What Happened
In the case of Waymo LLC v. Uber Technologies, Inc., U.S. District Judge William Alsup determined that Uber failed to meet its legal hold obligations by not preserving critical evidence. The allegations centered on Uber employees using ephemeral messaging apps to discuss stolen trade secrets, deliberately evading discovery. Court records showed Uber used Wickr and similar self-destructing message platforms for business communications that should have been preserved under legal hold.
The court found Uber withheld the "Jacobs Letter," which claimed the company used technology specifically designed to thwart legal discovery. Facing evidence of spoliation, Uber settled with Waymo for $245 million in equity.
Timeline
While exact dates for each discovery failure aren't detailed, the pattern of spoliation unfolded as follows:
Initial legal hold period: Uber's obligation to preserve evidence began when litigation was foreseeable. During this time, employees continued using ephemeral messaging apps for business communications.
Discovery phase: Waymo's legal team identified gaps in Uber's production. Critical conversations that should have existed were missing.
Jacobs Letter revelation: The withheld letter surfaced, revealing Uber's deliberate use of technology to evade discovery obligations.
Settlement: Rather than face trial with the spoliation findings on record, Uber agreed to pay $245 million in equity.
Which Controls Failed or Were Missing
No inventory of communication channels: Uber failed to identify all platforms employees used for business communications. You can't preserve what you don't know exists.
Inadequate hold notice scope: Even if Uber issued legal hold notices, they didn't clearly specify that ephemeral messaging apps were included. Employees may have believed their Wickr conversations weren't "real" business records.
No technical controls on auto-deletion: Uber allowed employees to use apps with built-in message destruction during active litigation. The company needed technical controls to disable or override these features.
Missing custodian identification process: Uber didn't systematically identify all custodians who might possess relevant data. If you don't know who's using Wickr, you can't instruct them to preserve it.
No monitoring or verification: Uber had no mechanism to verify that custodians actually preserved data. The company relied on honor-system compliance while employees used tools designed to leave no trace.
What the Relevant Standard Requires
The Federal Rules of Civil Procedure Rule 37(e) governs sanctions for failing to preserve electronically stored information. When you anticipate litigation, you must suspend routine document destruction and take reasonable steps to preserve relevant information.
"Reasonable steps" means:
Identify all potential data sources: This includes every platform where business communications occur, not just email and file servers. If your sales team uses Signal to coordinate deals, that's a data source.
Issue clear, specific hold notices: Your notice must tell custodians exactly what to preserve. "All communications" doesn't suffice when employees don't realize their Slack DMs count as communications. List the platforms by name.
Implement technical preservation measures: You can't rely on employees to manually save self-destructing messages. You need tools that capture data before it disappears.
Verify compliance: Check that custodians received the notice, understood it, and took action. Interview them. Review their devices. Don't assume compliance.
Document your efforts: When a judge asks what reasonable steps you took, you need records showing you tried. "We sent an email" isn't documentation of a preservation program.
The Generally Accepted Recordkeeping Principles reinforce this through the Accountability principle: your organization must assign responsibility for records management and provide adequate resources. You can't delegate legal hold compliance to individual employees without training, tools, or oversight.
Lessons and Action Items for Your Team
Map your communication ecosystem now: Before your next legal hold, inventory every platform your organization uses for business communications. Include:
- Ephemeral messaging apps (Signal, Wickr, Telegram)
- Collaboration platforms (Slack, Microsoft Teams, Discord)
- Social media accounts operated by employees
- Third-party contractor tools
- Personal devices used for work
Don't wait until you're under hold to discover your engineering team has been using Signal for two years.
Draft platform-specific hold language: Your legal hold notice template should include a section that lists communication platforms by name. When you issue a hold, customize this section based on the custodians involved. If you're holding the marketing team, specify their Instagram and Twitter accounts. If you're holding developers, specify their Slack workspaces and GitHub repositories.
Deploy capture tools before you need them: You can't retrofit preservation after messages have already self-destructed. Evaluate tools that can capture ephemeral content in real-time, preserving the full context including edits, deletions, and threaded conversations. Budget for these tools as part of your legal hold program, not as an emergency expense during litigation.
Create a custodian interview protocol: When you issue a legal hold, don't just send the notice and hope for the best. Schedule a brief call with each custodian to:
- Confirm they received and understood the notice
- Ask what communication tools they use (they'll often mention platforms you didn't know about)
- Walk through their devices and accounts
- Document the conversation
This 15-minute investment prevents the "I didn't know" defense later.
Test your hold process quarterly: Run a mock legal hold scenario. Pick a hypothetical matter, identify custodians, issue notices, and attempt to collect data. You'll discover gaps in your process when the stakes are low. If you can't successfully collect from Teams or Slack during a drill, you won't magically figure it out under litigation pressure.
Disable auto-deletion features during hold: Work with IT to identify and disable automatic deletion policies for custodians under hold. This includes email auto-delete rules, Slack message retention limits, and any other automated cleanup processes. Document the date you disabled these features.
The $245 million settlement isn't just Uber's problem. It's a benchmark that plaintiffs' attorneys will cite when arguing you should have known better. Your organization uses the same tools Uber did. The question isn't whether you'll face a legal hold involving ephemeral apps. It's whether you'll be ready when you do.
