Google “systematically destroyed” instant messaging chats every 24 hours, violating federal rules on preserving potentially relevant messages for legal proceedings, the Justice Department said in a statement made public Thursday.
As a result Google default to only save chats for 24 hours unless an employee chooses to include a story for the conversation, “for nearly four years, Google systematically destroyed an entire category of text messages every 24 hours,” the department wrote in the document.
According to the Justice Department, Google should have adjusted its default values in mid-2019 “when the company reasonably anticipated this litigation.” Instead, it relied on individual employees to decide when the chats were potentially relevant to future legal proceedings, the department said.
“Few, if any,” according to the Department of Justice.
Meanwhile, Google “falsely” told the government that it had “imposed a legal hold” that “suspends automatic removal,” investigators say. The government added that “at every step, Google confirms that it stores and searches all potentially relevant written communications.”
The data deletion continued until this month, when the government said it would file a motion for sanctions and an evidentiary hearing, investigators said. At that point, according to the Justice Department, Google committed to “permanently enable history.”
A Google spokesperson said in a statement that the company’s representatives “vehemently deny the DOJ’s claims. Our teams have worked diligently over the years to respond to requests and lawsuits. In fact, we have produced more than 4 million documents in this case alone and more millions to regulators around the world.”
The alleged issue previously arose in an antitrust lawsuit between Epic Games and Google.
In that case, Epic presented evidence that seemed to show that some Google employees see chat rooms as a safer place to have private conversations. For example, one exhibit shows an employee’s comment on the document saying, “As this is a sensitive topic, I prefer to discuss it offline or in a meeting,” referring to Google Chat.
The parties in that lawsuit argued the issue before a federal judge in the Northern District of California in two evidentiary hearings this year.
At one of those hearings on Jan. 31, Judge James Donato said he would be open to adverse jury instructions, but one that would allow jurors to draw their own conclusions about what the removal of the messages means to the case.
According to Eileen Scallen, a professor at UCLA School of Law, an adverse jury instruction in its strictest form would instruct the jury that relevant documents that were destroyed would cast Google in a negative light. expert in evidence and civil procedure. A lesser remedy may be to instruct the jury not to present against the plaintiff the absence of specific documents supporting his claims.
Donato telegraphed that he might issue an instruction that was somewhere in the middle, stressing that his language could be changed. He said such an instruction could be something like telling jurors that if Google discovers that certain documents were not properly preserved, they may conclude that those documents are harmful to the company’s interests.
While it’s hard to replace the value of documents that could be important evidence, Scallen said the adverse jury instruction was considered “very damning.”
“The only person a jury respects in a courtroom is the judge,” Scallen said in a phone interview late last month regarding the Epic case. “And if a judge tells them you can assume it’s bad news for Google, they’ll take that to heart.”
The Justice Department alleged that even after Epic confronted Google about deleting chats in the case, the tech giant continued to hide its deletion policy from the federal government “and continued to destroy written communications in this case.”
The practice denied federal prosecutors the opportunity to view “candid discussions between Google executives, including potential trial witnesses,” the government argued.
The Justice Department is asking the court to find that Google violated federal rules of civil procedure by destroying the chats, to set a hearing to determine how to sanction the company and remedy the alleged destruction of evidence, and to order it to provide more information about its chat practices.
Scallen said that if Google “didn’t provide clear guidance on how to retain” relevant chats, “the perception that they left it up to individuals is just not responsible.”
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