The 2008 Walker Memo

In recent competition proceedings against Google, multiple courts have discussed whether Google staff were forthright in their remarks (not to mention whether the company preserved and produced documents in accordance with court rules).  See Google Discovery Violations.  Discussions often turn back to a memo sent by Google General Counsel Kent Walker as well as Bill Coughran (then SVP of Engineering at Google).  In the dockets for these cases, this document appears in unformatted monospace with broken spacing between paragraphs, and in image form without indexing or searchability.  I am therefore reposting it here in plain text.

Sent: September 16, 2008 2:09 PM
Subject: Business communications in a complicated world
Confidential/Please Do Not forward

Googlers –

As you know, Google continues to be in the midst of several significant legal and regulatory matters, including government reviews of our deal with Yahoo!, various copyright, patent, and trademark lawsuits, and lots of other claims. Given our continuing commitment to developing revolutionary products and doing disruptive things, we’re going to keep facing these kinds of challenges. So we’ve got two requests of you and one change to announce.

First, please write carefully and thoughtfully. We’re an email and instant-messaging culture. we conduct much of our work online. We believe that information is good. But anything you write can become subject to review in legal discovery, misconstrued, or taken out of context, and may be used against you or us in ways you wouldn’t expect. Writing stuff that’s sarcastic, speculative, or not fully informed inevitably creates problems in litigation. In your communications, please avoid stating legal conclusions. Speculation about whether something might breach a complex contract, or whether it might violate a law somewhere in the world, is often wrong and rarely helpful. So please do think twice before you write about hot topics, don’t comment before you have all the facts, and direct questions regarding continuing litigation holds and any legal and/or regulatory matters involving Google to the friendly (albeit lawyerly) folks at [redacted]@google.com

Second, remember that these same rules apply not just to Gmail but also to Google Talk and all other forms of electronic communication (for example wiki’s, doc’s, spreadsheets, etc.). We end up reviewing millions of pages of these communications as part of producing documents in regulatory and litigation matters — and we’re working together to streamline and simplify that process.

To help avoid inadvertent retention of instant messages, we have decided to make “off the record” the Google corporate default setting for Google Talk. We’ll also be providing this option to our Google Apps enterprise customers. You should see this new default setting taking effect over the next few days. You will still be able to save Talk conversations that are useful to you — but please remember that “on the record” conversations become part of your (more or less) permanent record and are added to Google’s long-term document storehouse. If you’ve received notice that you’re subject to a litigation hold, and you must chat regarding matters covered by that hold, please make sure that those chats are “on the record”.

Finally, remember that even when you’re “off the record”, your chat partner may be recording the conversation, so always take care with what you write. Thanks for your help and understanding on this. Let one of us know if you have any questions.

Bill Coughran

Kent Walker

See also required “Communicate with Care” training.

See also Antitrust Basics for Search Team (March 2011), recommending word choice for Google employees discussing competition matters.