“Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail”

In Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail (abajournal.com)(Aug. 8, 2024), Debra Cassens Weiss reported on an information governance issue: “A federal judge who ruled that Google is a monopolist declined to sanction the search engine for failing to preserve internal chat messages, even though he criticized its policies intended to keep bad evidence out of litigation.”

Ms. Weiss reported that the Hon. Amit P. Mehta said that: “The court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants….”

However, the court did not impose sanctions because the Judge “was able to rule on Google’s liability without presumptions that deleted chats were unfavorable to Google.”  Id.

Google’s information governance policy was reportedly to delete chat messages after 24 hours unless the default setting was changed to “history on.”  Id.  Ms. Weiss reported: “The policy continued even after Google received a hold notice during the investigative phase of the antitrust case.”

For a discussion of a similar policy, ephemeral messaging, see generally, “The Sedona Conference Commentary on Ephemeral Messaging,” 22 Sedona Conf. J. 435 (2021).

The ABA article states that Google also had a “Communicate With Care” policy requiring that lawyers be added to sensitive emails and it initially withheld tens of thousands of records as allegedly privileged.  Id.  Many were later deemed not to be privileged.  Id.; see Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV) – E-Discovery LLC (ediscoveryllc.com)  (May 16, 2022).

Additionally:

Google also advised employees to avoid using certain buzzwords in communications that included “markets,” “market share” or “dominance.” Workers were also advised to “avoid metaphors involving wars or sports, winning or losing.”

In a different case,  In Re Google RTB Consumer Privacy Litigation, 2024 WL 3642191 (N.D. Cal. Aug. 1, 2024), the court issued an “Order Re: Remaining Disputes Re: Google’s Privilege Log Claims.” The court wrote:

Neither side has offered a practical approach for resolving the parties’ disagreements concerning the potentially thousands of disputed privilege log entries without imposing an unreasonable burden on the Court. In this order and its prior orders, the Court has provided guidance and a framework for addressing the disputes that remain. However, unless there are disputes that can be resolved at a categorical level, or that require assessment of only a limited number of individual entries or documents, the Court is inclined to recommend referral to a special master, with each side to bear the expense of the master’s services in proportion to that side’s success or lack thereof on the merits—e.g., a party who prevails on 80% of the disputed privilege claims will be required to pay only 20% of the special master’s fees and expenses.

The Court directs the parties to reflect on how they wish to proceed, confer, and report their agreed or respective views in a joint report by August 16, 2024.

Id. at *5-6.