Google Adopted Policies For Destroying or Hiding Documents

IX. GOOGLE ADOPTED POLICIES FOR DESTROYING OR HIDING DOCUMENTS TO AVOID PRODUCING THEM TO REGULATORS AND LITIGANTS

A. Google Adopted And Implemented An “Off The Record” Chats Default To Destroy Substantive And Relevant Written Communications

1. Google’s Chat Products

1193. Google Chat, previously known by names such as “Hangouts” and “Google Talk,” is Google’s instant messaging product. Tr. 967:6–8 (Kolotouros (Google)); Tr. 7728:20– 25 (Pichai (Google)). Google has used these chat products for business purposes for over 15 years. UPX1088 at -652 (Google Chat retention policy); UPX1101 at -619 (referring to Google’s “instant message culture” in September 2008).

1194. Chats are discoverable written communications that may take place one-on-one, with several others, or in virtual “rooms” containing two or more people. UPX1101 at -619 (Instant messages are a “form[] of electronic communication” that are subject to review in legal discovery.); UPX2091 at -584 (“Assume that every document you generate, including email and chats, could be made public and scrutinized by our competitors and antitrust regulators.”); UPX1088 at -652 (listing types of chats). Google Chats may include non-employees. Tr. 972:20– 25 (Kolotouros (Google)) (unaware of policy regarding chats with individuals outside Google).

1195. Google employees interchangeably refer to “history off” chats as “off the record” chats. Google permanently deletes all “off the record” communications after 24 hours if both users in a one-on-one chat have their retention history set to “off,” or if history is set to “off” in a group chat. Tr. 968:8–18 (Kolotouros (Google)) (“history off” chats deleted every 24 hours); Tr. 7729:3–8 (Pichai (Google)) (same); Tr. 7559:1–3 (Raghavan (Google)) (“[E]very chat disappeared 24 hours later.”); UPX1088 at -652.

1196. Google’s enterprise administrator sets the default retention period for Google Chat. PSX01217 at 2. The retention period for chats can be set for any duration, from one day to indefinite. PSX01217 at 2; Tr. 7590:24–7591:12, 7592:24–7593:16 (Raghavan (Google)). Google chose to set its default retention period to 24 hours for “history off” chats. UPX1088 at -652; UPX1089 at -654. After a chat’s retention period expires and the chat is removed from the user’s view—such as “off the record” chats disappearing from view after 24 hours—the chat “can’t be recovered back into [the user’s] view.” UPX1088 at -652; Tr. 7559:1–3 (Raghavan (Google)) (“[E]very chat disappeared 24 hours later.”).

1197. Turning a chat’s history from “off” to “on” retains all subsequent messages between the chat participants but does nothing to preserve messages sent before the switch to “on.” All messages sent before that change are still deleted after 24 hours. UPX1088 at -652.

2. In September 2008, Google Changed The Default Retention Setting For Many Chats To “History Off”

1198. Before September 2008, Google chats defaulted to “history on” and were preserved for longer than 24 hours. Tr. 7729:9–12 (Pichai (Google)).

1199. On September 16, 2008, Google changed the default retention of chats to “history off” so that chats would, by default, delete after 24 hours. UPX1101 at -619–20. In an email to all Google employees from now-Chief Legal Officer Kent Walker and another senior Google leader, Bill Coughran, Google announced that to “streamline and simplify” the process of reviewing and “producing documents in regulatory and litigation matters” and “[t]o help avoid inadvertent retention of instant messages,” Google had “decided to make ‘off the record’ the Google corporate default setting” for chats. UPX1101 at -619–20; Tr. 7730:3–7731:7 (Pichai (Google)).

Google’s 2008 decision to default chats to “history off” was made by executive management, including Mr. Walker, for purposes of avoiding discovery in litigation and regulatory matters. Tr. 7733:24–7734:7 (Pichai (Google)) (agreeing that “the executive management group” chose to “automatically delete chats after 24 hours” in 2008, even though those deleted chats “may have otherwise been collected and produced in litigation discovery and in regulatory matters”).

1200. Google maintained its policy to default chats to “off the record” for nearly 15 years, from mid-September 2008 through early February 2023. Tr. 967:9–11 (Kolotouros (Google)); Tr. 7558:22–24 (Raghavan (Google)); Tr. 7734:13–15 (Pichai (Google)) (referring to UPX1101 at -619); Plaintiffs’ Memorandum In Support Of Motion For Sanctions, ECF No. 495– 6 (notifying Plaintiffs of the change to chat retention default to “history on”).

3. For Years, Including Throughout Discovery In This Case, Google Employees Used “Off The Record” Chats To Conduct Business

1201. Google has “an email and instant-messaging culture.” UPX1101 at -619. Google employees use Google Chat daily to communicate with colleagues. Tr. 970:7–10 (Kolotouros (Google)) (testifying that he uses chat multiple times a day); Tr. 6467:17–25, 6468:10–12 (Nayak (Google)) (referring to use of chat); Tr. 7558:15–17 (Raghavan (Google)) (same); Tr. 7737:1–3 (Pichai (Google)) (same); UPX1094 at -485 (chat with Mr. Pichai discussing New York Times story about ChatGPT).

1202. Google employees use Google Chat to discuss substantive business with coworkers and supervisors, and sometimes with individuals working at other companies, such as employees at Samsung. Tr. 966:14–16, 970:11–12, 971:2–7, 971:20–22, 972:6–8 (Kolotouros (Google)); Tr. 7562:5–12 (Raghavan (Google)); Tr. 9557:14–19 (Rosenberg (Google)); UPX1099 at -146 (chat between Samsung and Google employees, with Google’s Christopher Li advising Samsung employees that he had changed chat history to “on” and “please communicate with care given this”).

1203. Google employees at all levels of responsibility—from the CEO to vice presidents to product managers—use “off the record” chats for business purposes. Tr. 7737:1–3 (Pichai (Google)) (testifying to use of chat); Tr. 7560:7–7562:22 (Raghavan (Google)) (discussing UPX0714); UPX0714 at -202 (“So I kind of let them have it on both barrels on a History-off chat msg”); Tr. 6467:17–6468:12 (Nayak (Google)); Tr. 968:22–969:2, 971:8–11 (Kolotouros (Google)); Tr. 9557:4–9558:15 (Rosenberg (Google)) (discussing UPX2111 at -097 and his use of history off chat to discuss Samsung revenue share payments on the Play Store); Tr. 4335:20– 25 (R. Krueger (Google)).

1204. Mr. Pichai admitted that when he used chats, he would occasionally request that chats be set to “history off.” Tr. 7738:15–7739:13 (Pichai (Google)) (testifying about UPX0973); UPX0973 at -443 (asking to make a group chat “history off”).

1205. Mr. Raghavan, Senior Vice President of Search Ads, used “off the record” chats, including to express his unfiltered views to colleagues on changes to the Chrome user interface. Tr. 7560:7–7562:22 (Raghavan (Google)) (discussing UPX0714); UPX0714 at -202 (letting Google Senior Vice Presidents Hiroshi Lockheimer and Ben Gomes, and Vice President Anil Sabharwal, “have it on both barrels on a History-off chat mg” about how a change to Chrome affected Mr. Raghavan’s Search Ads group); UPX8082 at ¶ 5 (Raghavan declaration stating his “typical practice” was to have the chat default set to “history off”).

1206. Mr. Rosenberg, Former Senior Vice President, and Mr. Kolotouros, current Vice President, used “history off” chats to discuss Samsung revenue share. Tr. 971:8–11 (Kolotouros (Google)); Tr. 9557:4–9558:15 (Rosenberg (Google)) (discussing UPX2111 at -097); Tr. 968:22–969:2 (Kolotouros (Google)); UPX8071 ¶ 4 (Kolotouros declaration stating his “typical practice” was to have the chat default set to “history off”); id. ¶ 5 (“I do not recall [] changing the history setting of any Google chat”).

1207. Ryan Krueger, SA360 Product Manager, used “history off” chat for “both formal and informal discussions,” including business-related communications to discuss “SA360 product decisions” and “product feature road map decisions.” Tr. 4334:14–20, 4335:20–25, 4336:10–4337:1, 4338:5–9, 4338:19–24 (R. Krueger (Google)). Likewise, Amit Varia, SA360 Senior Product Manager, also routinely used chat to discuss SA360’s feature “prioritization process” and “roadmap planning.” Tr. 4703:23–4704:9, 4706:21–4707:22 (Varia (Google)).

4. Google Employees Intentionally Took Chats To “History Off” To Avoid Preserving Them

1208. Google had a policy that its employees should communicate with “history off.” To comply with this policy, Google employees asked coworkers to turn their history off when using chat. Tr. 6468:4–9 (Nayak (Google)) (he “certainly” asked people to turn their chats to “history off” because “at the time there was a policy at Google to have history off . . . And I just wanted to be compliant with that policy.”).

1209. To ensure communications could not be produced in discovery, Google employees proactively asked coworkers to change their chat settings to “history off” to conduct substantive and sensitive business conversations. Tr. 7737:7–19 (Pichai (Google)) (testifying he asked for group chats to be set to “history off”); Tr. 4338:19–24 (R. Krueger (Google)) (agreeing that he had “certain conversations related to [his] work with SA360 for which [he] turned history off” affirmatively); UPX0708 at -402 (“BTW, can we turn history off by default in this chat room?”).

1210. Google employees were aware the chats were “history off.” Tr. 7560:7–7562:22 (Raghavan (Google)) (letting senior Google executives “have it on both barrels on a History-off chat” message about changes made by the Chrome team affecting the Search Ads team) (referring to UPX0714).

1211. As CEO, Mr. Pichai never considered changing the chat default retention period to anything other than 24 hours for “history off” chats. Mr. Pichai understood that he has an obligation to preserve relevant chat messages and that “it’s possible” there were chats where he asked to turn history off. Tr. 7736:14–25 (Pichai (Google)) (contending that he relied “on our chief legal officer and the legal teams” to meet Google’s obligations to preserve documents in connection with litigation, and did not consider whether the chat retention period was adequate); Tr. 7741:16–7742:9 (Pichai (Google)) (if chats were set to “history off,” they would not be preserved).).

5. Google Employees Did Not Change Their Default Chat Retention Settings, Even When Under A Legal Hold

1212. Google has the technical capability to override default retention rules and set legal holds for all employees’ chats. Legal holds can be applied to individual accounts or to all accounts in an organization. Tr. 7591:22–7592:23, 7594:4–7595:6 (Raghavan (Google)); Tr. 7587:18–7588:25 (Raghavan (Google)) (explaining Google Workspace and its components); PSX01217 at 3 (legal holds preserve all “employees’ [] Chat conversations, whether they take place via direct message or in rooms.”); PSX01217 at 2 (explaining Google Vault capabilities); PSX01218 at 1 (“Holds override retention rules, so data on hold is protected from your standard information governance rules that might purge it otherwise.”).

1213. Before February 8, 2023, Google’s corporate policy was to automatically preserve “on the record” chats for those on legal hold, but not “off the record” chats for those same people. Rather, by corporate policy, “history off” chats for individuals on legal hold continued to be deleted every 24 hours. “History off” chats were only retained if employees overrode the chat default and proactively switched a discussion to “history on,” or otherwise saved the chat by (for example) emailing it. Tr. 968:19–21 (Kolotouros (Google)) (referring to UPX1088); UPX1088 at -652 (explaining retention periods for types of chats); Tr. 7729:3–8 (Pichai (Google)) (chat default was “history off” until February 2023).

1214. Google employees on legal hold used “history off” chats to discuss matters related to this litigation. Tr. 973:5–9, 974:10–975:2, 983:7–12 (Kolotouros (Google)) (referring to UPX0710) (Mr. Kolotouros asked to take a conversation regarding Samsung Wear Play revenue share “off email” and onto “chat/messaging/hangouts” when wearable technology, such as Samsung Wear was part of the Amended Complaint.); ECF No. 94 at ¶ 162 (Amended Complaint dated Jan. 15, 2021); UPX0710 at -209 (“there is another reason why I think 50% is a good number...best discussed off email so feel free to ping me via [chat]”).

1215. Google employees were not adequately trained on the scope of their litigation holds and were not aware of what materials should be retained. Mr. Kolotouros, for example, “d[id] not recall” if wearables were part of his litigation hold in this case, although wearable technology was part of the Amended Complaint. Tr. 983:7–12 (Kolotouros (Google)); UPX0710 at -209; ECF No. 94 at ¶ 162 (Amended Complaint dated Jan. 15, 2021); Tr. 4338:25–4341:1 (R. Krueger (Google)) (testifying that he “interpreted” his legal hold not to cover “history off” chats because they were “informal” conversations that were “free form” rather than “well thought out and reviewed”).

1216. Although aware that they were on legal hold—and indeed, often multiple legal holds—Google employees did not change their chat default settings to preserve relevant chats. Google employees knew that by keeping the default as “history off,” chats would be deleted every 24 hours. Tr. 6467:17–6468:2, 6468:10–12 (Nayak (Google)); Tr. 956:18–23, 968:22– 969:2, 969:5–6, 970:2–6, 974:24–975:2, 975:7–9 (Kolotouros (Google)) (keeping chat default “history off” before February 2023, despite being on more than one legal hold, including this case since December 2019); Tr. 4337:2–5 (R. Krueger (Google)); Tr. 7559:4–11 (Raghavan (Google)); Tr. 9558:5–15 (Rosenberg (Google)); Tr. 7734:19–22, 7737:4–6 (Pichai (Google)) (did not take any steps to change Google’s default chat policy during his time as CEO)); Tr. 4703:23–4704:9, 4706:21–4707:22 (Varia (Google)) (“was relying on the default settings” of Google chat even after placed on legal hold); UPX0204 at -200 (“My email and docs are currently retained in connection with four different lawsuits”).

1217. Google’s history-off chat policy was well known throughout Google. Google’s CEO, Mr. Pichai, “was aware” when he became CEO that “all Google employees, even those under a litigation hold, had their chats default to delete after 24 hours.” Tr. 7736:9–13 (Pichai (Google)).

6. After Keeping Its 24-Hour Chat Default Policy In Place For 15 Years, Google Changed Its Chat Retention Policy Only After Plaintiffs’ Expressed Intention To File For Sanctions

1218. The complaint was filed in this litigation on October 20, 2020. Complaint, ECF No. 1.

1219. On November 18, 2020, Google issued a new chat retention policy. Tr. 968:5–7 (Kolotouros (Google)) (referring to UPX1088); UPX1088 at -652 (“Policy last modified: November 18, 2020”); ECF No. 529 at 16 (Google response to DOJ sanctions motion, agreeing that Google enacted a standalone chat policy in November 2020). The new chat policy did not set the default to “history on” and instead continued to delete employees’ “history off” chats every 24 hours. UPX1089 at -654 (“No change 24 hour [deletion] if message history is off (default)”). Google reissued its policy multiple times during the pendency of the litigation. UPX1090 at -656 (“page last modified: February 26, 2021”); UPX1091 at -658 (“page last modified: October 1, 2021”); UPX1088 at -652 (“page last modified: February 25, 2022”).

1220. The United States informed Google that it intended to move for spoliation sanctions on February 1, 2023, for Google’s destruction of relevant “off the record” chats throughout discovery in this case. United States’ Motion for Sanctions Against Google, LLC and an Evidentiary Hearing to Determine the Appropriate Relief, ECF No. 495 at Ex. 46. Seven days later, on February 8, 2023, Google changed its chat default settings and began to default chats to “history on” for individuals on legal hold. Tr. 7729:3–8 (Pichai (Google)); UPX8071 at ¶ 4; Memorandum in Support of the United States’ Motion for Sanctions Against Google, LLC and an Evidentiary Hearing to Determine the Appropriate Relief, ECF No. 495–1, Ex. 4 at 2 (confirming that Google began retaining chats for individuals on legal hold). By the time Google began preserving chats for individuals under legal hold, fact discovery in this case had been closed for 9 months. Order Amending Case Management Order, ECF No. 263 at 1 (setting May 6, 2022, as the end of fact discovery).

1221. “History off” chats that occurred during the investigation preceding this litigation, and throughout discovery in this litigation, were irrevocably destroyed. UPX1088 at -652 (“history off” chats deleted after 24 hours); Memorandum in Opposition to Plaintiffs’ Motion for Sanctions, ECF No. 529 at 4 (“Messages sent with ‘history off’ are deleted 24 hours from when the message is sent, and cannot be retained via Google Vault.”).