going to play language games Judges don't play that sort of language games > turning the chat history off doesn't really destroy anything What Google called off the record chats were 24 hour history chats. So the history was deleted after 24 hours, when it should have been preserved.
- glerk 4y ago
  > What Google called off the record chats were 24 hour history chats. Ah, I missed that part, that's a very compelling argument. I disagree these are not language games though. The way the chat application was kept from preserving history is an implementation detail that doesn't reflect the action the user of the chat performed in the UI. It sounds like the truth is whatever a human judge can be convinced into deciding is true.
  - ncallaway 4y ago
    > It sounds like the truth is whatever a human judge can be convinced into deciding is true. I mean, that’s literally the judges job. It’s why they are called a judge. They make a judgement as to where the truth lies, and where the law lies (except for issues that are delegated to a jury, in which case the jury is responsible for determining the factual record). But, yes, judges make judgements and a lot of the “well, technically” semantic games that people play will be met with an annoyed scowl and a negative opinion (but, critically not all semantic games; there are some semantic differences that are of critical importance to a judge)
  - polotics 4y ago
    I am getting the feeling you are being disingenuous: a record is a record, a records that gets deleted after 24 hours was still a record. This is a truth based only on the meaning of the word "record". The chat application was not kept from preserving history, it was designed to actively delete history after 24 hours If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...
    - glerk 4y ago
      I admit I am playing the devil's advocate, but not trying to be disingenuous. The intention behind an ephemeral chat application is to allow private communication without creating a record. From the end user's perspective, the messages are thought to be self-destructing objects that are kept just long enough to be read by their recipient. The way this is achieved in practice is an implementation detail that end users are not necessarily aware of. I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded. An analogous real-world situation would be a meeting in a room where someone uses the whiteboard to draw some diagrams and erases it at the end. If we apply the same logic, you would be under obligation to take pictures of the whiteboard and send them to the court? Or even that you should record the whole meeting? Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.
      - Closi 4y ago
        > Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding. Well that’s kind of the whole thing with discovery - the court is asking the company to disclose relevant information (some of which will be against the company). Companies here have different disclosure requirements to an ordinary individual. And if new evidence is being created, that new evidence would be subject to the same data request. > I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded. Most corporate messaging apps have built in functionality to handle litigation holds. This is a requirement for legal compliance, so the company would have to train and brief employees on their legal responsibilities to not destroy evidence during the litigation. See: https://learn.microsoft.com/en-us/microsoft-365/compliance/ediscovery-teams-legal-hold?view=o365-worldwide https://learn.microsoft.com/en-us/microsoft-365/compliance/e... or https://slack.com/intl/en-gb/help/articles/4401830811795-Create-and-manage-legal-holds https://slack.com/intl/en-gb/help/articles/4401830811795-Cre... or https://support.google.com/vault/answer/7657594?hl=en https://support.google.com/vault/answer/7657594?hl=en Which conversations are subject to legal hold would be discussed in court.
hiddencost 4y ago
The judge.
eropple 4y ago
Judges rarely care for people who think they're smart enough to play "language games". You are expected to act in good faith as an executive or legal officer of a publicly-traded company.
ncallaway 4y ago
Turning chat history off typically doesn’t stop it from being recorded at all, but rather auto deletes messages after a short period. If messages are being deleted 1 day after being sent, despite being subject to a litigation hold, that’s… going to often make judges mad.
jwalton 4y ago
> Who gets to decide what is "potential evidence"? Ultimately, the courts do, but if something is possibly related you’re supposed to preserve it. > turning the chat history off doesn't really destroy anything IANAL but courts tend to view all written conversions the same way. Turning off chat history is viewed the same as throwing away all the mail you receive, and both are very much frowned upon when the court has specifically asked you not to. These rules are set through longstanding precedent.
- vjk800 4y ago
  What is the chat happens in a software that didn't have chat history feature in the first place? I mean it's Google, surely they could cook up a separate internal chat tool just for this purpose. And if the chat history didn't exist in the first place, can the court order the company to switch to a chat software that has it? If not, how is it that different from toggling chat history on/off in a single software?
  - deleted 4y ago
    [deleted]
hnbad 4y ago
IANAL but my reading is that by transmitting chat messages you are generating potential evidence so discarding those is destruction of that potential evidence. Presumably this does not apply to audio-visual real time communication as you're not transmitting entire messages but fragments in real time that don't convey any information by themselves. Sending back and forth recorded audio messages OTOH would presumably produce potential evidence. Sending each letter as it is typed presumably would not. That said, usually these things are ruled based on the spirit of the law as much as the letter of the law so trying to game this by working around technicalities would likely be considered ... bad.

by glerk 4y ago

Who gets to decide what is "potential evidence"? If we're going to play language games, turning the chat history off doesn't really destroy anything, just prevents the paper trail from being created.

pclmulqdq 4y ago

Well, I think the physical mechanism of turning off chat history on most of the modern chat platforms is to have a database delete each message after everyone in the conversation reads the message, which is a lot closer to destroying evidence than not making records. Also, if you destroy evidence that may be under litigation hold, the judge will instruct the jury to infer that what you deleted was harmful to your case.

iudqnolq 4y ago

> Who gets to decide what is "potential evidence"? You have an obligation to proactively figure that out yourself. There is then oversight by the court. > If we're going to play language games Judges don't play that sort of language games > turning the chat history off doesn't really destroy anything What Google called off the record chats were 24 hour history chats. So the history was deleted after 24 hours, when it should have been preserved.

glerk 4y ago
> What Google called off the record chats were 24 hour history chats. Ah, I missed that part, that's a very compelling argument. I disagree these are not language games though. The way the chat application was kept from preserving history is an implementation detail that doesn't reflect the action the user of the chat performed in the UI. It sounds like the truth is whatever a human judge can be convinced into deciding is true.
- ncallaway 4y ago
  > It sounds like the truth is whatever a human judge can be convinced into deciding is true. I mean, that’s literally the judges job. It’s why they are called a judge. They make a judgement as to where the truth lies, and where the law lies (except for issues that are delegated to a jury, in which case the jury is responsible for determining the factual record). But, yes, judges make judgements and a lot of the “well, technically” semantic games that people play will be met with an annoyed scowl and a negative opinion (but, critically not all semantic games; there are some semantic differences that are of critical importance to a judge)
- polotics 4y ago
  I am getting the feeling you are being disingenuous: a record is a record, a records that gets deleted after 24 hours was still a record. This is a truth based only on the meaning of the word "record". The chat application was not kept from preserving history, it was designed to actively delete history after 24 hours If there is a court order to not delete history, then the application was designed to do the opposite, and if a technical detail meant the application could not be changed, then the only way to respect the order would have been to stop using the chat application. Instead, there was a decision to use it more ...
  - glerk 4y ago
    I admit I am playing the devil's advocate, but not trying to be disingenuous. The intention behind an ephemeral chat application is to allow private communication without creating a record. From the end user's perspective, the messages are thought to be self-destructing objects that are kept just long enough to be read by their recipient. The way this is achieved in practice is an implementation detail that end users are not necessarily aware of. I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded. An analogous real-world situation would be a meeting in a room where someone uses the whiteboard to draw some diagrams and erases it at the end. If we apply the same logic, you would be under obligation to take pictures of the whiteboard and send them to the court? Or even that you should record the whole meeting? Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding.
    - Closi 4y ago
      > Something just doesn't feel right with the idea that you can be under obligation to help make a case against yourself in a legal proceeding. Well that’s kind of the whole thing with discovery - the court is asking the company to disclose relevant information (some of which will be against the company). Companies here have different disclosure requirements to an ordinary individual. And if new evidence is being created, that new evidence would be subject to the same data request. > I don't see how the users of the chat application can be expected to be aware of the implementation or proactively find ways for these private conversations to be recorded. Most corporate messaging apps have built in functionality to handle litigation holds. This is a requirement for legal compliance, so the company would have to train and brief employees on their legal responsibilities to not destroy evidence during the litigation. See: https://learn.microsoft.com/en-us/microsoft-365/compliance/ediscovery-teams-legal-hold?view=o365-worldwide https://learn.microsoft.com/en-us/microsoft-365/compliance/e... or https://slack.com/intl/en-gb/help/articles/4401830811795-Create-and-manage-legal-holds https://slack.com/intl/en-gb/help/articles/4401830811795-Cre... or https://support.google.com/vault/answer/7657594?hl=en https://support.google.com/vault/answer/7657594?hl=en Which conversations are subject to legal hold would be discussed in court.

hiddencost 4y ago

The judge.

eropple 4y ago

Judges rarely care for people who think they're smart enough to play "language games". You are expected to act in good faith as an executive or legal officer of a publicly-traded company.

ncallaway 4y ago

Turning chat history off typically doesn’t stop it from being recorded at all, but rather auto deletes messages after a short period. If messages are being deleted 1 day after being sent, despite being subject to a litigation hold, that’s… going to often make judges mad.

jwalton 4y ago

> Who gets to decide what is "potential evidence"? Ultimately, the courts do, but if something is possibly related you’re supposed to preserve it. > turning the chat history off doesn't really destroy anything IANAL but courts tend to view all written conversions the same way. Turning off chat history is viewed the same as throwing away all the mail you receive, and both are very much frowned upon when the court has specifically asked you not to. These rules are set through longstanding precedent.

vjk800 4y ago
What is the chat happens in a software that didn't have chat history feature in the first place? I mean it's Google, surely they could cook up a separate internal chat tool just for this purpose. And if the chat history didn't exist in the first place, can the court order the company to switch to a chat software that has it? If not, how is it that different from toggling chat history on/off in a single software?
- deleted 4y ago
  [deleted]

hnbad 4y ago

IANAL but my reading is that by transmitting chat messages you are generating potential evidence so discarding those is destruction of that potential evidence. Presumably this does not apply to audio-visual real time communication as you're not transmitting entire messages but fragments in real time that don't convey any information by themselves. Sending back and forth recorded audio messages OTOH would presumably produce potential evidence. Sending each letter as it is typed presumably would not. That said, usually these things are ruled based on the spirit of the law as much as the letter of the law so trying to game this by working around technicalities would likely be considered ... bad.