Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request

Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request
Image: Holley Robinson, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus there is no justification for an order requiring Google to run the search terms plaintiffs propose through the documents collections for all Google custodians and witnesses….”

Plaintiffs wanted more information about “(1) whether Google preserved chat messages for Mr. Boyer and other witnesses; (2) whether Google timely implemented a litigation hold for custodial documents for Mr. Boyer and other witnesses; and (3) whether Mr. Boyer and other witnesses participated in Google’s ‘communicate with care’ trainings.” 

Google’s “communicate with care” program was discussed in Information Governance – Mis(?)-Labeling Documents as Privileged (Mar. 23, 2022), Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV) (May 16, 2022), and “Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail” (Aug. 9, 2024).

In response to the Taylor plaintiffs, Google challenged “unreasonably broad demands for ‘discovery on discovery,’ … [that] are unsupported by any showing that relevant evidence is missing or that Google’s production is deficient or otherwise improper.” It argued that plaintiffs failed to show that “any particular Google custodian used chat messages to communicate regarding any matters relevant to this action.” 

And, Google contended “that plaintiffs had ample opportunity to explore this issue in depositions and otherwise, but ‘made no genuine attempt to determine whether [c]hats were used in a manner that would be responsive to [p]laintiffs’ discovery requests[.]’” In my opinion, that omission was dispositive almost by itself.

As a general matter, discovery of another party’s evidence preservation and collection efforts—or “discovery on discovery”—is disfavored. . .

Id. at *2 (cleaned up).

However, the Taylor court wrote: “Google does not say whether it has determined, based on its own investigations, that any custodian’s relevant chat messages were lost due to a failure to suspend the ‘history off’ functionality.”

Having described the facts, the court then stated the governing legal principle.

As a general matter, discovery of another party’s evidence preservation and collection efforts—or “discovery on discovery”—is disfavored, as such discovery is typically not relevant to the merits of a claim or defense, and is rarely proportional to the needs of a case…. However, such discovery may be warranted if the party requesting it demonstrates that there is a specific deficiency in the other party’s production of documents or other information….Mere speculation about missing evidence is insufficient to allow discovery on discovery. 

Id. at *2 (cleaned up).

Cf. The Hon. Paul W. Grimm, Michael D. Berman, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413 (2008)(discussing the need for a prima facie showing to support discovery about discovery).

Mere speculation about missing evidence is insufficient to allow discovery on discovery.

Id. at *2 (cleaned up).

The Taylor court applied those principles to the facts, noting that: “Plaintiffs have the burden to show that there is some factual basis to conclude that relevant evidence was not preserved.”

The Taylor court concluded that: “Their showing on this point is thin. With one exception discussed below, nothing in plaintiffs’ portion of the discovery dispute letter suggests that any custodian’s chat messages are likely to contain any information relevant to any claim or defense in this case.” Id. at *2.

Plaintiffs made two points. First, “Plaintiffs … point out that Google produced only three chat messages during discovery in this action.” Second, Plaintiffs showed that Google failed to preserve ESI in another case. In that case, Google employees deliberately used “history off” settings to avoid discovery. 

Neither point carried the day for plaintiffs. The Taylor court wrote, “plaintiffs have not shown that Google failed to preserve relevant chat messages across custodians in this case.” [emphasis added]. The Taylor court explained that:

Google’s failure to automatically preserve chat messages in other matters has been well-publicized since at least March 2023, and yet plaintiffs did not ask any of the Google employees whom they deposed whether those employees used “off the record” chat messages to communicate relevant information. More importantly, plaintiffs do not identify any category of information that they sought in discovery that was not produced because it was in chat messages Google failed to preserve.

Id. (emphasis added).

The one exception was Mr. Boyer, a senior staff software engineer. According to plaintiffs, he had testified to use of chats for work on a relevant issue. Id. at *3. Google disputed plaintiffs’ characterization. Id. It contended that he used both chats and email. However, it acknowledged that it had not instituted a litigation hold until Mr. Boyer’s deposition was noted. The court wrote that:

He testified that he communicated with co-workers “regarding network traffic in GMS Core over chat,” but he was not asked any additional questions about the contents of those communications—e.g., whether they were substantive or merely administrative…. He testified that once he received a litigation hold he lost the ability to change his history on/off settings, and that as of the date of his deposition his chat message history was set to “on.” …. Mr. Boyer did not recall whether his chat message history was set to “on” or “off” during prior occasions on which he communicated with co-workers over chat regarding network traffic from 2020 to 2023. [emphasis added].

Id.

The court concluded that Mr. Boyer “likely” had relevant information. 

But, the Taylor court wrote, plaintiffs failed to show that relevant information was in the chat messages that they were seeking. It wrote that plaintiffs “speculated,” but “they cite[d] no evidentiary support for this argument, save that Mr. Boyer used chat messages for ‘work purposes’ including his work relating to network traffic in GMS Core.” Id. at *3.

In my words, the chat messages on the relevant topic may have been “merely administrative.”

The Taylor court added: “Plaintiffs had an opportunity to question Mr. Boyer about what he put in his chat messages, but they did not ask those questions.” Id. at *3 (emphasis added).

As to the timing of the litigation hold notice, plaintiffs’ “offer[ed] very little support” for their contention that notice to Mr. Boyer was untimely. Finding no persuasive argument or support for plaintiffs’ arguments, the request was denied.

ESI motions are fact-sensitive. Plaintiffs did not provide facts:

Plaintiffs claimed during the hearing, that Mr. Boyer “may be the most important witness in the case by far.” …. They did not include or support this argument in their portion of the discovery dispute letter.

Id.

The Taylor court’s holding was: “On the record presented, the Court concludes that Google need not make further disclosures regarding its efforts to preserve Mr. Boyer’s documents.”

For more on discovery about discovery a/k/a satellite discovery a/k/a culpability discovery a/k/a discovery on discovery, see:

For a smattering of various Google decisions, see:

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

Author

  • Miichael Berman's headshot

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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