A significant Federal Court opinion regarding preservation of data and transparency in discovery was released in late March of this year. This decision highlights several important aspects of civil discovery as it relates to modern communication tools, principally the litigants’ obligation to preserve and produce those documents and the attorneys’ duty of candor to the Court.
Chat messages, and other short messaging platforms, have become a common form of business communication, especially during the pandemic when many workers were forced to work remotely. Microsoft Teams saw an 800% increase in daily use between March and June 2020.1 There are now an estimated 300 million daily users of Microsoft Teams.2 This ruling highlights the need to take appropriate steps to identify and preserve responsive documents and ESI in whatever form they are generated, and may require the preservation of data that may previously have been considered entirely transient and irrelevant.
In the multi-district litigation IN RE GOOGLE PLAY STORE ANTITRUST LITIGATION Case No. 21-md-02981-JD, state attorneys general and various other parties allege that Google’s Play Store policies regarding distribution of apps on Android devices violate antitrust law. Recognizing a duty to preserve evidence, Google issued litigation holds to hundreds of employees, collected electronically stored information (ESI) from dozens of custodians, and produced a total of 13 TB of data.3 But as discussed below, those actions alone were not enough to prevent Google from monetary sanctions for discovery missteps.
The issue before the court was whether Google adequately preserved “communications that were exchanged internally on its Chat messaging system.”4 As discovery progressed and plaintiffs examined Google’s document productions, it became clear that very few chat messages were produced. Following evidentiary hearings, the Court ordered additional discovery including the production of tens of thousands of chat messages from hundreds of custodians.5 After review of this material, the court determined that Google did not properly preserve Chat messages or inform the court and opposing counsel of the steps taken to accomplish the same.
Google’s Chat messages had a default retention period of 24 hours.6 However, users were permitted to turn the history on to preserve messages in their account, or forward the Chat messages to their inbox.7 Counsel for Google instructed its employees on legal hold to preserve case related communications from those Chat messages. However, the Court’s conclusion was that neither Google nor its counsel monitored or audited whether employees were actually preserving those Chat messages as instructed.8
The Court found that Google was aware of this practice and neglected to properly inform the Court or opposing counsel about the auto-delete function and custodians having responsibility over the preservation of Chats. The Court expressed frustration and questioned why it took Google’s counsel two years to identify details surrounding the Chat message retention.
The 2015 amendments to FRCP 37(e) raised the bar on sanctionable discovery conduct when ESI is lost or destroyed and “cannot be restored or replaced through additional discovery.”9 This is the underlying issue of the Google case: Google’s failure to ensure the auto-delete function was turned off in a situation where the material should have been preserved and is now unrecoverable. Judge Donato relied upon guidance outlined in the revised Rule 37(e) to compel Google to produce additional Chat messages. When that proved insufficient, the Court determined that sanctions became a necessary remedy because the Chat messages should have been preserved and were not. The Court’s conclusion was that due to that failure to preserve, information was lost that could not be replaced by additional discovery.10
- Counsel should investigate the location of potentially relevant ESI and ensure that proper steps are taken to preserve and produce the same;
- Be mindful of the use of new age communication platforms, whether approved and supported by corporate IT or not. Be prepared to discuss the ramifications of such communication platforms with internal resources and outside counsel;
- Understand what your policies say about the use and retention of the communication platforms. If employees use short messaging platforms like Google Chat, Microsoft Teams or Slack for substantive business purposes, ensure that someone determines whether the information residing there could be relevant to a case; and
- Compile information from internal IT resources to understand options and timing for removal of auto-delete feature, as the failure to remove the auto-delete feature from your company’s communication tools could be grounds for sanctions.
1 https://www.businessofapps.com/data/microsoft-teams-statistics/ (last accessed 7/11/2023)
3 Lienard, K. (2023, March 15). Enforcers Say Recovered Chats Show Google Hid Evidence. Law360. https://www.law360.com/articles/1586150
4 In re Google Play Store Antitrust Litigation., No. 21-md-02981-JD, 2023 WL 2673109 at *16 (N.D. Cal. March 28, 2023).
5 Atkins, D. (2023, January 31). 'Why Did You Sit On This?' Judge Slams Google Over Chats. Law360, https://www.law360.com/articles/1571118/
6 2023 WL 2673109. at *11
7 2023 WL 2673109. at *7
8 2023 WL 2673109. at *9
9 Fed. R. Civ. Proc. 37(e)