[HN Gopher] Judge finds Google destroyed evidence and repeatedly...
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Judge finds Google destroyed evidence and repeatedly lied to the
court [pdf]
Author : ocdtrekkie
Score : 232 points
Date : 2023-03-29 20:32 UTC (2 hours ago)
(HTM) web link (storage.courtlistener.com)
(TXT) w3m dump (storage.courtlistener.com)
| badpun wrote:
| It's not "Google" (corporations don't exist in the physical
| world, so they can't act in it), it was specific people at Google
| who destroyed evidence or lied to court.
| ocdtrekkie wrote:
| Perhaps the solution then is to identify every individual who
| chose to keep chat history off despite awareness of the
| litigation hold (particularly those where evidence exists here
| showing it was an intentional choice), charge them with
| contempt of court, and put them in jail for a year or so. It's
| a crime, you can get jail time for it, and if you do it enough
| times, people will pay attention to it.
| brutusurp wrote:
| [flagged]
| salawat wrote:
| More accurately, it's not the gun, it's the people
| weilding/operating it...
|
| Except corporations are magical things that shield you from
| consequences of doing illegal things apparently, so nope,
| Google did it.
| SegFaultx64 wrote:
| What's funny about this take is I can't tell if it's super
| leftist and "lock up the bankers" or super capitalist and "we
| will never know show did this".
|
| Schrodinger's Comment
| newfonewhodis wrote:
| Then why does "Google" get tax benefits and not individuals?
| badpun wrote:
| Why do corporation pay taxes is a good question in the first
| place. The same income is taxed twice - at corporate level
| first, and then when dividends are paid out (or, in case of
| buybacks, when shareholders give back their shares to Google
| in exchange for the profit that was already taxed). From what
| I've seen at my very cursory look at taxation policy
| textbooks, the official policy is that taxes don't have to
| make sense or be fair. They just have to be accepted enough
| by the population to not stir up trouble, and raise enough
| money for state to function. Hence the double taxation of
| corporate profits.
| capableweb wrote:
| But when things go right, Google reaps most of the benefits,
| individuals just get a small piece of the pie. But when things
| go wrong, you want to blame the individuals instead of the
| group?
| lcnPylGDnU4H9OF wrote:
| What does it mean when "Google reaps most of the benefits"?
| How does that manifest if not as individual gain?
| bobbylarrybobby wrote:
| I'm pretty sure those with equity in google get _exactly_
| what google makes redistributed to them, minus taxes and
| whatever they choose to reinvest in the company.
| CodexArcana wrote:
| It's the American way.
| KRAKRISMOTT wrote:
| _He left Russia for freedom and the American way, and he
| got Franz Kafka and Goldman Sachs._ - Flash Boys
| bbarnett wrote:
| _He left Russia for freedom and the American way, and he
| got Franz Kafka and Goldman Sachs. - Flash Boys_
|
| Which was far better than Russia still, the end.
| badpun wrote:
| Not Google. Owners of Google - so, specific people again.
| lisasays wrote:
| _Corporations don 't exist in the physical world, so they can't
| act in it_
|
| They very much exist in the legal world, and are accountable
| for the actions of employees acting under their direction.
|
| According to, you know, those fussy pieces of paper that their
| owners signed (and presumably read) when they agreed to
| incorporate.
| knome wrote:
| Corporations are responsible for the actions of those they
| employ.
|
| If google publishes an option to press a button to violate the
| law to its employees, they are responsible for those that chose
| to click it.
| adrianmonk wrote:
| Items 30-32 (from p. 9) seem pretty significant. Basically,
| other stuff like Gmail automatically went on litigation hold
| (where records are preserved), but Chat didn't. Google did warn
| employee about the problem with this and told them not to use
| Chat for any topics subject to litigation hold. But they left
| it up to employees to actually do that.
|
| And, very predictably, of course they didn't. Whether it's
| because they were careless, unaware, intentionally trying to
| hide things is another question. Regardless, it was an
| arrangement that basically guaranteed this sort of problem
| would happen.
| melenaboija wrote:
| It is Google and inside Google some specific individuals.
| Corporations are part of the society and their capital is its
| representation.
|
| Corporations have to be liable and whoever takes benefits has
| to take this.
| pessimizer wrote:
| Google the company shouldn't be used as a mask for individual
| Google employees. If you find that employees are being used
| as scapegoats for companies, it's an indication that you
| haven't moved high enough in the org chart with your
| indictments.
| sam0x17 wrote:
| Yeah, side note we need corporate death penalty
| kolinko wrote:
| Antitrust is akin to this, with corporations being split
| into much smaller and way less powerful entities - it
| happened to AT&T, and Microsoft was close to getting
| sentenced as well in 1990s.
| pleasantpeasant wrote:
| Individuals need to be punished if they do something evil.
|
| It's too easy to hide behind your corporation/business when
| your company ends up doing some serious environmental
| disaster.
| kyleplum wrote:
| Isn't that what happened to SVB?
| birdyrooster wrote:
| That was more like a public lynching
| arrosenberg wrote:
| No, SVB failed as a result of a bank run. What OP is
| suggesting is more akin to Arthur Andersen after Enron.
| carabiner wrote:
| A few bad apples. A few bad cops. A few bad prison guards.
|
| Everyone is guilty of something. So is no one guilty of
| anything?
| kelseyfrog wrote:
| The last part goes:
|
| If everyone is guilty of something then politics and power
| decide who gets punished.
| codegeek wrote:
| Reminds of the infamous Mitt Romney quote "Corporations are
| people".
| koboll wrote:
| The point of a corporation is to be a legal person that is
| considered as a physical person in various ways for purposes of
| a lawsuit.
|
| That's literally why it has the Latin root corp, meaning body,
| in the name.
| ocdtrekkie wrote:
| More plaintext summary at Ars for those looking for the Cliff
| Notes version: https://arstechnica.com/tech-policy/2023/03/judge-
| finds-goog...
|
| This pertains both to the lawsuit from Epic Games as well as from
| the Department of Justice.
| AlbertCory wrote:
| > The record demonstrates otherwise. An abundance of evidence
| establishes that Google employees routinely used Chat to discuss
| substantive business topics, including matters relevant to this
| antitrust litigation.
|
| > Google left employees largely on their own to determine what
| Chat communications might be relevant to the many critical legal
| and factual issues in this complex antitrust litigation.
|
| All true. I'm just glad I wasn't subpoena'ed.
|
| "Off the record" on a chat was often interpreted as "anything
| goes" including by people who should have known better. It should
| not have been, and I definitely heard lawyers say "if it's
| something you wouldn't want to come out in court, then don't say
| it via the computer, whether it's on OR off the record."
| alach11 wrote:
| I wonder how corporations are going to adapt to a world where
| more and more meetings are transcribed and summarized by
| language models. Adopting that technology, while it's a
| productivity boost, will expose companies to vastly greater
| amounts of liability. There are a lot of comments that can get
| made off-hand in a meeting that would never make it into chat,
| let alone an email.
| tracker1 wrote:
| Some businesses, not sure on google, will actually have lawyers
| on _most_ meetings in order to circumvent subpoenas as it 's
| "protected" discussions that way... I don't recall the details,
| just rememember seeing a report on the practice.
| aikinai wrote:
| Google's legal training specifically says that this won't
| work and don't do it anyway.
| gumby wrote:
| Just having a lawyer in the room doesn't make the
| conversation privileged. It's a conversation _with the
| lawyer_ that is privileged, so they actually have to be a
| participant.
| runnerup wrote:
| Uhh...it's also not privileged, if the lawyer is
| participating in the discussion about ongoing planning of
| criminal activity.
|
| http://doctorcleveland.blogspot.com/2018/04/don-corleones-
| gu...
|
| > [The lawyer] Hagen is not only party to that decision but
| party to a detailed discussion of methods. He cannot
| pretend attorney-client privilege here either.
| AlbertCory wrote:
| What @vkou said. Just including the lawyer doesn't make it
| privileged.
| runnerup wrote:
| "If you're committing an ongoing crime and you involve your
| lawyer in it, there's no privilege involved. _That 's not an
| attorney. It's an accomplice._"
|
| http://doctorcleveland.blogspot.com/2018/04/don-corleones-
| gu...
|
| > Later on, when Don Corleone is incapacitated, [the lawyer]
| Hagen sits in on a five-person strategy meeting where at
| least three murders are ordered. Hagen can't claim attorney-
| client privilege for any of that. Passing the bar is not a
| license to kill. Hagen is sitting there when his foster-
| brother Sonny orders a disloyal subordinate named Paulie
| Gatto killed. If the Gatto murder ever went to trial, Hagen
| would not be a lawyer but a defendant.
| bmitc wrote:
| Sounds like the comment you replied to is a case of this:
| https://www.youtube.com/watch?v=75iv3RKQUAM
| vkou wrote:
| I've always been told by corporate training that unless a
| lawyer is being asked a _particular_ legal question, simply
| including them in a conversation does not raise a lawyer-
| client confidentiality shield.
| twoodfin wrote:
| If you want to hear SCOTUS explore the limits of attorney-
| client privilege, including extensive discussion on just this
| practice, the oral arguments for _In re Grand Jury_ are well
| worth a listen:
|
| https://www.oyez.org/cases/2022/21-1397
|
| (SCOTUS ultimately decided to punt the case.)
| sebzim4500 wrote:
| It's a useful reminder not to pay attention to legal commentary
| from HN, most of the comments were saying that Google did nothing
| wrong w.r.t. these messages.
| user982 wrote:
| E.g.: https://news.ycombinator.com/item?id=35224167
| bcrosby95 wrote:
| Ah, the stodgy old "only ever discuss things with experts"
| advice.
| danaris wrote:
| No, more like "don't listen to smug programmers when they
| tell you they have a foolproof strategy for beating the legal
| system that relies purely on technology."
| sebzim4500 wrote:
| More that no one is as smart as the average HN user thinks
| they are.
| hot_gril wrote:
| The disappearing chat messages were a pain in the ass for
| employees too.
| compiler-guy wrote:
| "The disappearing chat messages were a pain in the ass for
| employees too."
|
| This disappearing chat messages _are_ a pain in the ass for
| employees, but they _were_ a pain in the ass for employees too.
| zamnos wrote:
| there's a group to join to enable history by default.
| hot_gril wrote:
| It still has a timeout, just a longer one, and there's some
| caveat about the other side sending first that I forget. The
| only solid solution is to discuss everything in a space
| instead of a regular group/1:1 chat.
| mike_d wrote:
| Getting yourself put on legal hold was also great for
| email/chat retention.
| xen0 wrote:
| This doesn't work when someone else outside of the group
| initiates a conversation.
|
| It's a fantastic feature; meaning I am never distracted on a
| European Monday morning by what someone sent me on an
| American Friday afternoon. ;)
| tiahura wrote:
| _Even so, the principle of proportionality demands that the
| remedy fit the wrong, and the Court would like to see the state
| of play of the evidence at the end of fact discovery. At that
| time, plaintiffs will be better positioned to tell the Court what
| might have been lost in the Chat communications._
|
| No sanctions for now.
| fsckboy wrote:
| > _The Court has repeatedly asked Google why it never mentioned
| Chat until the issue became a substantial problem. It has not
| provided an explanation, which is worrisome, especially in light
| of its unlimited access to accomplished legal counsel, and its
| long experience with the duty of evidence preservation._
|
| courts never stray "outside the case" but I wish they had said
| "...and google's long experience saving every scrap of
| information about everybody on the planet they can find, so weird
| they would delete this information"
|
| ianal, but i think when a court finds you have deleted evidence,
| that the information deleted is assumed to be evidence against
| you. It's not the direct sanction against this behavior that is
| the worst part, but whatever the case is about going against you.
| dragonwriter wrote:
| > courts never stray "outside the case"
|
| They do, regularly, otherwise the entire concept of "obiter
| dictum" wouldn't exist.
|
| > ianal, but i think when a court finds you have deleted
| evidence, that the information deleted is assumed to be
| evidence against you.
|
| The court can (rough summary of Rule 37 of the Federal Rules of
| Civil Procedure)
|
| (1) Itself (in a bench trial), or by direction to the jury (in
| a jury trial), allow that to serve as the basis for adverse
| inference as you describe, or
|
| (2) Simply direct a finding of fact against the party who does
| that (bypassing the jury, in a jury trial), or
|
| (3) Strike any claims of the party at fault that the discovery
| touches on from the case entirely, or
|
| (4) Dismiss the case (if the party is the plaintiff) or render
| summary judgement against the party (in any case),
|
| (5) Treat the failure as a contempt of court and sanction it
| that, or
|
| (6) any combination of those (and a few other things) that it
| thinks is appropriate.
| rodgerd wrote:
| > i think when a court finds you have deleted evidence, that
| the information deleted is assumed to be evidence against you
|
| This is why Alex Jones lost his civil actions: he was so
| intransigent about refusing to produce evidence that the judge
| determined he was guilty.
| more_corn wrote:
| Also when his lawyer accidentally provided the evidence it
| showed he was guilty.
| ocdtrekkie wrote:
| > i think when a court finds you have deleted evidence, that
| the information deleted is assumed to be evidence against you
|
| This is the concept of "adverse inference", and Epic has indeed
| requested the court instruct the jury of this. However, at this
| time that hasn't been decided by the court.
| dragonwriter wrote:
| The court might do more or (less likely, as I read the order)
| less than that in this case, having explicitly said it wants
| to see the state of play of evidence at the end of discovery
| before making a decision, and only ruling out "terminating
| sanctions" (i.e., summary judgement now against Google) at
| this point.
| [deleted]
| Scubabear68 wrote:
| Google must have thought the court was a customer.
| MBCook wrote:
| So will they be fined or have some other punishment? Or maybe
| there will be a future hearing to determine that?
| bbunix wrote:
| Yes, it's at the end of the document. Penalties will be
| assessed once fact discovery is complete. Monetary damages of
| legal costs related to this issue are to be presented to the
| court by the plaintiff.
| hanniabu wrote:
| It's worth it b/c corporations only get penalized with measly
| fines
| henriquez wrote:
| Hopefully Google gets shut down and its board of directors are
| arrested.
| drstewart wrote:
| Governments should be in the habit of shutting down any and
| all enterprises at a drop of a hat. Any infraction should
| result in immediate termination + mass arrests as you
| correctly point out. Countries that have taken this approach
| (i.e. Cuba, Zimbabwe) have shown great success and
| flourishing, thriving economies.
| pessimizer wrote:
| We say, as a bill winds through Congress to force the sale
| of TikTok.
| Nevermark wrote:
| TikTok is interesting in all kinds of ways, across all
| kinds of dimensions.
|
| To me, the intersection of issues does create a special
| case.
|
| There is China's suppression of free speech within China
| overall, including its suppression of TikTok. Its sister
| app Douyin is heavily censored. This includes its lack of
| business/market reciprocity by banning Facebook, etc.
|
| Then there has been China's censoring of posts on TikTok
| (at least in the past, claimed to be no longer the case).
|
| Chinese governments institutionalized oversight and
| access options into any level of its countries
| businesses, ... China's general international propaganda
| efforts take on a different level of meaning when they
| include control of hugely popular consumers social
| networks.
|
| I don't think there is any simple or obvious principle
| based solution to TikTok.
|
| _And of course, related to this whole discussion, China
| isn 't going to disclose, or let any company in its
| influence disclose, any of its troublesome behavior._
|
| Making even conspiracy level doubts about TikTok's actual
| motives and behavior reasonable to entertain in a legal
| sense, since we know China/TikTok will be intransigent
| about any kind real open analysis of that they are
| actually doing or not at the China's governments behest.
|
| China does not provide its own judicial review process to
| check its own behavior, supply any constitutional or
| legal commitments to hold itself in check, provide any
| cooperation with outside oversight, or have any
| reciprocal agreements with the US to cooperate in
| limiting information warfare.
| Ekaros wrote:
| Other reasonable option could be to remove the limited
| liability of corporations and just throw all shareholders
| to couple years of slave labour. At least in countries like
| USA where slavery is fully legal and costitutional.
| darth_avocado wrote:
| People who directly contributed to destroying evidence should
| also be arrested the same way you would for destroying
| evidence in any other crimes. (Even if you're claiming
| negligence)
| [deleted]
| dragonwriter wrote:
| > People who directly contributed to destroying evidence
| should also be arrested the same way you would for
| destroying evidence in any other crimes.
|
| This is not a criminal case, so "evidence in any other
| crimes" is inappropriate.
| gsatic wrote:
| We haven't yet figured out how to shutdown cancer once they
| get past a certain scale. Large tech firms are like cancer is
| what the last two decades have taught us.
| tracker1 wrote:
| "too big to fail" pretty much sums it up... roughly
| equivalent to, we do a lot of campaign funding.
| pessimizer wrote:
| We didn't prosecute the CIA for destroying videotaped
| evidence of torture at numerous black sites, and promoted the
| woman who ordered it to CIA Director. Google will ultimately
| benefit from destroying evidence, which is why they did it.
| timemct wrote:
| I've often thought that when a company, especially one as big
| as Alphabet/Google, gets fined, it's simply seen as an
| operating cost and not as a motivator to do better.
| Gibbon1 wrote:
| Random thought people say you can't put a corporation in
| jail.
|
| Well they're wrong. You could sentence the board to serve a
| stint in jail. Or management. Or even everyone that works
| there.
|
| Want to talk about lighting a fire under people.
| tracker1 wrote:
| I look at so many issues in the US... the East Palistine
| train derailment and SVB bank... and wish that would
| actually happen (to sr mgt and boards) in practice.
| Ekaros wrote:
| Clearly fines aren't sufficiently high. I think we need to
| scale them with revenue. Like towards 25-50%. Maybe with some
| payment plan if needed taking money from employer/executive
| bonuses, stock buybacks and dividends until it is paid with
| full interest.
| verisimi wrote:
| So do the execs at google. And what is "better" anyway?
| Morality won't pay the bills.. Engineering society to do
| whatever it is you want society to do is good business
| however.
|
| You'd hope this is where government and its legislative arm
| would step in to speak up for the 'citizens' but in fact,
| government is just the other wing of the same bird.
| rodgerd wrote:
| The reason that banks generally take AMLAT rules so seriously
| is that the fines are vastly higher than any profit that can
| be generated by breaking them. Where I live they're in the
| order of up to a million _per transaction_ that violates the
| rules.
|
| CBA in Australia was fined $700 million and Westpac $1.3
| billion for mere tens of thousands of transactions that were
| in breach. They have spent a lot of time and money fixing
| their shit since then, unsurprisingly.
|
| Fines that punch through to individuals are another great
| motivator. Health and safety rules suddenly started getting
| taken a great deal more seriously in my neck of the woods
| when managers became personally liable for up to $200,000 for
| breaches.
| Tuna-Fish wrote:
| What's in play here is not a fine, but courtroom sanctions that
| potentially hurt their case.
|
| For example, the most powerful remedy Epic has asked from the
| court is "adverse inference", which would mean that the judge
| tells the jury that instead of judging the case on the basis of
| evidence presented by both parties, they should consider
| absence of evidence to be in favor of Epic. This can be quite
| devastating for your case.
| Forbo wrote:
| "Organize the world's information and make it universally
| accessible and useful"... Except when it makes us look bad.
| livelielife wrote:
| with all this multiverse stuff... I suppose only whomever is
| part of google's universe can access it now. the rest are now
| in the "multiverse".
| pessimizer wrote:
| Typical.
|
| Google: Remembering the number and types of pets we think you
| may own, for decades, but quietly destroying information about
| ourselves in a process consistent with how that information is
| classified under our recently updated data retention policy.
| blibble wrote:
| I'm sure the AI this company will produce will "do no evil"
| tracker1 wrote:
| I'm absolutely certain it will be biased in much the same way
| the general search and YouTube are.
| treeman79 wrote:
| [flagged]
| davidthewatson wrote:
| How's this working out for them?
|
| https://abc.xyz/investor/other/code-of-conduct/
|
| Doesn't seem like the transformation from "don't be evil" hit its
| intended ethics target.
| livelielife wrote:
| if it were possible to do so (if they were a human) they would be
| put in jail
|
| but that would mean nobody can use google anymore cuz they're in
| jail
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