obligation to preserve evidence for 13 use in litigation arises when litigation is “pending or reasonably foreseeable[.]”
How later courts described this case
- obligation to preserve evidence for 13 use in litigation arises when litigation is “pending or reasonably foreseeable[.]”
- “[I]t generally is recognized that when a company or organization has a document 21 retention policy, it is obligated to suspend that policy and implement a litigation hold to ensure the 22 preservation of relevant documents after the preservation duty has been triggered.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
8 JOSEPH TAYLOR, et al., Case No. 20-cv-07956-VKD
9 Plaintiffs,
ORDER RE OCTOBER 23, 2024
10 v. DISCOVERY DISPUTE LETTER RE
DOCUMENT PRESERVATION
11 GOOGLE LLC,
Re: Dkt. No. 122
Defendant.
12
13 The parties ask the Court to resolve their dispute concerning plaintiffs’ efforts to obtain
14 discovery of defendant Google LLC’s (“Google”) document preservation efforts or lack thereof.
15 Dkt. No. 122. The Court held a hearing on this dispute on November 19, 2024, after which the
16 Court directed the parties to make a supplemental filing regarding the deposition testimony of
17 Google employee Garry Boyer, which they did. See Dkt. Nos. 140, 145, 150-3, 152.
18 I. BACKGROUND
19 Although plaintiffs refer to their Requests for Production Nos. 22-26,1 the scope of this
20 dispute is both narrower and broader than those requests. As presented to the Court, the parties
21 disagree about whether Google should be required to provide documents and information about
22 the following topics: (1) whether Google preserved chat messages for Mr. Boyer and other
23 witnesses; (2) whether Google timely implemented a litigation hold for custodial documents for
24 Mr. Boyer and other witnesses; and (3) whether Mr. Boyer and other witnesses participated in
25 Google’s “communicate with care” trainings. Dkt. No. 122 at 1. Plaintiffs argue that this
26 discovery is necessary so that they may ascertain whether and to what extent Google spoliated
27
1 relevant evidence and/or asserted improper privilege claims. Id. at 2-5. They ask that the Court
2 order Google to run certain search terms through all current custodians’ and deponents’ document
3 collections, and to “produce a list of employees subject to litigation hold in this case, the dates of
4 the hold, and when Google began preserving their [c]hats.” Id. at 5. Google responds that
5 plaintiffs’ document requests and their present requests for relief are unreasonably broad demands
6 for “discovery on discovery,” and are unsupported by any showing that relevant evidence is
7 missing or that Google’s production is deficient or otherwise improper. Id. at 6-9.
8 II. LEGAL STANDARD
9 The legal requirements that govern Google’s document preservation obligations are clear.
10 Google had a duty to take reasonable steps to preserve relevant evidence as soon as it learned of
11 the complaint in this action, which was filed on November 12, 2020. See Apple, Inc. v. Samsung
12 Elecs. Co., Ltd., 888 F. Supp. 2d 976, 989 (N.D. Cal. 2012) (obligation to preserve evidence for
13 use in litigation arises when litigation is “pending or reasonably foreseeable[.]”). The duty to
14 preserve evidence includes an obligation to identify, locate, and maintain information relevant to
15 this action, including identifying key employees likely to have relevant information. See Apple,
16 Inc. v. Samsung Elecs. Co., Ltd., 881 F. Supp. 2d 1132, 1137 (N.D. Cal. 2012). Further, if Google
17 had a document retention/document destruction policy that would otherwise result in the
18 destruction of relevant documents, it had an obligation to suspend that policy and implement a
19 litigation hold to ensure that documents that might otherwise be destroyed are instead preserved.
20 See id. (“[I]t generally is recognized that when a company or organization has a document
21 retention policy, it is obligated to suspend that policy and implement a litigation hold to ensure the
22 preservation of relevant documents after the preservation duty has been triggered.”) (quotations
23 and citation omitted).
24 Rule 26 limits discovery to “any nonprivileged matter that is relevant to any party’s claim
25 or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). As a general
26 matter, discovery of another party’s evidence preservation and collection efforts—or “discovery
27 on discovery”—is disfavored, as such discovery is typically not relevant to the merits of a claim or
1 345 F.R.D. 152, 158, 161 (N.D. Ill. 2023); Uschold v. Carriage Services, Inc., No. 17-cv-04424-
2 JSW (EDL), 2019 WL 8298261, at *4 (N.D. Cal. Jan. 22, 2019). However, such discovery may
3 be warranted if the party requesting it demonstrates that there is a specific deficiency in the other
4 party’s production of documents or other information. See LKQ Corp., 345 F.R.D. at 161–63
5 (collecting cases); Uschold, 2019 WL 8298261, at *4. “Mere speculation about missing evidence
6 is insufficient to allow discovery on discovery.” LKQ Corp., 345 F.R.D. at 163.
7 III. DISCUSSION
8 A. Chat Messages
9 With respect to Google chat messages, plaintiffs seek an order directing Google to search
10 its existing custodians’ records using certain “spoliation-related” search terms, and to identify the
11 dates it began preserving those custodians’ chat messages. They point to Judge Donato’s decision
12 in In re Google Play Store Antitrust Litigation, finding that Google employees involved in that
13 case deliberately communicated via chat messages using the “history off” setting to avoid the
14 possibility that sensitive messages would be subject to discovery, and that Google failed to take
15 reasonable steps to disable the “history off” functionality as necessary to preserve the messages.
16 Dkt. No. 122 at 3 (citing In re Google Play Store Antitrust Litigation, 664 F. Supp. 3d 981, 993-95
17 (N.D. Cal. 2023)). Plaintiffs contend that this use of “off the record” chat messages was a
18 company-wide practice during the time period relevant to this action and that, as a result, Google
19 likely failed to preserve custodians’ chat messages here as well. Id. at 2-3. Plaintiffs also point
20 out that Google produced only three chat messages during discovery in this action. Id. at 2.
21 During the hearing, Google acknowledged that it did not take affirmative steps to
22 automatically preserve chat messages for any custodians in this action until May 2023. Dkt. No.
23 156 at 43:22-44:15. However, Google argues plaintiffs have not shown that any particular Google
24 custodian used chat messages to communicate regarding any matters relevant to this action. Dkt.
25 No. 122 at 7. Google contends that plaintiffs had ample opportunity to explore this issue in
26 depositions and otherwise, but “made no genuine attempt to determine whether [c]hats were used
27 in a manner that would be responsive to [p]laintiffs’ discovery requests[.]” Id. Google does not
1 messages were lost due to a failure to suspend the “history off” functionality.
2 Plaintiffs have the burden to show that there is some factual basis to conclude that relevant
3 evidence was not preserved. Their showing on this point is thin. With one exception discussed
4 below, nothing in plaintiffs’ portion of the discovery dispute letter suggests that any custodian’s
5 chat messages are likely to contain any information relevant to any claim or defense in this case.
6 While plaintiffs have shown that Google engaged in a company-wide practice that failed to
7 prevent the automatic destruction of chat messages, and that this company-wide practice resulted
8 in destruction of information that was relevant in another case, plaintiffs have not shown that
9 Google failed to preserve relevant chat messages across custodians in this case. Google’s failure
10 to automatically preserve chat messages in other matters has been well-publicized since at least
11 March 2023, and yet plaintiffs did not ask any of the Google employees whom they deposed
12 whether those employees used “off the record” chat messages to communicate relevant
13 information. More importantly, plaintiffs do not identify any category of information that they
14 sought in discovery that was not produced because it was in chat messages Google failed to
15 preserve.
16 The one exception concerns Mr. Boyer, a senior staff software engineer for Google who at
17 one point led the quality engineering team for GMS Core.2 See Dkt. No. 122 at 2; Dkt. No. 150-3
18 at 22:3-23:3. According to plaintiffs, Mr. Boyer testified that he uses chat messages for “work
19 purposes” and that he has “communicated regarding network traffic in GMS Core over chat.”
20 Dkt. No. 122 at 2. Plaintiffs claimed during the hearing, that Mr. Boyer “may be the most
21 important witness in the case by far.” Dkt. No. 156 at 23:20-21. They did not include or support
22 this argument in their portion of the discovery dispute letter.
23 Google disputes plaintiffs’ characterization of Mr. Boyer’s role and his use of chat
24 messages, contending that “[h]e’s not a senior part of the GMS Core team,” and that he uses both
25 chat and email to communicate at work. Id. at 47:5-6; Dkt. No. 122 at 7. Google acknowledges
26 that it did not issue a litigation hold with respect to Mr. Boyer until April 2024, when plaintiffs
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1 first asked for his deposition. Dkt. No. 122 at 8; Dkt. No. 156 at 50:12-18.
2 The Court has considered the parties’ supplemental submissions of excerpts from Mr.
3 Boyer’s deposition, as well as their separate discovery dispute letter regarding the experiment Mr.
4 Boyer conducted. See Dkt. Nos. 135, 150-3, 152. The deposition excerpts reflect that during the
5 period 2017 through 2024, Mr. Boyer “looked at network data used by GMS Core” at least once
6 per year. Dkt. No. 150-3 at 25:3-20; see also id. at 142:11-16. He testified that he communicated
7 with co-workers “regarding network traffic in GMS Core over chat,” but he was not asked any
8 additional questions about the contents of those communications—e.g., whether they were
9 substantive or merely administrative. See id. at 142:17-144:7. He testified that once he received a
10 litigation hold he lost the ability to change his history on/off settings, and that as of the date of his
11 deposition his chat message history was set to “on.” Dkt. No. 152 at 145:3-11. Mr. Boyer did not
12 recall whether his chat message history was set to “on” or “off” during prior occasions on which
13 he communicated with co-workers over chat regarding network traffic from 2020 to 2023. Id. at
14 145:15-23.
15 Based on this record, the Court concludes that Mr. Boyer likely has documents and
16 information relevant to a claim or defense—specifically, his periodic analyses of network traffic.
17 However, plaintiffs have not shown that relevant information is likely contained in Mr. Boyer’s
18 chat messages. At the hearing, plaintiffs speculated that Mr. Boyer’s chat messages may contain
19 information about what investigations or experiments he might have done regarding network
20 transfers. See Dkt. No. 156 at 25:9-27:1. But they cite no evidentiary support for this argument,
21 save that Mr. Boyer used chat messages for “work purposes” including his work relating to
22 network traffic in GMS Core. Plaintiffs had an opportunity to question Mr. Boyer about what he
23 put in his chat messages, but they did not ask those questions.
24 B. Litigation Holds
25 As plaintiffs correctly observe, the question of whether Google timely implemented a
26 litigation hold for Mr. Boyer is distinct from the question of how Mr. Boyer and Google treated
27 his chat messages. There appears to be no dispute that Mr. Boyer’s chat messages were preserved
1 contend that Mr. Boyer should have been placed on a litigation hold earlier, but apart from
2 referring to him as a “key” employee in the discovery dispute letter, they offer very little support
3 for this contention. See Dkt. No. 122 at 3-4. Thus, it is not possible to conclude from the parties’
4 discovery dispute letter alone that Google improperly delayed implementation of a litigation hold
5 with respect to Mr. Boyer. Further, except for the “experiment” that is the subject of a separate
6 disputed privilege claim, see Dkt. No. 135, plaintiffs do not contend that Google failed to preserve
7 or produce the network data analyses Mr. Boyer said he conducted at least once per year.
8 Plaintiffs do not offer any persuasive argument or support for the proposition that Google
9 failed to timely issue litigation holds for any other document custodian.
10 C. Improper Privilege Claims
11 With respect to Google’s privilege claims, plaintiffs seek an order directing Google to
12 search its existing custodians’ records using certain search terms, like “Vegas” and “fake
13 privilege,” so that plaintiffs may ascertain whether Mr. Boyer or any other witnesses participated
14 in Google’s “communicate with care” trainings. Dkt. No. 122 at 4-5. Plaintiffs again cite In re
15 Google Play Store Antitrust Litigation, in which Judge Donato found that Google had engaged in
16 a disturbing practice of instructing its employees to copy counsel on communications and other
17 documents to manufacture claims of “fake privilege” where the documents were not, in fact,
18 privileged. Id. at 4 (citing In re Google Play Store Antitrust Litigation, 664 F. Supp. 3d at 984).
19 Plaintiffs’ demand for relief is premature. Google has not asserted any claims of privilege
20 so far, apparently because the parties agreed to defer an exchange of privilege logs until after the
21 close of discovery. See Dkt. No. 156 at 60:10-18. As plaintiffs do not identify any privilege
22 claims that they believe reflect the improper manufacture of “fake privilege,” they provide no
23 justification for the order they seek. As discussed during the hearing, the Court expects Google’s
24 outside counsel to rigorously scrutinize any documents with indicia of privilege—such as counsel
25 being copied on an email—to ensure that Google’s privilege log contains only genuine claims of
26 privilege or work product. See id. at 61:4-63:23.
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1 |} IV. CONCLUSION
2 For the reasons explained above, the Court concludes that plaintiffs have not shown a
3 specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s
4 || (oranyone else’s) chat messages contain relevant evidence that was not properly preserved, and
5 thus there is no justification for an order requiring Google to run the search terms plaintiffs
6 || propose through the documents collections for all Google custodians and witnesses. As for the
7 other information plaintiffs seek, Google has already disclosed that it took affirmative steps to
8 automatically preserve chat messages for all custodians in this action in May 2023 and that it did
9 || not issue a litigation hold for Mr. Boyer until April 2024. On the record presented, the Court
10 || concludes that Google need not make further disclosures regarding its efforts to preserve Mr.
11 Boyer’s documents. Finally, with respect to plaintiffs’ concern regarding the propriety of
12 || Google’s privilege claims, as no privilege claims have been asserted at this time (apart from the
13 dispute at Dkt. No. 135), the Court finds no justification for the relief plaintiffs seek on this point.
IT IS SO ORDERED.
3 15 Dated: December 3, 2024
16
Virginia K. DeMarchi
Z 18 United States Magistrate Judge
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