Litigation Holds Require Holding Onto Instant Communications

A U.S. District Court recently sanctioned Google for failure to preserve evidence after finding that Google inadequately preserved communications exchanged internally on their Google Chat systems. As a result, Google was ordered to cover the Plaintiff’s attorneys’ fees and costs in bringing the Rule 37 motion.

This is significant because this decision expands the scope of preservation required by a litigation hold to include instant messaging communications used in the workplace. Once that litigation hold is in place, there should be great care in monitoring each users’ preservation of their own messages to ensure that nothing is deleted – inadvertently or intentionally. Otherwise, a court may find that the party under the litigation hold intentionally failed to preserve such communications in order to disadvantage the opposing party.

Google Chat (“Chat”) is an instant messaging platform – similar to Microsoft Teams and Slack – which allows users to communicate one-on-one with other users or participate in groups with multiple users at one time. Chat users can send lengthy messages, upload images and documents into the Chat, create tasks and assign tasks to other members in the group’s thread.

Instant Message in the Workplace: An Electronic Employee Breakroom or Virtual Boardroom?

In its briefing, Google argued that Chat was “a social outlet akin to an electronic breakroom.” And therefore, such messages were outside of the litigation hold and did not need to be preserved. The Court found that the record “states otherwise” because Google employees routinely used Chat to discuss substantive business topics, including matters relating to the antitrust litigation. Thus, the Court held that Google Chat threads was more than just a virtual space for Google employees to shoot the breeze.

The Court’s finding on this point is important for two reasons. First, the Court’s finding recognizes instant messaging in the workplace as another channel of communication and therefore another source through which relevant information might be relayed during the litigation process. Second, given that instant messaging platforms are being used more frequently in the workplace to communicate about substantive business topics, the more likely it will be that instant messages will be required to be preserved in the event of a litigation hold.

Chat History: On-Again, Off-Again

In its decision, the Court dedicates a fair amount of page space to the fact that Google lied about preserving its employees’ chat history for purposes of a litigation hold and used this as the basis to find that Google intentionally destroyed evidence to disadvantage the Plaintiff, in violation of Federal Rules of Civil Procedure (FRCP) Rule 37.

The retention period for messages exchanged over Google Chat depend on a few features. First, Chat users have the option to turn their chat History “on” or “off.” In its , the Court stated that “History is off by default for all Chats among Google employees…” but Google also has the ability to change the History default to “on” for its employees.

Additionally, different types of Chats have different types of retention periods. For a one-on-one Chat with the History “off,” the Google chat messages are retained for 24-hour periods, after which point they are deleted forever and cannot be recovered.

In its decision, the Court pointed out that on February 7, 2023, Google informed the Court it would turn the history setting to “on” for Google Chat, on an interim basis, for all of its employees that had received a legal hold in the case, and that the employees would not have the ability to change the history to “off.” However, it appears that Google did not actually do as they promised because, when later confronted with their own statement, Google’s initial defense towards its lack of preservation of Chat messages was that it had “no ability no change default settings for individual custodians with respect to the chat history stetting.” In essence, the Court found Google’s defense to be a bold-faced lie.

The Court also observed the attitude of Google employees towards the litigation hold and pointed out that “Google employees who received a litigation hold in this case were unable or unwilling to follow Chat preservation instructions, and sometimes disregarded the instructions altogether.” These facts – along with details from testimony by Google employees – proved to the Court that Google had the capability to turn “on” the History for its employees’ Chat messages after the litigation hold was issued, Google employees knew of the litigation hold, understood the implications of the litigation hold and their responsibility to preserve all communications including the Chat messages, yet intentionally failed to do so.

Addressing the intentionality piece, the Court stated “Another major concern is the intentionality manifested at every level within Google to hide the ball with respect to Chat. As discussed, individual users were conscious of litigation risks and valued the ‘off the record’ functionality of Chat.”

The Court also addressed Google’s failure to engage in a discussion with Plaintiff’s about its preservation approach – particularly its approach to preserving Chat messages – and instead “chose to stay silent until compelled to speak by the filing of the Rule 37 motion.” In its closing paragraphs, the Court’s decision states, “Google intended to subvert the discovery process, and that Chat evidence was ‘lost with the intent to prevent its use in litigation’ and ‘with the intent to deprive another party of the information’s use in the litigation.’”

Takeaways

There are a few important takeaways – some of which have already been stated above.

First, recognize that as the use of instant messaging within organizations increases, so does the opportunity for those instant messages to be requested in the discovery process.

Second, when a litigation hold is placed on a business’ communications and that business uses an instant messaging platform to communicate anything remotely related to substantive business, those instant messages fall under the litigation hold and must be preserved. Failure to preserve these instant messages could be reason for a court to find that the business intentionally subverted the discovery process and intended to deprive another party with the information’s use in the litigation.

Third, during the discovery process, a propounding party should consider asking whether the responding party uses an instant messaging program in the workplace. If the answer is “yes,” the propounding party should consider requesting any instant messages that may be relevant to the litigation.

Fourth, although not directly addressed in this Court decision, it is worth considering what other avenues of communication could fall under a litigation hold at the preservation stage in litigation. For example, in a products liability case, could text messages or audio messages between the CEO of an automobile company and an engineer expressing concern over the safety of a vehicle’s design fall under the litigation hold? Or, taking this a step farther, what if two coworkers direct-message substantive work information to one another using Instagram videos which are, by default, designed to disappear after twenty-four hours? Recognizing that businesses are using more tools than just meetings, emails and phone calls to engage in substantive work conversations, one should think about how to preserve information from these tools if such information was put under a litigation hold.