In the fast-paced world of digital communication, the legal landscape is constantly evolving. Recent cases involving tech giants Google and Amazon have brought to light critical issues surrounding data spoliation and preserving electronic evidence in antitrust matters. These cases are instructive for in-house attorneys and their outside counsel to understand the risks in corporate use of self-deleting messaging platforms and the best practices for navigating spoliation challenges in the digital age.
In May 2024, the Federal Trade Commission (FTC) filed a Motion to Compel Production of Documents Related to Spoliation against Amazon—the latest development in the FTC’s long-running antitrust lawsuit against Amazon alleging an abuse of dominance by the e-commerce giant.¹ The FTC accuses Amazon of failing to preserve important communications related to the investigation, despite having been notified in June 2019 to preserve all documents. The central allegation is that senior executives, including founder Jeff Bezos and CEO Andy Jassy, used the encrypted messaging app Signal’s auto-deleting feature to automatically erase their conversations on sensitive business matters after a set period.
Similarly, in 2023, the Department of Justice (DOJ) alleged that Google “routinely destroyed” communications between Google employees over the course of several years, thereby frustrating the agency’s ongoing 2020 antitrust suit against Google for monopolizing the search and advertising market. The DOJ states that Google's instruction to its employees to discuss sensitive topics on its Hangouts instant-messaging app, which defaults to auto-deleting messages in 24 hours, was a breach of the Federal Rules of Civil Procedure. Proper observation of the Rules would have required Google to stop its employees from using Hangout’s auto-deleting function as soon as it anticipated the incoming litigation in 2019.
The DOJ’s allegations against Google were especially significant because similar concerns were raised by Epic Games during its antitrust suit accusing Google of anticompetitive practices in relation to its Play Store and restrictions on in-app purchases. Testimony in the trial revealed that Google employees up to and including CEO Sundar Pichai intentionally used Hangouts’ auto-deleting messages, even after they were made aware of their legal obligation to preserve evidence.
While the trial was decided in December 2023 in Epic Games’ favor, the issue of Google’s data spoliation endures. District Judge James Donato, who oversaw Epic v. Google, vowed to continue investigating Google for intentionally and systematically deleting evidence “on my own, outside of this trial.” Judge Donato described Google’s conduct as “a frontal assault on the fair administration of justice.”
While the DOJ and FTC investigations are ongoing, these developments present three important takeaways for legal professionals dealing with preservation obligations in the digital age:
1. The risk of misusing ephemeral messaging:
These cases illustrate that regulators and courts alike are now paying attention to the use of self-deleting messaging apps. This attention is no doubt particularly enhanced in the context of antitrust matters, where internal documents are increasingly regarded as key evidence of anti-competitive conduct. The authorities’ actions also leave no doubt that there will be consequences for corporate misuse of such technology when it undermines legal obligations to preserve data during an investigation or litigation.
For example, in response to Amazon’s misuse of Signal, the FTC has made the case that a preliminary showing of spoliation illustrating the possibility of critical evidence being deleted can overcome typical privilege protections, necessitating the disclosure of preservation-related communications and communications around the use of ephemeral messaging. In the Google antitrust case, the DOJ has asked the court for further disclosure from Google in addition to sanctions to remedy the situation. In Epic v. Google, the jury was permitted to infer that any missing evidence may have been detrimental to Google’s case.
2. In-house attorneys’ ongoing obligations to comply with preservation orders:
A recurring theme in these cases is the authorities’ explicit criticism of in-house legal teams failing to properly implement litigation hold and preservation orders. The DOJ’s case alleges that Google actively lied about its chat preservation policies, falsely claiming that it had put a legal hold in place to suspend auto-deletion, while in reality failing to disclose anything about its 24-hour deletion policy for years after the case began. At the same time, the FTC has highlighted the fact that Amazon’s general counsel not only failed to stop employees from using ephemeral messaging up to three years after the first preservation notices but was even a part of the group of senior executives using Signal throughout its investigation.
While there can be valid uses for self-deleting messaging, legal counsel should make sure their corporate clients are fully cognizant of the repercussions of getting it wrong or risk bearing responsibility. While companies might be tempted to follow Google’s example and provide internal training on the benefits of using self-deleting messaging apps to discuss sensitive topics, such use must not breach preservation obligations.
3. The ever-growing technical challenges for preservation:
One of the key challenges in addressing spoliation issues is the rapid evolution of communication technologies. Ephemeral messaging platforms have become increasingly popular due to their convenience and privacy features. However, they are just one example of modern communication tools.
A charitable view of Amazon and Google’s actions might acknowledge the practical difficulties for legal teams to implement internal legal holds in modern IT ecosystems involving a multitude of different collaboration platforms with huge, international workforces. After all, there is no suggestion in these cases that the standard channels of communication were not adequately preserved, and Amazon makes clear that the company has provided more than “100 TB of data” to comply with the FTC’s investigation. Is it possible that the failure to prevent communication on Signal or Google Hangouts is a result of oversight, rather than malicious noncompliance?
To give appropriate advice for today’s IT landscape, both in-house and outside counsel have a duty to stay informed about technological advancements and their implications for legal proceedings. This includes developing a working understanding of a company’s IT systems, internal communication tools, and relevant retention policies so that preservation orders can be implemented promptly and effectively across all systems. These cases make clear that ignorance or incompetence is no excuse.
Practically speaking, the technical knowledge required is beyond the typical and reasonable skillset of lawyers. The most effective preservation policies will be implemented by legal teams with strong working relationships with their IT and information security counterparts, supported by external data and technology consultants.
Typically, businesses will work with the relevant data management and forensic providers in parallel to proactively identify the available information likely to be within the scope of the inquiry and develop a plan to respond substantively to the Order in the most efficient and cost-effective manner possible. Ultimately, companies must act quickly to establish a strong working team of legal counsel and document management experts to help manage the process of complying with a Section 11 Order, which can help mitigate any significant legal risks and minimize cost and business disruption.
In conclusion, these cases serve as stark reminders of the challenges in complying with preservation orders in the digital age, particularly with antitrust matters where internal communications are a key focus. Ephemeral messaging applications must be used internally with caution, and equivalent risks across other internal technologies must be assessed carefully. Attorneys must be proactive in addressing these challenges, developing their ability to implement robust preservation strategies and staying informed about legal developments in electronic discovery. By doing so, attorneys can effectively navigate spoliation challenges and ensure the preservation of electronic evidence crucial to legal proceedings.
