4 ms·

You should note you're quoting the DOJ's argument, not a finding of fact. Google seems to be arguing that chats are different than other documents (informal and

You should note you're quoting the DOJ's argument, not a finding of fact. Google seems to be arguing that chats are different than other documents (informal and ephemeral, I guess?) and default auto-delete is reasonable for them. Deciding that (and if it's worth sanctions if Google is wrong) is literally what's being asked of the judge.

bragr 2y ago
You're correct that the judge hasn't ruled yet. However, not very many people, lawyers or otherwise, seem to be buying what Google is selling here. These kinds of chats are routine in discovery and disappearing messages like on Signal have regularly gotten people in trouble with the courts. Google's argument seems to boil down to they are special because reasons? And if they were so certain it was permissible, they'd still be doing it.
- lokar 2y ago
  Most (all?) cases I’ve seen are in finance where the SEC, FINRA, etc has special rules that call out text messaging specifically.
  - deleted 2y ago
    [deleted]
  - ameister14 2y ago
    I've seen a few in district courts related to Rule 37(e)(2) and signal in particular.
  - noinsight 2y ago
    Here’s our friends at Amazon vs FTC: https://www.seattletimes.com/business/amazon/jassy-bezos-other-amazon-execs-used-signal-messaging-app-a-problem-for-ftc/ https://www.seattletimes.com/business/amazon/jassy-bezos-oth...
BeetleB 2y ago
> Google seems to be arguing that chats are different than other documents (informal and ephemeral, I guess?) and default auto-delete is reasonable for them. My company has a default auto-delete for our email Inbox. Yet, we have all been trained to retain the emails (by moving them to a folder) if notified of a relevant legal event. I don't know if in practice I have to manually save them or whether IT will just disable autodelete on my account. In any case, the message is clear: Autodelete is not permissible under such circumstances. Sorry Google. Nice try.
- refulgentis 2y ago
  In my org at Google, if you were under a legal hold, you were told to turn off retention for all conversations. It was framed as "saving work for people who have to review conversations" (lol) My org wasn't well-managed, lot of nepotism, promoting people who couldn't organize to save their life, but were good company men, too good. They saw having to have history off as a status badge because they saw higher ups did. They even would independently escalate it from there. Towards the end of my tenure, a couple of them acted like it was obvious and mandatory not to name people in meeting notes. Such a strange place.
  - Teever 2y ago
    Name and shame. Who specifically told you to turn off retention for all conversations?
    - refulgentis 2y ago
      0 point in sharing, unfortunately. I don't think they weren't hiding anything important, certainly not for Search, and it'd play into their conception of the situation to name or do anything other than get far away, as soon as possible. The bitter lesson from 7 years there was people are tribal and protect their own, everywhere. People regressed the higher up they got and longer they were there. It was the tip of the iceberg in terms of conduct you think managers would care about. I dealt with what happened by smiling and nodding, not taking the dare to tell HR, telling a non-direct manager exactly once, and leaving. At the end of the day, it's just a good ol' boys club with everyone trying to just get through one more day. Questioning is complaining is lack of cooperation is not a team player.
mbrumlow 2y ago
This is the problem with the digital world. To me, a slack message or chat message is the digital equivalent to me going to your desk or talking to you at lunch in person. Now we live in a digital world where because we can, we are now being told to record. How would this be any different than the courts demanding that all conversations be recorded via audio recording when not using a chat application. I think the fair trade off is “if i have the document, then I will produce it” and a default policy of delete after x time would be tested no different than if you or I had a conversation in person.
- ameister14 2y ago
  >To me, a slack message or chat message is the digital equivalent to me going to your desk or talking to you at lunch in person. To some people, posting on a public facebook wall is likewise the digital equivalent of talking to someone at lunch in person. Where is the line? >I think the fair trade off is “if i have the document, then I will produce it” and a default policy of delete after x time would be tested no different than if you or I had a conversation in person. The purpose is to get the truth of the dispute, not prevent liability for people acting badly. Your purpose for not having courts see evidence of wrongdoing is so that what, things are better for the wrongdoers? If your argument is feasibility or removing the recording element at all, I'd understand, but the thing is already recorded. >Now we live in a digital world where because we can, we are now being told to record. How would this be any different than the courts demanding that all conversations be recorded via audio recording when not using a chat application. It'd be different because courts aren't demanding the conversations be recorded at all; that's just the way things are working. If you worked at a company where all conversations are recorded and you're on camera all the time, you'd have to preserve those too.
  - everforward 2y ago
    Facebook is inherently different because of the broadcast style of updates rather than targeted messaging. I don't think the intent of usage matters as much of the intent of the system. Facebook statuses are designed to be fairly public. > The purpose is to get the truth of the dispute, not prevent liability for people acting badly. Your purpose for not having courts see evidence of wrongdoing is so that what, things are better for the wrongdoers? If your argument is feasibility or removing the recording element at all, I'd understand, but the thing is already recorded. The purpose of not recording everything is to allow businesses (read: the people within them) to function efficiently without having to worry that anything and everything they say could be dragged into the record on a lawsuit. Also to encourage people to put problems on the record, paradoxically. I work remotely, meaning face-to-face conversations are out of the question. I'm rapidly running out of ways to communicate that aren't on the record, which poses a communication problem for the business and inhibits dealing with problems that could lead to a lawsuit. In a world where chats aren't part of the eternal record, I can pop in and say "hey, such and such feature seems like it has a security/privacy risk, we should take a look at that". The communication is valuable, and the business is now aware of the problem. In a world with eternal chat records, nobody wants me to point that out unless we are ready to deal with it immediately. If I point it out, the business schedules it to be handled in a quarter or two, and they get hacked in the meantime then my chat message is on the record as evidence that the business was aware of the problem and "did nothing". Everyone would prefer that I had said nothing, because the business' liability is diminished if they can say they were unaware of the problem. The underlying reality here is that business do not want their problems on public record, and will encourage their employees to communicate using non-recorded means or, failing that, to not communicate at all. It would be legally preferable to ship a product full of issues the business is unaware of than to ship a product with a single issue that the business is on record knowing about. Requiring recording of all communications just encourages the business to not communicate internally, leading to the exact same problems recording was supposed to prevent. Our legal system does not reward recording communications in the least, it actively penalizes doing so. We're trying to strong arm businesses into doing something against their own best interests, and I'm doubtful that's a productive line of action.
1vuio0pswjnm7 2y ago
"You should note you're quoting the DOJ's argument, not a finding of fact." Why? The facts quoted in the parent comment, namely that Google destroyed _potential_ evidence, are not in dispute. Google has never denied that it destroyed chats after anticipating litigation in 2019. Because, surprise, that's what it did. In violation of the federal rules, Google destroyed chats that should have been preserved for potential discovery. This is not a DOJ argument. It is a fact. DOJ may use this fact in its arguments. We can verfiy this by looking at Google's latest response. If the parent comment's quote was a "DOJ argument" then Google should be countering it by denying it destroyed potential evidence. That is not what Google argues. Google is arguing (a) the destruction was not an _intentional_ attempt to conceal information from the DOJ and (b) the information destroyed did not contain any _relevent_ evidence.^1 Of course it's impossible to resolve the issue presented by (b) because the information has been destroyed. Google is essentially saying, "Trust us, there wasn't anything relevant in those chats." The DOJ cannot "prove" the chats contained relevant evidence because it cannot see the chats; Google destroyed them. Does this situation created by _Google destroying the chats_ play in Google's favour? What do readers think? 1. These quotes come from Google's latest response.^2 Italics added are mine. "356. Plaintiffs seek to rewrite history in their contention that Google's long-time chats retention practices-of which they were on notice since the beginning of this litigation- evidence the purposeful "destruction" of evidence. DOJ Br. at 75-79. And, recycling arguments from their unsuccessful sanctions motion filed in Spring 2022 (see May 12, 2022, Minute Order), Plaintiffs spin instructions to Google employees to use care in their written communications into supposed "concealment" of evidence. DOJ Br. at 75-79. There is no basis, in fact or law, to impose sanctions on Google. Each of the Google witnesses who was questioned on these matters at trial confirmed that there was no intentional destruction of evidence, and no evidence was presented that could support the conclusion that Google concealed or destroyed relevant evidence with the intention of gaining some advantage in the litigation. Google has produced millions of documents, including all manner of formal business documents as well as more informal communications such as email, and there is no reason to believe that the record before the Court is anything less than complete." "358. Far from supporting Plaintiffs' motion for sanctions related to Google's Chat retention policies, the trial testimony confirmed that the motion is without merit. In particular, there is no reason to believe that history-off chats created after notice of the DOJ investigation in 2019 and not otherwise preserved and produced contained material information of any significance to resolving Plaintiffs' claims. Nor is there any evidence that there was any intentional effort by Google to deprive Plaintiffs of the use of information in this litigation; after all, Google disclosed to Plaintiffs the very approach to chats preservation that they now challenge long before Plaintiffs filed their original motion. See ECF No. 529 at 7-17; ECF No. 576-1 at 1-2.16 359. Plaintiffs' proposed findings obfuscate these facts, and are designed to suggest- without supportive evidence, let alone actual proof-that some relevant information was lost." 2. https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.912.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...
hulitu 2y ago
> Google seems to be arguing that chats are different than other documents (informal and ephemeral, I guess?) and default auto-delete is reasonable for them. Yes but only if they are their chats. Your chats are still used for your profiling. In some countries, disregarding laws is a fellony.

bragr 2y ago

You're correct that the judge hasn't ruled yet. However, not very many people, lawyers or otherwise, seem to be buying what Google is selling here. These kinds of chats are routine in discovery and disappearing messages like on Signal have regularly gotten people in trouble with the courts. Google's argument seems to boil down to they are special because reasons? And if they were so certain it was permissible, they'd still be doing it.

lokar 2y ago
Most (all?) cases I’ve seen are in finance where the SEC, FINRA, etc has special rules that call out text messaging specifically.
- deleted 2y ago
  [deleted]
- ameister14 2y ago
  I've seen a few in district courts related to Rule 37(e)(2) and signal in particular.
- noinsight 2y ago
  Here’s our friends at Amazon vs FTC: https://www.seattletimes.com/business/amazon/jassy-bezos-other-amazon-execs-used-signal-messaging-app-a-problem-for-ftc/ https://www.seattletimes.com/business/amazon/jassy-bezos-oth...

BeetleB 2y ago

> Google seems to be arguing that chats are different than other documents (informal and ephemeral, I guess?) and default auto-delete is reasonable for them. My company has a default auto-delete for our email Inbox. Yet, we have all been trained to retain the emails (by moving them to a folder) if notified of a relevant legal event. I don't know if in practice I have to manually save them or whether IT will just disable autodelete on my account. In any case, the message is clear: Autodelete is not permissible under such circumstances. Sorry Google. Nice try.

refulgentis 2y ago
In my org at Google, if you were under a legal hold, you were told to turn off retention for all conversations. It was framed as "saving work for people who have to review conversations" (lol) My org wasn't well-managed, lot of nepotism, promoting people who couldn't organize to save their life, but were good company men, too good. They saw having to have history off as a status badge because they saw higher ups did. They even would independently escalate it from there. Towards the end of my tenure, a couple of them acted like it was obvious and mandatory not to name people in meeting notes. Such a strange place.
- Teever 2y ago
  Name and shame. Who specifically told you to turn off retention for all conversations?
  - refulgentis 2y ago
    0 point in sharing, unfortunately. I don't think they weren't hiding anything important, certainly not for Search, and it'd play into their conception of the situation to name or do anything other than get far away, as soon as possible. The bitter lesson from 7 years there was people are tribal and protect their own, everywhere. People regressed the higher up they got and longer they were there. It was the tip of the iceberg in terms of conduct you think managers would care about. I dealt with what happened by smiling and nodding, not taking the dare to tell HR, telling a non-direct manager exactly once, and leaving. At the end of the day, it's just a good ol' boys club with everyone trying to just get through one more day. Questioning is complaining is lack of cooperation is not a team player.

mbrumlow 2y ago

This is the problem with the digital world. To me, a slack message or chat message is the digital equivalent to me going to your desk or talking to you at lunch in person. Now we live in a digital world where because we can, we are now being told to record. How would this be any different than the courts demanding that all conversations be recorded via audio recording when not using a chat application. I think the fair trade off is “if i have the document, then I will produce it” and a default policy of delete after x time would be tested no different than if you or I had a conversation in person.

ameister14 2y ago
>To me, a slack message or chat message is the digital equivalent to me going to your desk or talking to you at lunch in person. To some people, posting on a public facebook wall is likewise the digital equivalent of talking to someone at lunch in person. Where is the line? >I think the fair trade off is “if i have the document, then I will produce it” and a default policy of delete after x time would be tested no different than if you or I had a conversation in person. The purpose is to get the truth of the dispute, not prevent liability for people acting badly. Your purpose for not having courts see evidence of wrongdoing is so that what, things are better for the wrongdoers? If your argument is feasibility or removing the recording element at all, I'd understand, but the thing is already recorded. >Now we live in a digital world where because we can, we are now being told to record. How would this be any different than the courts demanding that all conversations be recorded via audio recording when not using a chat application. It'd be different because courts aren't demanding the conversations be recorded at all; that's just the way things are working. If you worked at a company where all conversations are recorded and you're on camera all the time, you'd have to preserve those too.
- everforward 2y ago
  Facebook is inherently different because of the broadcast style of updates rather than targeted messaging. I don't think the intent of usage matters as much of the intent of the system. Facebook statuses are designed to be fairly public. > The purpose is to get the truth of the dispute, not prevent liability for people acting badly. Your purpose for not having courts see evidence of wrongdoing is so that what, things are better for the wrongdoers? If your argument is feasibility or removing the recording element at all, I'd understand, but the thing is already recorded. The purpose of not recording everything is to allow businesses (read: the people within them) to function efficiently without having to worry that anything and everything they say could be dragged into the record on a lawsuit. Also to encourage people to put problems on the record, paradoxically. I work remotely, meaning face-to-face conversations are out of the question. I'm rapidly running out of ways to communicate that aren't on the record, which poses a communication problem for the business and inhibits dealing with problems that could lead to a lawsuit. In a world where chats aren't part of the eternal record, I can pop in and say "hey, such and such feature seems like it has a security/privacy risk, we should take a look at that". The communication is valuable, and the business is now aware of the problem. In a world with eternal chat records, nobody wants me to point that out unless we are ready to deal with it immediately. If I point it out, the business schedules it to be handled in a quarter or two, and they get hacked in the meantime then my chat message is on the record as evidence that the business was aware of the problem and "did nothing". Everyone would prefer that I had said nothing, because the business' liability is diminished if they can say they were unaware of the problem. The underlying reality here is that business do not want their problems on public record, and will encourage their employees to communicate using non-recorded means or, failing that, to not communicate at all. It would be legally preferable to ship a product full of issues the business is unaware of than to ship a product with a single issue that the business is on record knowing about. Requiring recording of all communications just encourages the business to not communicate internally, leading to the exact same problems recording was supposed to prevent. Our legal system does not reward recording communications in the least, it actively penalizes doing so. We're trying to strong arm businesses into doing something against their own best interests, and I'm doubtful that's a productive line of action.

1vuio0pswjnm7 2y ago

"You should note you're quoting the DOJ's argument, not a finding of fact." Why? The facts quoted in the parent comment, namely that Google destroyed _potential_ evidence, are not in dispute. Google has never denied that it destroyed chats after anticipating litigation in 2019. Because, surprise, that's what it did. In violation of the federal rules, Google destroyed chats that should have been preserved for potential discovery. This is not a DOJ argument. It is a fact. DOJ may use this fact in its arguments. We can verfiy this by looking at Google's latest response. If the parent comment's quote was a "DOJ argument" then Google should be countering it by denying it destroyed potential evidence. That is not what Google argues. Google is arguing (a) the destruction was not an _intentional_ attempt to conceal information from the DOJ and (b) the information destroyed did not contain any _relevent_ evidence.^1 Of course it's impossible to resolve the issue presented by (b) because the information has been destroyed. Google is essentially saying, "Trust us, there wasn't anything relevant in those chats." The DOJ cannot "prove" the chats contained relevant evidence because it cannot see the chats; Google destroyed them. Does this situation created by _Google destroying the chats_ play in Google's favour? What do readers think? 1. These quotes come from Google's latest response.^2 Italics added are mine. "356. Plaintiffs seek to rewrite history in their contention that Google's long-time chats retention practices-of which they were on notice since the beginning of this litigation- evidence the purposeful "destruction" of evidence. DOJ Br. at 75-79. And, recycling arguments from their unsuccessful sanctions motion filed in Spring 2022 (see May 12, 2022, Minute Order), Plaintiffs spin instructions to Google employees to use care in their written communications into supposed "concealment" of evidence. DOJ Br. at 75-79. There is no basis, in fact or law, to impose sanctions on Google. Each of the Google witnesses who was questioned on these matters at trial confirmed that there was no intentional destruction of evidence, and no evidence was presented that could support the conclusion that Google concealed or destroyed relevant evidence with the intention of gaining some advantage in the litigation. Google has produced millions of documents, including all manner of formal business documents as well as more informal communications such as email, and there is no reason to believe that the record before the Court is anything less than complete." "358. Far from supporting Plaintiffs' motion for sanctions related to Google's Chat retention policies, the trial testimony confirmed that the motion is without merit. In particular, there is no reason to believe that history-off chats created after notice of the DOJ investigation in 2019 and not otherwise preserved and produced contained material information of any significance to resolving Plaintiffs' claims. Nor is there any evidence that there was any intentional effort by Google to deprive Plaintiffs of the use of information in this litigation; after all, Google disclosed to Plaintiffs the very approach to chats preservation that they now challenge long before Plaintiffs filed their original motion. See ECF No. 529 at 7-17; ECF No. 576-1 at 1-2.16 359. Plaintiffs' proposed findings obfuscate these facts, and are designed to suggest- without supportive evidence, let alone actual proof-that some relevant information was lost." 2. https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.912.0.pdf https://ia802501.us.archive.org/21/items/gov.uscourts.dcd.22...

hulitu 2y ago

> Google seems to be arguing that chats are different than other documents (informal and ephemeral, I guess?) and default auto-delete is reasonable for them. Yes but only if they are their chats. Your chats are still used for your profiling. In some countries, disregarding laws is a fellony.