Chat is becoming an increasingly important tool for business communication, as employees rely more and more on chat platforms to collaborate. Chat is becoming an essential source of data for eDiscovery. This is highlighted in the ongoing Google Play antitrust matter, In Re Google Play Store Antitrust Litigation, No. 3:20-cv-05761-JD (N.D. Cal).
Google is a sophisticated litigant with a well-developed eDiscovery playbook. In this blog post, we will explore the issue in dispute and provide some key takeaways regarding the preservation of chat evidence.
Google described its legal hold process for chat data as follows:
“Google preserves (a) automatically (with no user action required) the chat threads within threaded rooms/spaces in which an employee on legal hold participates, and (b) any one-on-one or group chats in which any participant turned history on. For these one-on-one or group chats, Google distributed a legal hold notice and a later reminder that instructed recipients not to use Google Chat to discuss topics listed in the hold notice, and if necessary to turn history “on” if the recipient does use chats to discuss such topics.”
For employees who do not have the history set to “on”, the document retention policy is set for 24 hours. The plaintiffs assert that the hold policy resulted in the loss of relevant chat messages.
Takeaway 1 - Know the Litigation Hold Details of the Cloud Data Sources
When assessing the litigation hold process for a case, it is important to understand the litigation hold features of the cloud systems that store custodian data. It is common today for the relevant evidence to be stored across multiple cloud systems. For example, a construction matter may have data stored in Google Workspace and the project record stored in Procore. Each of the systems have different preservation rules and features.
Google Vault provides the following instruction regarding preservation of chat data:
“To retain, hold, search, and export direct messages (DMs), group messages, and unthreaded spaces, history must be turned on. A Google Workspace administrator can control whether history is on or off or they can allow users to decide.”
An attorney should be aware of how their client is implementing their preservation and understand any limitations of the legal hold systems relied upon by the client. An attorney’s duty to supervise and ensure that a “reasonable inquiry” is conducted certainly does not require the attorney to take over IT responsibility. The lawyer, however, should translate the process to be able to identify the scope of preserved records. Here, Google addressed the preservation of one-on-one chat records through a narrow retention policy and an instruction to not use Chat going forward on any topic that was within the preservation notice (or turn on history if the employee chatted about the preserved topic).
Takeaway 2 - Explain the Scope of Preservation
It is fair to say that no preservation is perfect; of course, perfection is not required. There is a difference of opinion on the extent of transparency that is required or recommended. Disclosing the scope of preservation certainly puts the party in a better light with the court if a preservation dispute ensues. The court in the Google Play Store case raised the question of when was the scope of Chat preservation disclosed.
Early disclosure of the scope of preservation is helpful. When a preservation issue arises, the requesting party often quickly argues that “the data is the most important evidence in the case” or “the defendant intentionally destroyed evidence.” Early disclosure can blunt such arguments. When the eDiscovery train goes off the rails, it is more difficult to explain to the court the technical nuances that are involved in large-scale preservation.
Takeaway 3 - Reliance on the Discretion of the Custodians Presents Challenges Establishing Preservation
Placing the decision of what records to preserve or collect in the hands of each Custodian raises practical problems. Often, there are no available records to establish what action was taken by each Custodian.
Right or wrong, employees who were involved in the underlying dispute are often viewed with a self-interest bias and the good faith nature of their discretionary decisions can be questioned. A party is always in a better position if the preservation is enforced by a central authority. The plaintiffs in the Google Play ligation argue:
“[Google] has no idea how many recipients of the litigation hold notice in this case personally elected to turn the history to ‘on,’ or when they chose to do so.”
In practice, relying on the discretion of the custodians often results in putting the party in a position of proving the negative; i.e. proving that no records were deleted instead of proving what records were preserved.
Takeaway 4 - Narrow Retention Policies Have Failed To Curtail eDiscovery in the Past
It is understandable why parties try to avoid Chat as a discoverable data source because of the burden dialogue evidence presents today. The traditional eDiscovery process and tools are not well suited for the triage, review, and production of dialogue evidence.
Those that have been involved in eDiscovery from the beginning will remember that many companies initially implemented short retention windows on email in an attempt to control the data. We remember the conversation that "email discovery was not a problem because we have a 30-day retention on email."
Short retention policies did not last for email and will likely not last for dialogue records. Short retention periods for email did not work for two main reasons. First, email is a valuable store of business information. The business of a company is the business, not litigation. While short retention periods may simplify legal matters, the fact that employees use email as a knowledge tool quickly undermined the attempts to limit retention. Chat is quickly becoming a store of business knowledge; short retention has a history of failing.
Second, overlapping litigation holds create havoc to administer short retention policies. It is not uncommon for one custodian to be involved in multiple holds covering different topics. In the Google Play Store case, the plaintiffs argue:
“Google admits that it has not automatically preserved 'off the record' Chats for relevant individuals in any case filed in the United States in the past five years. Because many of the custodians in this case were also subject to other litigation holds in cases with related subject matter, Google has been destroying Chats that may have been relevant to this case for many years.”
Reliance on short retention for email simply did not work when multiple overlapping litigation holds are in place. Chat will almost certainly follow the way of email.
eDiscovery is adjusting to the need to efficiently triage, review and produce chat data. Servient’s state-of-the-art Generative AI for dialogue evidence (Scheduled for Q2 release) utilizes the power of large language models to distill dialogue records making chat and mobile data efficient to search, review and analyze.
