Google Sanctioned for Failing to Preserve Internal Chats

• Pages: 25-26
• Date: 01 October 2024
• Author: James M. Miller
• Subject Matter: Civil Law

by the PSQIA. The trial court disagreed

and granted the plainti’s motion to

compel, reasoning that the PSQIA only

applies to patients—not to sta or visi-

tors. The hospital f‌iled a petition for

certiorari.

The Florida First District Court of

Appeal reversed the trial court’s deci-

sion. The appellate court noted that

the hospital’s uncontradicted ada-

vit provided that “the subject report

was assembled for reporting to a

patient safety organization under the

act and the report was in fact submit-

ted” pursuant to the reporting proce-

dure under the PSQIA. Because of this,

and because the report could result

in improved patient safety, the court

determined that it was privileged and

conf‌idential under the PSQIA. The court

quashed the trial court’s order requiring

disclosure of the report.

The court’s decision derives from

a clear reading of the PSQIA, and

Section leaders believe the court got

it right. “Because the hospital actu-

ally did submit the report to a safety

organization, the report was protected,

despite the plainti’s status,” states

Valerie Fontenot, New Orleans, LA,

Co-Chair of the Section’s Health Law

Litigation Committee. “The PSQIA is

geared towards patient safety, and in

this particular case, patient safety could

have been impacted regardless of the

plainti’s status as a visitor,” Fontenot

points out.

“As a matter of policy, the court’s

decision was not spot on,” suggests

Joseph V. Schaeer, Pittsburg, PA,

Co-Chair of the Section’s Pretrial

Practice and Discovery Committee.

“However, the court’s rationale aligns

with what the statute provides,”

Schaeer says. “Interestingly, there is

no def‌inition of ‘patient’ in the PSQIA.

Therefore, the application of the

privilege does not have to be directly

related to a patient at the hospital,”

notes Shaeer.

This decision should further the

goal of honest reporting by health care

facilities. “Providers are correcting

issues that need addressing in order for

their patients to be in the safest envi-

ronment possible,” states Fontenot. “If

the reports become public, people are

probably not going to report as truth-

fully or report as often,” she predicts.

“In fact, this ruling encourages provid-

ers to be more thorough while investi-

gating incidents, since they would not

have to produce the report to show

what they did,” Fontenot concludes.

Google Sanctioned

for Failing to

Preserve Internal

Chats

By James M. M iller, Litigation News

Contributing Editor

Google has been sanctioned in a mul-

tidistrict antitrust case pending in the

U.S. District Court for the Northern

District of California. In Re Google

Play Store Antitrust Litigation involves

claims that Google monopolized the

Android app distribution market by

engaging in exclusionary conduct

with its Google Play Store practices.

Google’s failure to preserve Google

Chat—its in-house instant messaging

platform described by Google as an

“electronic break room”—used daily by

Google employees lead to the sanctions

order.

As part of its litigation hold, Google

instructed its employees not to use

Google Chat to discuss topics subject

to the litigation. But if they did have

such conversations, Google requested

employees to preserve them using a

feature that allows employees to turn

history “on.” However, the district court

concluded that Google failed to moni-

tor its employees’ compliance with the

hold notice and that employees were

unable or unwilling to follow the hold

instructions. ABA Litigation Section

leaders view the case as a cautionary

tale for litigators on the need for over-

sight in the preservation and produc-

tion of electronically stored information

(ESI).

When the plaintis questioned

Google about the paucity of chat mes-

sages in Google’s production, Google

revealed that chats are typically deleted

after 24 hours (thus the term “ephem-

eral” messaging). Google had not sus-

pended the auto-deletion function after

the litigation commenced, despite its

ability to do so.

Following a two-day evidentiary

hearing on the plaintis’ motion for

sanctions, the court found that Google

had given its employees “carte blanche”

to determine relevance and whether to

preserve the chats. The court further

determined that Google Chat had been

used by employees to discuss business

topics relevant to the litigation.

The court found that Google fell

“strikingly short” of its obligation to

preserve this ESI. More ominous for

Google was the court’s conclusion

that it had falsely assured the court in

a case management statement that

Google was taking appropriate steps

to preserve all relevant evidence, while

making no reference to Google Chat.

Instead, the court found that Google

“chose to stay silent until compelled

to speak by the f‌iling of the Rule 37

motion and the [c]ourt’s intervention.”

The court pointed to proportional-

ity as the guiding principle in deciding

on the appropriate sanctions, and it

will wait to see “the state of play of the

evidence at the end of fact discovery”

before determining the remedy. Fact

discovery in the case is now closed, and

the jury trial is set for November 2024.

In the meantime, the court has ordered

Google to pay the plaintis’ attorney

fees and costs in the Rule 37 motion

and resulting proceedings.

“This opinion reads like a primer on

what can go wrong in eorts to pre-

serve ESI,” says Jerey J. Greenbaum,

Newark, NJ, former Co-Chair of the

Litigation Section’s Class Actions &

Derivative Suits Committee and current

member of the ABA Federal Practice

Task Force. “Google actually did a good

job instructing its employees on the

litigation hold but made the mistake of

relying on the custodians without fol-

lowing up to make sure they were com-

plying,” Greenbaum notes. “There must

be a system of verif‌ication to make sure

your people understand and are doing

their jobs,” he explains.

“This is where Google fell short,”

points out Jared M. Katz, Santa

Barbara, CA, member of the E-Discovery

Subcommittee of the Section’s

Commercial & Business Litigation

Committee. “The court pointed out

that counsel’s case management state-

ment led the court and the plaintis to

believe that all was well, and ESI being

preserved, when in fact signif‌icant,

potential evidence was being routinely

destroyed,” Katz states. “While litigation

FALL 2024 • VOL. 5 0 NO. 1

25 | ABA LITIGATION SECTIO N

THE LATEST DEVELOPMENTS IN LITI GATION

NEWS & ANALYSIS

Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

disseminated in an y form or by any means or s tored in an electro nic database or re trieval system wi thout the express w ritten consen t of the American B ar Associatio n.