Taylor v. Google LLC

Background

The parties asked the court to resolve a discovery dispute about Google’s document-preservation efforts. Plaintiffs sought information and documents concerning three subjects: whether Google preserved chat messages for Garry Boyer and other witnesses; whether Google timely issued litigation holds for custodial documents; and whether Boyer and other witnesses participated in Google’s “communicate with care” trainings. Plaintiffs argued that this information could show that Google destroyed relevant evidence or made improper privilege claims. They requested searches using proposed terms and a list identifying employees subject to litigation holds, the dates of those holds, and when Google began preserving their chats.

Google characterized the requests as overly broad “discovery on discovery”—discovery into another party’s preservation and collection process. Google argued that plaintiffs had not shown that relevant evidence was missing or that Google’s production was deficient.

Legal standard

The court explained that Google had a duty to take reasonable steps to preserve relevant evidence after learning of the complaint filed on November 12, 2020. That duty included identifying, locating, and maintaining relevant information and, if necessary, suspending document-destruction policies and issuing litigation holds.

The court also explained that discovery generally is limited to nonprivileged information relevant to a claim or defense and proportional to the case’s needs. Discovery into preservation efforts is disfavored, but may be allowed when the requesting party shows a specific deficiency in the other party’s production. Speculation that evidence may be missing is not enough.

Chat messages

Plaintiffs relied in part on another case involving Google in which the court found that employees had used chat settings that automatically deleted messages and that Google had not taken reasonable steps to preserve those messages. Plaintiffs argued that a similar company-wide practice likely affected this case and noted that Google had produced only three chat messages.

Google acknowledged that it did not take affirmative steps to automatically preserve chat messages for custodians in this action until May 2023. The court nevertheless found that plaintiffs had not shown that any particular custodian used chats to communicate relevant information or that any category of information was missing because Google failed to preserve chats. The court noted that plaintiffs had not asked deposed employees whether they used automatically deleted chats for relevant communications.

The court treated Boyer as an exception for purposes of determining whether he likely had relevant documents and information. Boyer had analyzed network data used by GMS Core at least once per year from 2017 through 2024 and testified that he had communicated with coworkers about GMS Core network traffic over chat. Google acknowledged that it did not issue Boyer a litigation hold until April 2024, when plaintiffs first requested his deposition. But the court found that plaintiffs had not shown that relevant information was likely contained in Boyer’s chats. Plaintiffs had not asked him about the contents of those chats, and their argument that the chats might discuss investigations or experiments was speculative.

Litigation holds

The court distinguished the timing of a litigation hold from the handling of Boyer’s chat messages. It found that the discovery dispute letter did not provide enough support to conclude that Google improperly delayed issuing a hold for Boyer. Plaintiffs also did not persuasively support their claim that Google failed to issue timely holds for other custodians. Apart from a separate dispute concerning an experiment, plaintiffs did not contend that Google failed to preserve or produce Boyer’s network-data analyses.

Privilege claims

Plaintiffs sought searches for terms such as “Vegas” and “fake privilege” to determine whether witnesses had participated in trainings that might relate to improperly manufactured privilege claims. The court found this request premature because Google had not asserted privilege claims at that time, apparently because the parties had agreed to exchange privilege logs after discovery closed. Plaintiffs had not identified any existing privilege claim that they believed was improperly manufactured. The court stated that Google’s outside counsel should carefully review documents bearing signs of privilege so that the privilege log would contain only genuine claims of privilege or attorney work product.

Ruling

The court concluded that plaintiffs had not shown a specific deficiency in Google’s document production or a factual basis to believe that Boyer’s or other witnesses’ chats contained relevant evidence that Google failed to preserve. It therefore found no justification for requiring Google to run plaintiffs’ proposed search terms through the document collections of Google’s custodians and witnesses. The court also concluded that Google need not make further disclosures about its efforts to preserve Boyer’s documents and found no justification for the requested relief concerning privilege claims. The order states that it was entered on December 3, 2024, and was signed by United States Magistrate Judge Virginia K. DeMarchi.