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May 15, 2010

Spoliation at Street Level?

GoogleTarget An article in today's New York Times describes how Google "inadvertently" collected years of "private information" from unsecured WiFi networks usings its Street View mapping vehicles.  It might have been a tempest in a techno-teapot but for Google's earlier denials of having done such a thing.  It raises two e-discovery questions for you:

1. Should Google anticipate a claim or suit arising from this matter such that preservation obligations attach under applicable law?

2. If so, how and when can Google act on its professed desire to delete the data as soon as possible?

On the first question, consider that Google has seen much scrutiny on privacy issues of late from European regulators, to the point of three Google executives (including its Chief Legal Officer) being convicted on criminal charges in Italy.  Mamma mia, questo è matto!

Add to that the following language from the Times: "But the revelation that the data was collected is likely to set off a firestorm of protest and possibly new legal problems. Google could be accused of intercepting private communications and violating wiretap laws in the United States, although it would most likely argue that it never had any intent to collect or use the data."

When the New York Times reports that you should anticipate claims or litigation, does that serve as sufficient notice to start your preservation engines?

On the second question, I feel for Google.  From one perspective, they want to ameliorate the harm by deleting the data; but, from the perspective of the aggrieved, can the prospective defendant destroy the evidence at the heart of the anticipated claims and suits?  How might Google comply with a regulatory directive to "delete it," if doing so will compromise the rights of private litigants?


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How about this: comply with "deletion" in this way: keep the data, but lock it away from all but very limited access; that is, pursuant only to subpoena or court order; in other words, deletion by quarantine?

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