Even though this has apparently come up in another Google legal case, Walker claims he wasn’t previously aware of the phrase — or that intentionally marking things as privileged, just to keep them more private, happens within Google.
He concedes that some Google employees do copy in lawyers, even when no legal advice is being sought or received. (Those are Moskowitz’s, words, not his, but he says yes.)
Walker on how simply labeling documents “attorney/client privilege” is not enough to make them privileged and is not proper.
One of the people who didn’t understand it: Google and Alphabet CEO Sundar Pichai.
And employees under legal hold can’t turn it back off.
“My understanding is we’ve turned history default on for everybody in the company, and that for all cases where we have a litigation hold, we are preserving by default all those messages,” he says.
“She is by no means a rogue example in the evidence I have seen in this case — she is a typical example,” says Judge Donato of Google’s Margaret Lam.
“I don’t want her to be singled out — she is in the unfortunate position of being a testimony giver in court,” says Donato.
“Nor is it just one or two examples,” he adds.
Walker tried to suggest that’s why it doesn’t keep all chats, the way it keeps all emails after a litigation hold. The judge wasn’t having it — he says CEO Sundar Pichai’s testimony refutes that chats weren’t for business.
Now, Moskowitz is suggesting Google did a 180 to turn history on for all employees by default because it “got caught.”
“After we found that employees hadn’t been following the directions we’d given,” says Walker.
“I did not.”
“Nobody did, right?” asks Epic’s attorney.
“I don’t know the answer to that question,” he begins, adding that the assumption was that multiple notices and reminders and a point of contact with legal, etc, would be enough.
“We generally assume that when we give employees directions, they’ll follow the direction and when not sure of them they’ll ask questions,” says Walker.
Walker says he did indeed read the testimony of Margaret Lam, a Googler who initially claimed no lawyer ever talked to her about her preservation obligations and claimed she thought she only had to preserve things that mentioned Epic for this case.
Walker says employees got multiple notices, reminders, and a legal point of contact when there was a legal hold and is following up about Lam’s situation.
Let you know when we get something more concrete.
That might be true, but that is not a good look for Google. Walker seems a bit shaken. Judge Donato is accusing him of “tap-dancing around” and trying to pass the buck.
Now the judge is asking: Why didn’t you just preserve the chats? Why did you leave it up to each individual employee to decide?
“What we did not have the ability to do immediately was to impose litigation holds that would carry across for a subset of individuals to track the various cases” Google was involved in.
The judge isn’t satisfied. “That’s not what I was asking.”
“You tried,” says the judge, turning away, as if giving up on getting a straight answer.
Judge James Donato: “The answer that is not no, the answer to that is yes, based on the record presented to me by the Google witness in January. That fact is carved in stone, don’t dance around it.”
“You’ve had the ability to flip a switch,” says Donato.