Maybe Don't Tweet That Destroying Evidence Subject To Lit Hold Is A Good Idea?

Google’s big antitrust loss is arguably the biggest antitrust development since the Microsoft case a quarter century ago. As much as the opinion shakes up the world of search, it might end up having bigger implications for the nascent artificial intelligence industry if it disrupts Google’s access to all the juicy user data it can use to advance its AI offerings.

But within Judge Amit Mehta’s mammoth antitrust opinion is a stern warning about the company’s handling of key evidence — specifically employee chat exchanges, which the company deleted after 24 hours even after knowing there was an antitrust investigation. Judge Mehta declined to sanction Google, noting that the evidence wasn’t necessary to establish the government’s case, but he still wasn’t happy.

Still, the court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants. It is no wonder then that this case has lacked the kind of nakedly anticompetitive communications seen in Microsoft and other Section 2 cases…. Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create “bad” evidence. Ultimately, it does not matter. Section 2 liability does not rise or fall on whether there is “smoking gun” proof of anticompetitive intent.

As the passage notes, the government also complained that Google counseled its employees to avoid antitrust buzzwords in an effort to frustrate potential government investigations.

Which is how the mob works.

Though it is not an ethical lapse on its own. Stringer Bell is absolutely free to counsel his junior colleague not to take notes on a criminal fucking conspiracy. He can even go ahead and immediately crumple up those notes. But his lawyer cannot destroy those notes after the government says they’re on the case knowing that these are relevant custodians.

Enter Jones Day’s former antitrust leader:

OK. It is very true that there’s no duty to create a paper trail in the ordinary course of business, but after the DOJ tells you that you’re under investigation there is absolutely a duty to maintain that paper trail. You don’t get to start the shredders going whirrrrrrr once the DOJ tells you what they’re probing.

Former Assistant Attorney General for Antitrust Bill Baer jumped into the replies in an effort to offer some clarification and give Sims an out:

Alas, this helping hand was not taken.

Yes, these procedures work UNTIL CONTEMPLATED LITIGATION. As Baer notes, Google kept the auto-deletion system running for two years after the lit hold started. The tech giant would only lift that policy after the DOJ filed its “hey, it seems like they’ve been deleting stuff” motion. That is not a document retention policy, it’s spoliation.

It also misconstrues Judge Mehta’s take on sanctions, which he declined to impose because he didn’t think the evidence was necessary to establish the violation so no-harm-no-foul. Make of that assessment what you will, but it’s definitely not that he believed the procedures adopted were proper.

Further replies to the thread were… critical of the analysis:

Staying atop the exact moment when the document retention policy — more accurately the “document deletion policy” — has to be turned off is a big part of not having the court put the client put on blast for spoliation. And it’s not as easy as it used to be. Lawyers aren’t just locking away Bankers Boxes or grabbing .psts anymore. There are smartphones and tablets and Teams convos and Zoom logs and, as relevant to this case, employee chats. It’s a lot for a lawyer to know they have to lock down. But that’s why you invest in the legal tech products that go ahead and do this for you. You can do it all in stream these days with a quick click of the custodians involved!

In any event, we’re assuming — despite his refusal to take Baer’s exit ramp — that Sims didn’t fully grasp that the timing of Google’s deletion regime ran well past the start of the investigation. But it’s a timely jumping off point to remind everyone that document preservation in the 21st century is an onerous task that can cost a client dearly if you’re not on top of it.

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