I Can Haz Prosecushuns?

Matthew G. Saroff
3 min readMar 23


After being told to preserve records by the US Department of Justice, Google continued to have its chats auto-delete in direct contravention of those instructions.

At this point, it’s not enough to make them pay a few bucks, that is just a cost of doing business. You need to frog-march executives out of their offices in handcuffs:

Google defended its use of “history-off chats” for many internal communications, denying the US government’s allegation that it intentionally destroyed evidence needed in an antitrust case. The history-off setting causes messages to be automatically deleted within 24 hours.

The US government and 21 states last month asked a court to sanction Google for allegedly using the auto-delete function on chats to destroy evidence and accused Google of falsely telling the government that it suspended its auto-deletion practices on chats subject to a legal hold. Google opposed the motion for sanctions on Friday in a filing in US District Court for the District of Columbia.

Google said it uses a “tiered approach” for preserving chats. “When there is litigation, Google instructs employees on legal hold not to use messaging apps like Google Chat to discuss the subjects at issue in the litigation and, if they must, to switch their settings to ‘history on’ for chats regarding the subjects at issue in the litigation, so that any such messages are preserved,” the Google filing said.

So, they f$#@ing pinky swear not to use the self-destructing chats. Bullsh$#.

There is a requirement when such a request is made to actively preserve documents, not send out a quiet memo saying, “If you are using chat, and your discussion involves what we are being sued about, please try to remember to turn off the auto-delete function.”


Google’s filing came in response to the US arguing that Google should have disabled auto-delete by default instead of “abdicat[ing] its burden to individual custodians to preserve potentially relevant chat.”

“Google consciously failed to preserve relevant evidence. The daily destruction of relevant evidence was inevitable when Google set a company-wide default to delete history-off chat messages every 24 hours, and then elected to maintain that auto-delete setting for custodians subject to a litigation hold,” US Justice Department of Justice antitrust lawyers told the court on February 23.

The US and states’ lawsuit against Google was filed in October 2020 and alleges that Google illegally maintains monopolies in the markets for search and search advertising through anticompetitive and exclusionary practices. The US said Google “had a duty to preserve employee chat messages” starting in 2019 when it became clear that litigation was imminent.

They could have literally just flipped one switch, and the chats would have been preserved for a total cost measured in pennies.

Also, Google lied about it:

The Justice Department’s motion last month said things happened very differently. “Google systematically destroyed an entire category of written communications every 24 hours” for nearly four years, the government motion said, continuing:

All this time, Google falsely told the United States that Google had “put a legal hold in place” that “suspends auto-deletion.” Indeed, during the United States’ investigation and the discovery phase of this litigation, Google repeatedly misrepresented its document preservation policies, which conveyed the false impression that the company was preserving all custodial chats. Not only did Google unequivocally assert during the investigation that its legal hold suspended auto-deletion, but Google continually failed to disclose — both to the United States and to the Court — its 24-hour auto-deletion policy. Instead, at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications.

The history-off chats are also a subject of dispute in a separate lawsuit filed by Epic Games, which alleged that Google illegally monopolized the market for distribution of mobile apps and mobile app payment processing on Android. Epic filed a motion to sanction Google for alleged spoliation of evidence in October.

It’s clear that Google has been setting its internal chats to auto-destruct by default after 24 hours specifically to obstruct any investigation or lawsuit.

Setting the chats up to do so destroys a significant amount of the utility to their use, because you have no record on Wednesday regarding what you were told on Monday.

Lock them up.