By: Douglas DeBettencourt
The antitrust lawsuits are beginning to pile up against Google, which has led to many e-discovery problems surrounding Google’s chat deletion policy. Google has a policy in place that provides that their employees’ chats are to be deleted after twenty-four hours. Although Google may be forced to pay significant fines surrounding these claims, other companies should take note and adjust their policies and practices accordingly. Though the solution does not necessarily have to be to store all data forever, the solution for companies to protect themselves may be as simple as follow your own policies.
Google has a twenty-four-hour retention policy for online chats of employees who have their history turned off. In general, companies have the authority to decide when and how they store data, including how long data is stored until it is deleted. There are exceptions for industries like finance and health care, which Google does not fall into, or if a company has a “reasonable anticipation of litigation.” A reasonable expectation of litigation can include scenarios like being on notice of a lawsuit or notice of plans to initiate litigation. The issue is not whether Google’s twenty-four-hour retention policy is valid, as Google is free to delete messages after twenty-four hours, but the problem is rather that Google had some notification requiring them to preserve these messages because they were going to be relevant in some kind of future litigation.
Over the past three years, the antitrust lawsuits have begun to pile up and Google’s twenty-four-hour retention policy has been a consistent issue brought up during all of them. The lawsuits involve a variety of different entities including federal enforcers, state attorneys general, developers, advertisers, and consumers, all of which accuse Google of monopolizing various digital markets. The first issue from this litigation surrounding Google’s twenty-four-hour chat retention period came from a California federal antitrust suit. The plaintiffs in this case are state level enforcers, as well as private consumers and developers, including Epic Games, who all allege that Google’s Play Store policies violate antitrust law by blocking competing app stores and requiring use of Google’s payment system, which collects up to a 30% commission on in-app purchases. The suit alleges that Google has anti-competitive app store policies and filed a motion for sanctions in regards to Google’s twenty-four-hour retention period. The motion was a call for sanctions on Google, arguing that Google had spoliated evidence by deleting the chats, that this was intentional to deprive the plaintiffs of Google chats, and that the plaintiffs have been prejudiced by these actions, thus requiring Google to be sanctioned. Google defended the allegations by asserting that even though they did not suspend their twenty-four-hour retention policy, more than 90% of the employees on legal hold have had the history turned on by one of the participants in their chats. The U.S. District Court Judge critiqued Google for deleting employee chats during an evidentiary hearing in January, stating that while he was not going to issue terminating sanctions, he was open to issuing jury instructions to inform them about the missing chats so that they could decide whether the chats contained evidence unfavorable to Google.
The U.S. Department of Justice has more recently asked a D.C. federal court to sanction Google over its twenty-four-hour retention policy. This is a separate antitrust lawsuit that challenges Google’s business deals with cell phone and computer manufacturers and browser developers to make Google the default search engine on those devices. The recent motion asking for sanctions against Google alleges that Google intentionally and repeatedly destroyed written materials in violation of the Federal Rules of Civil Procedure and a discovery order from the case.
One question that naturally arises from these suits is whether Google, and other companies, can delete data. According to e-discovery experts, there are legitimate reasons for deleting data. This can drastically reduce storage costs, and privacy and cybersecurity risks. While storage costs are probably not the biggest worry for Google because of the cloud, if companies store vast amounts of data, they still open themselves up to potential hacking. The problem for companies legally is when they do not follow their own data retention policies. If companies follow their retention policies consistently, this can provide them with protection when data is deleted. This at least would give a company the argument that they were just “following their policies” instead of deleting or storing data for an alternative reason. If a company’s retention policy is not followed and certain data is deleted sooner or certain data is stored longer, this opens up the door of bad faith. Companies can no longer as strongly fall on the argument of their retention policies because if they are not following them, the question becomes why would a company not follow its own policy. Usually, in these circumstances, a company can appear to be acting in bad faith and may even have a higher risk of being sanctioned, even if they weren’t actually acting in bad faith. At the end of the day, if a company makes a policy, follow it, or they could end up paying later in court like Google.
Student Bio: Douglas DeBettencourt is a second-year day student at Suffolk University Law School. He serves as a staff member for the Journal of High Technology Law, a paralegal at Drago & Toscano, LLP, and President of Suffolk University Law School’s Chapter of the Federalist Society. Douglas received a Master of Science Degree and Bachelor of Science Degree in Criminology and Criminal Justice with a minor in Mathematics from the University of Tampa.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
