11-26-2024
About 15 years ago, Google sent a confidential memo to its employees intended to help minimize worker comments that could incriminate the company (New York Times). The memo cautioned employees to think carefully about what they wrote in office communications. An internal instant messaging default setting was changed to “off the record.” The company also encouraged employees to put “attorney-client privileged” on many documents and add the company’s lawyers irrespective of whether legal questions were involved. Google did not place an automatic legal hold on its instant messaging as part of its obligation to preserve documents when anticipating litigation.
These decisions have been front and center as Google has faced three concurrent anti-trust lawsuits. All three judges criticized Google for its failure to preserve documents. One judge said Google had “an ingrained systemic culture of suppression of relevant evidence” that was a “frontal assault on the fair administration of justice.” Another judge said Google’s handling of documents was not how a responsible corporate entity should function. The third judge commented, “The court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants.”
The Justice Department is seeking sanctions over this issue. It alleges that Google withheld tens of thousands of documents under the guise of privilege. Employees were purportedly discouraged from keeping electronic records of their chats, so they did not turn their history on. Google employees allegedly referred to those off-the-record conversations as “Vegas” because “What happens in Vegas stays in Vegas.” Last year, Google changed its procedures so that the default is to save everything. Employees who are part of litigation holds no longer have the option to turn off their chat history.