May 16, 2023

When Instant Messages Need to Last

Taking a break from our focus on trademark and copyright lawsuits, let’s look at a current high-profile case raising an issue that impacts all sorts of litigation — the obligation to preserve documents, including ephemeral messaging like online chats.

Why does this matter? In litigation, the discovery process requires each side to preserve documents and other materials relevant to the lawsuit so they can be provided to the opposing side. This obligation is triggered as soon as a party knows that litigation might happen. (We’re simplifying, but that’s the gist.) When a litigation starts, companies will often put in place a “litigation hold,” alerting employees who might have relevant information that they have to preserve documents. A litigation hold will also generally involve overriding the processes that might ordinarily delete emails, documents, etc. 

Failure to preserve or provide these materials can have serious consequences. In extreme cases, a court will dismiss a plaintiff’s case or find against a defendant that has failed to comply with its obligation to preserve documents. 

That brings us to a current lawsuit against Google brought by consumers, state attorneys general and app developers, claiming the omnipresent tech giant illegally monopolized the market for Android apps. During discovery, the plaintiffs noticed that Google hadn’t produced its employees’ instant messages related to the case. When the plaintiffs raised this issue, Google made some surprising revelations — its internal chats are generally deleted after 24 hours and it hadn’t suspended this automatic deletion for employees subject to the litigation hold in this case. Instead, Google allowed them to decide whether or not to preserve their instant messages.

Google is certainly no stranger to litigation holds. The company specifically trains employees to “communicate with care” because of the possibility of communications becoming public through discovery, and automatically preserves company emails that are subject to a litigation hold. And obviously, one of the world’s most powerful tech companies was perfectly capable of turning off auto-delete for the specific employees involved. Instead, Google simply told them not to discuss topics related to the litigation on chat but, if they did, to retain those specific chats if they felt the content was relevant. It was all self-policed: Google didn’t do anything to require employees to save chats or ever check to see if employees were complying. Only after the plaintiffs raised the issue during discovery did Google change its settings so that chats were saved by default. 

In its attempt at explanation, Google argued that employees’ chats were mostly used for social purposes, even though the record (and common knowledge) clearly indicates that workplace chats are constantly used for substantive business purposes which, in this case, included matters relevant to the antitrust litigation. 

The court, understandably, was not impressed by this argument. It concluded that as a result of Google’s lax policies, employees failed to save chats related to this litigation. The court also found that since employees were aware chats weren’t being preserved, they freely engaged in “off the record” convos related to the case knowing they couldn’t be used in court. The judge specifically rebuked Google for allowing employees to decide which chats could be used as evidence, pointing out that staffers probably wouldn’t be capable of making those judgments. 

Ultimately, the court was very concerned about the intentionality of Google’s conduct, concluding that 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.’” The judge made it clear he believed Google was trying to destroy pertinent evidence, and directed Google to pay plaintiffs’ fees in connection with bringing this motion. The court also said that it would set a non-monetary sanction against Google at the end of discovery when the court is in a position to better determine what has been lost.

Overall lesson here: if you’re in a litigation, immediately start preserving all documents related to the case, including chats, just as you would to any other type of messages.