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Justice Department says Google destroyed evidence related to antitrust lawsuit

wsj.com

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Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#91

Post by IncRnd »

freejazz wrote: post #68
vagabund wrote: post #38

Earlier quoted context omitted.

Somebody at Google made the conscious decision that enacting this intentionally defective policy -- in doing so, attempting to foist liability for data custody upon individual employees -- and fighting the inevitable objections to it was a preferable course of action to actually preventing their employees from discussing anything that might be used against them in the suit. It's clever, but it doesn't reflect fondly…

I don't think they were trying to shift liability, I think they were trying to make sure all the data was deleted, without themselves having to hit delete. It's their counsel's culpability that is being protected, i.e. the difference between being negligent or willful.

From the article, "The DOJ said in a court filing Thursday that Google trained employees on the benefits of using “off the record chats."

They were trying to avoid liability not transfer it.

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#92

Post by gmd63 »

freejazz wrote: post #68
vagabund wrote: post #38

Earlier quoted context omitted.

Somebody at Google made the conscious decision that enacting this intentionally defective policy -- in doing so, attempting to foist liability for data custody upon individual employees -- and fighting the inevitable objections to it was a preferable course of action to actually preventing their employees from discussing anything that might be used against them in the suit. It's clever, but it doesn't reflect fondly…

I don't think they were trying to shift liability, I think they were trying to make sure all the data was deleted, without themselves having to hit delete. It's their counsel's culpability that is being protected, i.e. the difference between being negligent or willful.

When are regulators and enforcers going to wise up to this "clever" game of disguising malicious behavior as negligence? I've seen so many people strategically play dumb that at this point I don't believe whether or not a violation was accidental should have any weight on the punishment.

Nature doesn't care whether our immune systems accidentally slack off, or whether we accidentally didn't protect our cities from a flood. Why would we provide an incentive structure for people to act like they are stupid?

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#93

Post by lesuorac »

omginternets wrote: post #31
choppaface wrote: post #17

And they also teach employees how to Communicate with Care: always CC a lawyer and ask a question. https://arstechnica.com/tech-policy/2022/03/google-routinely... The issue here is not so much that Google is playing these games but how this draws energy away from OTHER games-- i.e. shipping and keeping alive new products and offering real customer service for existing ones.

I’m curious, what is the legal process for dealing with manufactured privilege?

The court can appoint somebody to verify that the documents in question actually deserve privilege. Ex. Mar-a largo documents [1]

[1]: https://en.wikipedia.org/wiki/Special_master#The_Mar-a-Lago_...

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#94

Post by IncRnd »

shadowgovt wrote: post #5
2OEH8eoCRo0 wrote: post #3

https://www.courtlistener.com/docket/18552824/512/1/united-s... > The Federal Rules of Civil Procedure required Google to suspend its auto-delete practices in mid-2019, when the company reasonably anticipated this litigation. Google did not. Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats. Few, if any, document custodians did so. That is, few cu…

It sounds like there were disagreements between Google's lawyers and the DOJ lawyers on the scope of the hold and what constitutes "reasonable."

Don't change the goalposts. It's not about collectively agreeing on what is reasonable.

From the article: "Federal rules for litigation required Google to suspend deleting chats in mid-2019, when Google would have anticipated the antitrust lawsuit, the government said. But Google continued using “off the record chats” even after the lawsuit was filed, the DOJ’s attorneys wrote."

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#95

Post by voakbasda »

theptip wrote: post #44
saagarjha wrote: post #11

I think we’re going to see another cycle in tech, much like the one where they realized that people kept saying illegal things in a documented fashion and this kept getting them into trouble leading to short retention policies. Except this time it will probably involve mandatory court-ordered retention which will further push people towards dropping “let’s discuss this offline” comments and trying to hide their conve…

Not just tech; we're seeing this pressure in finance too. Matt Levine joked about this recently: > It really is wild that the SEC’s official position is now that it is illegal to “use unofficial communications to do things like cut deals, win clients or make trades.” “Conduct their communications about business matters within only official channels”! Imagine if that was really the rule! You can’t have lunch with a cl…

I'd be completely in favor of this... if first the politicians, lawmakers, and bureaucrats were all held to the same standard.

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#96

Post by dragonwriter »

shadowgovt wrote: post #5
2OEH8eoCRo0 wrote: post #3

https://www.courtlistener.com/docket/18552824/512/1/united-s... > The Federal Rules of Civil Procedure required Google to suspend its auto-delete practices in mid-2019, when the company reasonably anticipated this litigation. Google did not. Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats. Few, if any, document custodians did so. That is, few cu…

It sounds like there were disagreements between Google's lawyers and the DOJ lawyers on the scope of the hold and what constitutes "reasonable."

The consequences of being found to have destroyed evidence is one of the reasons why organizations generally treat litigation / potential litigation holds broadly. (Also, unless you know there is no possible way something could be beneficial, you never know what, touching on the broad issue of litigation, you might actually need yourself, e.g., to rebut an argument from the other side.)

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#97

Post by raincom »

2OEH8eoCRo0 wrote: post #3

https://www.courtlistener.com/docket/18552824/512/1/united-s... > The Federal Rules of Civil Procedure required Google to suspend its auto-delete practices in mid-2019, when the company reasonably anticipated this litigation. Google did not. Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats. Few, if any, document custodians did so. That is, few cu…

This is done with “off the record conversations” between senior execs and the legal counsel”. This is how big boys operate!

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#98

Post by fencepost »

etothepii wrote: post #12
Supermancho wrote: post #8

Earlier quoted context omitted.

> Google did not. Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats. Google didn't do it, it was those other individuals who defied the court order. Uh huh.

If true even a one or two day prison sentence for 5 or 6 Googlers would make sure this never happened again. One assumes that if anyone had asked legal they would have been told they must switch off auto-delete. Lawyers aren't stupid they value their licence far more than their current job. I am highly doubtful there would be any written advice that said anything other than, if in doubt save.

even a one or two day prison sentence for 5 or 6 Googlers would make sure this never happened again.

Eh, utterly impractical but I still think there should be a way to "jail" corporations. Easy - "Your offices are closed for the duration of the sentence. Your systems are shut down for the duration. Automatic payments set up in advance can continue as long as there are funds in your bank accounts, but your staff will not be monitoring them. You can appoint someone external to the organization to take care of some obligations."

Survivable as a business for short enough sentences (effectively comparable to a devastating ransomware attack), but mighty painful and anyone involved will absolutely feel the wrath of ownership/shareholders.

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#99

Post by asah »

megous wrote: post #42

"If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place." ~Eric Schmidt lol

except that the harmless written word is notoriously easy to quote out of context and otherwise use "against you" in court.

At google's scale, it's virtually impossible to NOT have mountains of "incriminating" conversations.

Also, it seems arbitrary that OTR chat should be recorded but hallway conversations and phonecalls are ok to delete...

Re: Justice Department says Google destroyed evidence related to antitrust lawsuit

#100

Post by avalys »

This is regulatory and legal overreach.

Yes, there are laws about preserving evidence and records. However, these laws haven't been updated to reflect how office communication has changed over the years. No one would propose, circa 1950, that companies must record every conversation between two people in the office for regulatory compliance or lawsuit discovery, etc. purposes.

But effectively, that's what retention requirements for chat messages amount to.

What is the principled policy argument (ignoring practicality) for requiring retention of chat messages, but not requiring every employee to wear a body camera that permanently records every work-related interaction they have IRL?

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