Google again accused of willfully destroying evidence in Android antitrust battle Google Chat histories handed over by the web giant in ongoing Android antitrust litigation reveal the biz has been systematically destroying evidence, according to those suing the big G. "Google employees regularly and intentionally diverted to 'history off' Chats [sic] conversations about Google’s anticompetitive Revenue …
If the plaintiffs got all the evidence they probably win the case easily. If they can only get an adverse ruling for the jury (i.e. the judge will instruct them to assume the worst about stuff that was deleted) they will probably get enough jurors who give them the benefit of the doubt because they still believe Google is a force for good they'll get off or at least get a lesser penalty.
I would say about ten trillion dollars.
I'm sure that that would make Alphabet pay attention.
Because if you don't deliver an uppercut, it will just be defined as cost of business.
Well sorry, but this should not be a cost of business. This should definitely cost you your business.
It's a pretty easy distinction:
Not keeping evidence: Sorry, we didn't store that.
Destroying evidence: Sorry, we didn't store that even though we had a legal requirement to do so, the people involved knew about that requirement, and the system was already set up to store it by default and had to be deliberately altered in order not to.
It's the second one.
Google don't lose in either case. The worst case for them is they get a fine, even a big one is nothing to them. They might have to throw a peon under the bus but so what? That's what peons are for.
This is just capitalism working as designed.
The issue, I think, is that they had legal holds and demands for evidence to be maintained and handed over to the court. Knowing this, there's evidence their managers knew they had to preserve information, but wilfully decided not to.
So, it is destruction of evidence, rather than simply not storing it in the first place.
It'd be like in the UK - if we get a subject access request, and after that point go through and delete all the relevant records and reply with "we don't have anything", we'd be breaking the law. If, however, prior to ever getting such a request, during our normal operation, we wiped that data, and then we got the request, we'd not be breaking the law by saying we don't have anything.
When I was employed by a media company someone told me that it was cheaper to lose/wipe the tapes than the Ofcom fine for the offence. I didn’t believe them at first but it was actually true. Then along came Radiomonitor.com and you couldn’t have an incident with the tapes as there aren’t any tapes. This records the output of radio stations and allows access to the recordings through their website for subscribers*. Sadly for the radio broadcasters Ofcom have a subscription to Radiomonitor.
*they also monitor the tracks played and you can get airplay information across radio stations.
Yes, the chat exchange quoted in the article was marvelously stupid. Particularly since they could have just added a lawyer to the chat and let it fall under privileged communication. Privilege isn't bulletproof but it offers significant protection against discovery.
Personally, if I were running Google ... well, they wouldn't be in this situation in the first place, which is why I wouldn't be running Google, and so on. But in every case where there was evidence of someone expressly working around a hold, like in that quoted chat, I'd fire the instigator. No appeal, no exceptions. I wouldn't want criminals working for me, and I wouldn't want idiots working for me either.
... and yet somehow, we just can't find that information for you, LOL."
I wonder if Google Chat secretly keeps the data, even when you turn "history" off, because, well, it's a Google service and they're pathological data-hoovers.
Given how keen Goole is on data they should not have I'd consider that pretty close to a certainty.
The only solution is to talk about things that could get Google into legal trouble - as you have seen, in that case they're very keen to lose the data as soon as possible..
Now entering murky waters. I asked two company lawyers about this practice (our local counsel and our regional counsel) and received two different answers. The former directed me to an article in a legal journal, which concluded "It's complicated". Nevertheless, it is prudent and common practice.
You might get away with this if used selectively, but I'm pretty sure if you did it as a matter of routine, and something came before a judge, you'd soon end up with the judge making a Very Frowny Face and saying "Fork it over on pain of judicial pain". Routine business communication is NOT justifiably part of client-attorney privileged communication unless you're a law firm.
Sorry I couldn't find a better clip, but around the 1:30 mark is where it gets to the point. It's all good, man.
No, seriously. In their first Terms, Google even used that precise word "perpetuity", but they have since changed it. It still means the same, but now they use language that is less likely to alarm you.
Go and read their Terms properly. IMHO, the only reason they have so many users is because nobody really does or is unable to think through the implications.
What does The determination of an appropriate non-monetary sanction requires further proceedings. translate to? Is that they are getting a slap on the wrist, or is it code for something more severe than a straight default judgement? Interestingly, the judge appears to leave open the possibility of a default judgement once discovery is complete!
As I understand it, the conduct the judge has entered a ruling of fact over is covered under the US criminal code in the Obstruction of Justice section.
Not excusing Google here.
It is very common for companies involved in (or anticipating) litigation to discourage leaving a paper trail (or e-trail). It is wrong, but frankly very common.
A couple common ways are face to face discussions or phone calls between trusted employees. Slack and email are not good if you are trying to be sneaky.
As another poster commented, the punishment is likely less disagreeable to Google than having the conversations exposed.
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