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This is....amazing. As I understand it: Chats at google by default have 24 hours of chat history. (That is, after 24 hours, the chat history is delelted.) You

by Lazare 3y ago

This is....amazing. As I understand it: Chats at google by default have 24 hours of chat history. (That is, after 24 hours, the chat history is delelted.) You can opt in to having 30 days of chat history instead. And when under a legal hold, Google continues to delete chats in the 24 hour history mode, but will not delete chats in the 30 day history mode. That is, Google's theory here seems to be that if you have a policy to destroy certain letters and memos 24 hours after receiving or creating them, then you don't need to stop doing that and preserve them even if under a court ordered legal hold. But if your policy is to destroy certain documents 30 days after creating them, then you must stop deleting them and retain them if ordered by a court. Which is....a.....theory! I think it's fine for Google to have a policy to delete chats by default after 24 hours, and...probably fine for some executives to strongly prefer to use the 24 hour history mode by default just in case they get sued sometime in the next 30 days. What I don't understand is what argument exists for why you can delete relevant records after you're under a legal hold. I guess there's a little complexity here in that Google seems to have called (and thought of) these chats as being off the record - that is, they weren't chats with recordings deleted automatically after 24 hours, they were chats that had no recordings and just happened to have chat history that stuck around for 24 hours. From a technical point of view, that's nonsense; the chat history is absolutely a recording, and slapping a label on top saying "off the record" doesn't change that. But eh, maybe it'll be more convincing to the judge.

rebuilder 3y ago
One thing that comes to mind is that by the time a judge orders a hold, more than 24 hours will have elapsed since any chats that hold applies to. That is, if such a hold only applies to records created before the hold - do these orders apply to future records as well?
- tempestn 3y ago
  Yes, they apply to future records while the hold is in effect.
- Lazare 3y ago
  The brief answer is that if you know, or can "reasonably anticipate" legal action, you have to take steps to preserve evidence related to it. So if Google has been sued about, let's say, how they negotiate Revenue Share Agreements (RSAs), then they need to 1) take active steps to ensure any records they have about RSAs are retained, including making sure they aren't caught by any document retention policies and 2) they need to preserve any future records that might be relevant. And they also need to do that if they can "reasonably anticipate" they might be sued, which means (at a minimum) that if someone sends them a formal note telling them that they're planning to sure about RSAs (or whatever) they need to start retaining evidence. If all your communications are either unrecorded or are deleted after 24 hours, then when you get sued (or receive a notice indicating someone is preparing to sue) then: 1) You likely have almost no retained records you need to prevent being deleted. 2) And in fact you can very likely argue that it took you more than 24 hours to implement the legal hold, so actually all your existing recorded conversations will probably end up deleted. 3) But everything going forward will be covered. And since these lawsuits drag on for years, that's likely to be quite a lot of material. Unless you keep deleting most of them, of course. Which doesn't seem like a good plan, but I suppose we'll see how it works for Google.
- deleted 3y ago
  [deleted]
- 1vuio0pswjnm7 3y ago
  "... by the time a judge orders a hold..." The obligation to preserve electronically stored information, e.g., the Google chats, starts upon reasonable anticipation of litigation, e.g., when the DoJ announces it has initiated an investigation of the company and dozens of state AGs publicly announce plans to sue. That can be before a suit is filed and before a judge is assigned. No court order needed.
1vuio0pswjnm7 3y ago
FRCP 37 ... (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Google has been accused of violating FRCP 37(e). USA and State AGs have moved for sanctions in another case against Google in DDC: https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.574.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22... https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.575.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22... In the Epic case the court did not believe that the steps taken to preserve chats were reasonable. "Consequently, on the record as a whole, the Court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. Fed. R. Civ. P. 37(e)." https://archive.org/download/gov.uscourts.cand.364325/gov.uscourts.cand.364325.401.0.pdf https://archive.org/download/gov.uscourts.cand.364325/gov.us...
- atian 3y ago
  > a party failed to take reasonable steps to preserve it There is nothing reasonable about turning an existing system that was never designed to keep chats at all, to do on a whim, where would cause irreparable damage to the common offering both internally and externally. Once is a pass, but 24 hours is not nearly an established window that a medium can/should be made arbitrarily compliant. It would be a large precedent.
  - Lazare 3y ago
    That does seem like the obvious argument, but... Technically, storing chat history from 24 hours isn't really any different than storing it for 30 days. Or 30 years. Either it's on disk somewhere or it isn't, and if it is, then you can just...not delete it. The option to not delete it may not be exposed in the 24 hour option, while it is in the 30 day option, but courts tend to be skeptical of arguments of the form "we have carefully engineered this machine not to have a button to make it follow the law, thus we are blameless". And of course, even if it really is difficult (obviously it's not impossible given Google's resources and that this is a Google created tool!) to stop deleting the 24 hour chats, Google had other options. For example, they could make a good faith effort to ensure that critical chats took place in channels or group chats where the history setting was enabled. But instead it seems they made an effort to move chats away from there. > where would cause irreparable damage to the common offering both internally and externally. I think you'll find that "being able to comply with the law" is generally seen as a positive. It's actually a feature that Google touts quite highly in the contrext of Google Workspace. :) Also note that this is something that was totally supported by their chat platform when history was enabled, and if you read the PDF, a constant theme is people upset because they were being forced to avoid newer features (like threads) because you couldn't make it delete chats that should be preserved if you were using threads. So rather than the legal system asking Google to damage their offering by adding a feature to it, we see Google asking staff to use a less capable offering because it was lacking the feature. It is certainly possible that a court may find that what Google did here is okay; that they didn't have an obligation to either not delete relevant conversations that took place in the channels with extended history disabled or hold those conversations in channels with extended history enabled. But...I wouldn't bet on it. And note that this also came up with the Musk/Twitter saga: > In McCormick’s letter today, she says she believes Musk did use Signal. “I am forced to conclude that it is likely Defendant’s custodians permitted the automatic deletion of responsive Signal communications between them and possibly others, and that those communications are irretrievably lost,” she writes. Twitter has requested sanctions against Musk, but McCormick hasn’t decided on whether she’ll sanction him yet. (Source: https://www.theverge.com/2022/10/5/23389568/musk-twitter-signal-deleted-messages-judge-ruling https://www.theverge.com/2022/10/5/23389568/musk-twitter-sig...) Musk responded by folding and aggreeing to purchase Twitter after all. And although there were a number of factors there (his case was horrible) a decent chunk was his usage of automatically deleting Signal chats for communications he had an obligation to retain. And whether or not this was okay wasn't ever really an open question; the questions were whether it happened, and if so, what sort of penalties Musk would have to suffer. > It would be a large precedent. Not so much.
deleted 3y ago
[deleted]
Paul-Craft 3y ago
This is just Google up to their old tricks again. They used to have an internal practice to add company lawyers to emails in order to try and make them privileged and undiscoverable: https://archive.is/1Bwgs https://archive.is/1Bwgs I don't know what the aftermath of the DoJ action mentioned in the link was, but I hope they were sanctioned in some way for it, just like I hope they get sanctioned for what they're trying to do here.
- zootboy 3y ago
  There was a recent supreme court case where they discussed this exact practice: https://www.oyez.org/cases/2022/21-1397 https://www.oyez.org/cases/2022/21-1397 From listening to the oral arguments, the court didn't seem to think that just CC'ing a lawyer automatically made the full communication privileged.
  - seanhunter 3y ago
    Yup, as per my note in another thread this does not work and it's pretty dumb to think it will work. Privilege covers you providing facts so they can give advice and them giving advice. It doesn't cover anything else and adding a lawyer to a thread like that is just sketchy and looks evasive.
    - JWLong 3y ago
      “If simply having a lawyer present made a conversation privileged, then every mobster would pay one to follow them everywhere and sit in the corner of the room.” ~ Opening Arguments
  - bryanrasmussen 3y ago
    I get the idea that if Google was delivering drugs to someone they would start off the conversation: "Are you a cop? Cause you have to tell me if you are!"
  - ajb 3y ago
    You should be a bit wary of reading oral arguments as definitive, because the judges have a history of applying the more aggressive questioning to the side they ultimately agree with, just to make sure it's solid.
auggierose 3y ago
Not familiar with the details in this case, but it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, and everyone who uses it assumes it is off-the-record. Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? I don't think so, just as a court order doesn't apply to a live conversation which isn't recorded. Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Doesn't seem to be a clear-cut case to me.
- ranting-moth 3y ago
  It's very clear-cut. The topic is about deleting data. There's a massive difference in deleting records that did exists vs. records that never existed in the first place. The former is deleting data, the second case isn't.
  - auggierose 3y ago
    I think I explained why it isn't that clear-cut, even when it is about deleting data. I guess that's why there are courts, and not only HN opinions.
    - nolok 3y ago
      It is clear cut. Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper. Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day. Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold. You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.
tyingq 3y ago
The loophole for face-to-face and telephone conversations is sort of interesting. I wonder if it remains because it historically wasn't historically practical to record...or solely because of eavesdropping/consent laws. Or some combination of the two? What if you were using a 3rd party chat with no history capability at all...where does that fall?
- devrand 3y ago
  AFAIK you have an obligation to retain records if under a legal hold, but you do not have an obligation to create records. So if your company policy is to record all phone calls, then yes, you would need to retain and provide those records as part of discovery. However, you cannot be obligated to start recording phone calls in order to make them discoverable. > What if you were using a 3rd party chat with no history capability at all...where does that fall? This somewhat gets to the heart of what Google was doing. There's two parts to this: 1. There's always some amount of history with chat software as it's a async communication mechanism. Maybe it's minutes, hours, or days. But let's say there's no feature to retain messages for longer. If you're under a legal hold, are you obligated to retain these? 2. Now let's say the software does also have a history feature but it's optional that you can switch on, but you default it to off for everyone. If you're under a legal hold, are you now obligated to turn it on? Or this is analogous to being forced to start recording phone calls. Regardless of why Google was doing this, it's an interesting legal question and one that I'm not sure has much case law on. > The loophole for face-to-face and telephone conversations is sort of interesting. I wonder if it remains because it historically wasn't historically practical to record...or solely because of eavesdropping/consent laws. I think it's largely because you had to go out of your way to record a phone call. You generally needed to get an extra device, wire it up, get tapes, etc. In the modern era of video calls this is a built-in feature available at the click of a button. Which raises the question: if you're under a legal hold are you compelled to enable that by default?
  - tyingq 3y ago
    >Which raises the question: if you're under a legal hold are you compelled to enable that by default? Right...similar for plain old telephone calls now too. That is, many VOIP PBX systems have a simple way to enable recordings.
the_optimist 3y ago
Same thing that happened to Hillary Clinton’s emails. In fact, ”a computer technician” introduced the email deletion policy after a subpoena was issued. Remind me is how Google did something horrific here, must be some dastardly “computer technicians.”
Ferret7446 3y ago
That's a dangerous path. It implies that anything that so much as touches a computer must be preserved for the government. There absolutely should be a category for data to be transmitted with the understanding that it will not be preserved. Otherwise, you will just push people to use analog communication channels (or legal arguments around "what is a record", "what about E2E encrypted", "do debug logs count", etc), and for what? No one wins.

by Lazare 3y ago

rebuilder 3y ago

One thing that comes to mind is that by the time a judge orders a hold, more than 24 hours will have elapsed since any chats that hold applies to. That is, if such a hold only applies to records created before the hold - do these orders apply to future records as well?

tempestn 3y ago
Yes, they apply to future records while the hold is in effect.
Lazare 3y ago
The brief answer is that if you know, or can "reasonably anticipate" legal action, you have to take steps to preserve evidence related to it. So if Google has been sued about, let's say, how they negotiate Revenue Share Agreements (RSAs), then they need to 1) take active steps to ensure any records they have about RSAs are retained, including making sure they aren't caught by any document retention policies and 2) they need to preserve any future records that might be relevant. And they also need to do that if they can "reasonably anticipate" they might be sued, which means (at a minimum) that if someone sends them a formal note telling them that they're planning to sure about RSAs (or whatever) they need to start retaining evidence. If all your communications are either unrecorded or are deleted after 24 hours, then when you get sued (or receive a notice indicating someone is preparing to sue) then: 1) You likely have almost no retained records you need to prevent being deleted. 2) And in fact you can very likely argue that it took you more than 24 hours to implement the legal hold, so actually all your existing recorded conversations will probably end up deleted. 3) But everything going forward will be covered. And since these lawsuits drag on for years, that's likely to be quite a lot of material. Unless you keep deleting most of them, of course. Which doesn't seem like a good plan, but I suppose we'll see how it works for Google.
deleted 3y ago
[deleted]
1vuio0pswjnm7 3y ago
"... by the time a judge orders a hold..." The obligation to preserve electronically stored information, e.g., the Google chats, starts upon reasonable anticipation of litigation, e.g., when the DoJ announces it has initiated an investigation of the company and dozens of state AGs publicly announce plans to sue. That can be before a suit is filed and before a judge is assigned. No court order needed.

1vuio0pswjnm7 3y ago

FRCP 37 ... (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Google has been accused of violating FRCP 37(e). USA and State AGs have moved for sanctions in another case against Google in DDC: https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.574.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22... https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.575.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22... In the Epic case the court did not believe that the steps taken to preserve chats were reasonable. "Consequently, on the record as a whole, the Court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. Fed. R. Civ. P. 37(e)." https://archive.org/download/gov.uscourts.cand.364325/gov.uscourts.cand.364325.401.0.pdf https://archive.org/download/gov.uscourts.cand.364325/gov.us...

atian 3y ago
> a party failed to take reasonable steps to preserve it There is nothing reasonable about turning an existing system that was never designed to keep chats at all, to do on a whim, where would cause irreparable damage to the common offering both internally and externally. Once is a pass, but 24 hours is not nearly an established window that a medium can/should be made arbitrarily compliant. It would be a large precedent.
- Lazare 3y ago
  That does seem like the obvious argument, but... Technically, storing chat history from 24 hours isn't really any different than storing it for 30 days. Or 30 years. Either it's on disk somewhere or it isn't, and if it is, then you can just...not delete it. The option to not delete it may not be exposed in the 24 hour option, while it is in the 30 day option, but courts tend to be skeptical of arguments of the form "we have carefully engineered this machine not to have a button to make it follow the law, thus we are blameless". And of course, even if it really is difficult (obviously it's not impossible given Google's resources and that this is a Google created tool!) to stop deleting the 24 hour chats, Google had other options. For example, they could make a good faith effort to ensure that critical chats took place in channels or group chats where the history setting was enabled. But instead it seems they made an effort to move chats away from there. > where would cause irreparable damage to the common offering both internally and externally. I think you'll find that "being able to comply with the law" is generally seen as a positive. It's actually a feature that Google touts quite highly in the contrext of Google Workspace. :) Also note that this is something that was totally supported by their chat platform when history was enabled, and if you read the PDF, a constant theme is people upset because they were being forced to avoid newer features (like threads) because you couldn't make it delete chats that should be preserved if you were using threads. So rather than the legal system asking Google to damage their offering by adding a feature to it, we see Google asking staff to use a less capable offering because it was lacking the feature. It is certainly possible that a court may find that what Google did here is okay; that they didn't have an obligation to either not delete relevant conversations that took place in the channels with extended history disabled or hold those conversations in channels with extended history enabled. But...I wouldn't bet on it. And note that this also came up with the Musk/Twitter saga: > In McCormick’s letter today, she says she believes Musk did use Signal. “I am forced to conclude that it is likely Defendant’s custodians permitted the automatic deletion of responsive Signal communications between them and possibly others, and that those communications are irretrievably lost,” she writes. Twitter has requested sanctions against Musk, but McCormick hasn’t decided on whether she’ll sanction him yet. (Source: https://www.theverge.com/2022/10/5/23389568/musk-twitter-signal-deleted-messages-judge-ruling https://www.theverge.com/2022/10/5/23389568/musk-twitter-sig...) Musk responded by folding and aggreeing to purchase Twitter after all. And although there were a number of factors there (his case was horrible) a decent chunk was his usage of automatically deleting Signal chats for communications he had an obligation to retain. And whether or not this was okay wasn't ever really an open question; the questions were whether it happened, and if so, what sort of penalties Musk would have to suffer. > It would be a large precedent. Not so much.

deleted 3y ago

[deleted]

Paul-Craft 3y ago

This is just Google up to their old tricks again. They used to have an internal practice to add company lawyers to emails in order to try and make them privileged and undiscoverable: https://archive.is/1Bwgs https://archive.is/1Bwgs I don't know what the aftermath of the DoJ action mentioned in the link was, but I hope they were sanctioned in some way for it, just like I hope they get sanctioned for what they're trying to do here.

zootboy 3y ago
There was a recent supreme court case where they discussed this exact practice: https://www.oyez.org/cases/2022/21-1397 https://www.oyez.org/cases/2022/21-1397 From listening to the oral arguments, the court didn't seem to think that just CC'ing a lawyer automatically made the full communication privileged.
- seanhunter 3y ago
  Yup, as per my note in another thread this does not work and it's pretty dumb to think it will work. Privilege covers you providing facts so they can give advice and them giving advice. It doesn't cover anything else and adding a lawyer to a thread like that is just sketchy and looks evasive.
  - JWLong 3y ago
    “If simply having a lawyer present made a conversation privileged, then every mobster would pay one to follow them everywhere and sit in the corner of the room.” ~ Opening Arguments
- bryanrasmussen 3y ago
  I get the idea that if Google was delivering drugs to someone they would start off the conversation: "Are you a cop? Cause you have to tell me if you are!"
- ajb 3y ago
  You should be a bit wary of reading oral arguments as definitive, because the judges have a history of applying the more aggressive questioning to the side they ultimately agree with, just to make sure it's solid.

auggierose 3y ago

Not familiar with the details in this case, but it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, and everyone who uses it assumes it is off-the-record. Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? I don't think so, just as a court order doesn't apply to a live conversation which isn't recorded. Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Doesn't seem to be a clear-cut case to me.

ranting-moth 3y ago
It's very clear-cut. The topic is about deleting data. There's a massive difference in deleting records that did exists vs. records that never existed in the first place. The former is deleting data, the second case isn't.
- auggierose 3y ago
  I think I explained why it isn't that clear-cut, even when it is about deleting data. I guess that's why there are courts, and not only HN opinions.
  - nolok 3y ago
    It is clear cut. Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper. Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day. Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold. You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.

tyingq 3y ago

The loophole for face-to-face and telephone conversations is sort of interesting. I wonder if it remains because it historically wasn't historically practical to record...or solely because of eavesdropping/consent laws. Or some combination of the two? What if you were using a 3rd party chat with no history capability at all...where does that fall?

devrand 3y ago
AFAIK you have an obligation to retain records if under a legal hold, but you do not have an obligation to create records. So if your company policy is to record all phone calls, then yes, you would need to retain and provide those records as part of discovery. However, you cannot be obligated to start recording phone calls in order to make them discoverable. > What if you were using a 3rd party chat with no history capability at all...where does that fall? This somewhat gets to the heart of what Google was doing. There's two parts to this: 1. There's always some amount of history with chat software as it's a async communication mechanism. Maybe it's minutes, hours, or days. But let's say there's no feature to retain messages for longer. If you're under a legal hold, are you obligated to retain these? 2. Now let's say the software does also have a history feature but it's optional that you can switch on, but you default it to off for everyone. If you're under a legal hold, are you now obligated to turn it on? Or this is analogous to being forced to start recording phone calls. Regardless of why Google was doing this, it's an interesting legal question and one that I'm not sure has much case law on. > The loophole for face-to-face and telephone conversations is sort of interesting. I wonder if it remains because it historically wasn't historically practical to record...or solely because of eavesdropping/consent laws. I think it's largely because you had to go out of your way to record a phone call. You generally needed to get an extra device, wire it up, get tapes, etc. In the modern era of video calls this is a built-in feature available at the click of a button. Which raises the question: if you're under a legal hold are you compelled to enable that by default?
- tyingq 3y ago
  >Which raises the question: if you're under a legal hold are you compelled to enable that by default? Right...similar for plain old telephone calls now too. That is, many VOIP PBX systems have a simple way to enable recordings.

the_optimist 3y ago

Same thing that happened to Hillary Clinton’s emails. In fact, ”a computer technician” introduced the email deletion policy after a subpoena was issued. Remind me is how Google did something horrific here, must be some dastardly “computer technicians.”

Ferret7446 3y ago

That's a dangerous path. It implies that anything that so much as touches a computer must be preserved for the government. There absolutely should be a category for data to be transmitted with the understanding that it will not be preserved. Otherwise, you will just push people to use analog communication channels (or legal arguments around "what is a record", "what about E2E encrypted", "do debug logs count", etc), and for what? No one wins.