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 recor

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?