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<em>In re Google Play Store Antitrust Litig., --- F. Supp. 3d ----, 2023 WL 2673109, No. 21-MD-02981 (JD) (N.D. Cal. Mar. 28, 2023)</em>

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This decision illustrates three trends in e-discovery: (1) employees are increasingly using chat platforms and other means of instant messaging to engage in substantive conversations about work; (2) courts are increasingly penalizing litigants for not actively supervising compliance with litigation holds; and (3) the failure to address more challenging sources of potentially relevant information at the initial preservation stage — such as with text and instant messages — comes with increasing risk to litigants in terms of reputational harm and significant discovery-related sanctions.

On March 28, a federal court sanctioned Google for failing to suspend a 24-hour automatic deletion of internal company instant chat messages and to adequately supervise the preservation efforts of its relevant employees, who had the ability to change the preservation settings on their instant chat messages. While the Northern District of California declined to impose terminating sanctions, it ordered Google to cover the plaintiffs’ legal costs in pursuing the Rule 37 sanctions motion and reserved the possibility of imposing nonmonetary sanctions at a later date. The plaintiffs in this action — the attorneys general of 37 states and Washington, D.C., two tech companies, and individuals — allege that Google’s Play Store charges commissions so high that it violates antitrust laws. In failing to preserve relevant chat messages after the commencement of litigation, the court opined that Google “fell strikingly short … in honor[ing] the evidence preservation duties it was abundantly familiar with from countless prior cases.” Specifically, the court took issue with the following:

Despite assuring the court in a case management statement that it had “taken appropriate steps to preserve all evidence relevant to the issues,” the defendant failed to “say[] a word about [c]hats or its decision not to pause the 24-hour default deletion” until “many months after plaintiffs first asked about them.”

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The defendant initially claimed that it did not have the “ability to change default settings for individual custodians with respect to the chat history setting,” but evidence disclosed at the hearing “plainly established that this representation was not truthful.”

The defendant claimed that chat was used primarily for nonbusiness, casual conversations, but evidence revealed the company does in fact use it to discuss “substantive business.”

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The defendant failed to adequately advise on and supervise the preservation efforts of its relevant employees. Employees who received a litigation hold “were unable or unwilling to follow the [c]hat preservation instructions, and sometimes disregarded the instructions altogether.” In addition, employees were left “largely on their own to determine what [c]hat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation.”

While the court declined to terminate the case on the basis of lost chat communications, it acknowledged the “plaintiffs’ dilemma of trying to prove the contents of what Google has deleted.” Thus, the court left open the possibility of further nonmonetary sanctions at the conclusion of fact discovery, when the plaintiffs will be in a better position to assess “what might have been lost.”

Please contact <a href="mailto:ejacobs@bakerlaw.com">Edward J. Jacobs</a> with questions about if and when various forms of instant messages are discoverable and should be preserved when litigation arises.

<a href="https://s3.documentcloud.org/documents/23730721/govuscourtscand3731794690.pdf">Link to </a><a href="https://s3.documentcloud.org/documents/23730721/govuscourtscand3731794690.pdf" target="_blank" rel="noreferrer noopener">Decision</a>

Google Sanctioned for Failure to Preserve Internal Chat Messages