A Lesson in eCommunications Technology Policies and Practices
In the digital age, communication within businesses has shifted significantly. Companies now rely heavily on electronic communication technologies, such as chat platforms, to facilitate quick and efficient employee discussions. However, as demonstrated by the recent case of Google Play Store Antitrust Litigation, eCommunications technology comes with its own challenges. This blog post identifies lessons learned from Google's current situation as it relates to litigation and eCommunications technology.
During the litigation process, the plaintiffs in the Google Play Store Antitrust case raised concerns about the absence of Google Chat messages in document production. In response, Google said that its chats were typically deleted after 24 hours and were not suspended even after this litigation began. Google let employees make their own personal choices about preserving chats.
Although a Google information governance employee testified that Google Chat was typically used for quick, one-off conversations like an invitation to grab a coffee or for "sensitive," personal topics like birth announcements or promotions}, an abundance of evidence suggested that employees routinely discussed substantive business matters using this platform. Some of the chats were deemed relevant to the litigation at hand. As a result, the court found that Google's failure to preserve this electronically stored information (ESI) was unacceptable.
The court ultimately granted the plaintiff's motion for e-discovery sanctions against Google. While Google was ordered to cover the plaintiff's legal fees, non-monetary sanctions were not imposed at that stage. The court ruled that the Google Chat evidence could not be restored by conducting more discovery as the messages had been deleted. Google did not take reasonable steps to ensure custodians complied with data preservation requests. Some employees failed to comply, leading to the deletion of potentially relevant data.
This case serves as a cautionary tale for companies utilizing communication technology. It highlights the importance of establishing robust policies and procedures surrounding data preservation and retention. Some key lessons to be learned include:
Auto-Delete Policies: Companies should carefully assess the impact of auto-delete policies on relevant ESI and consider suspending or modifying them when litigation becomes reasonably foreseeable. This means you need a proactive plan and process to suspend auto-delete functionality when necessary.
Employee Preservation: If companies rely on employees to preserve information (which may no longer be advisable given today's technology), they must provide specific rules on how and where to preserve potentially responsive ESI.
Employee Compliance: Businesses must educate employees on their responsibilities regarding data preservation and ensure they comply with legal holds and preservation requests.
Proper Communication Tools: Companies should evaluate the suitability of their communication platforms for different types of conversations. Suppose substantive business discussions occur on a particular platform. In that case, steps must be taken to retain that data in compliance with laws and regulations and preserve that data appropriately when litigation, audit, or investigation happens.
eDiscovery Preparedness: Proactive planning for eDiscovery is crucial. Companies should establish mechanisms to perform effective eDiscovery, even in the face of challenges like auto-delete policies.
Google's failure to suspend its auto-delete policy and adequately address the use of its eCommunication technology led to sanctions in the Google Play Store Antitrust Litigation. This case underscores the importance of companies establishing clear policies, educating employees, and proactively preserving relevant data. By doing so, businesses can mitigate risks, uphold their legal obligations, and avoid the consequences associated with data loss during litigation.
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