You don’t have that right when you’re under criminal investigation. It doesn’t matter if it’s a phone call, the government will get a warrant to wiretap you legally and then use the evidence in court to prosecute you.
This is civil litigation, not criminal. This is also not related to a wiretap.
And even if it had been to have no obligation to _create_ records even then.
Google's policy is isomorphic to "don't discuss these legally sensitive matters except via the phone" and the DOJ wants sanctions because no one took and retained notes from the calls.
Except keeping those conversations on the telephone and not taking notes is unambiguously legal and a common practice... In google's case "phone" is replaced with unlogged chat.
The differential treatment is discriminatory. The ephemeral chat serves an identical purpose to a phone call, but is compatible with people with different communications needs.
One need not assume bad faith for wanting to have discussions off the record: "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." casual comments, jokes, confusion, or exploration taken out of context can be easily misconstrued. Just the cost of having to review more potentially relevant material in discovery can be devastating.
People also cannot come to understand their legal obligations unless they're free to discuss them without fear that any little misstatement or bad phrasing will turn around and burn them-- and these discussions don't happen exclusively with lawyers in the room as behaving legally and ethically is everyone's responsibility (in spite of what lawyers in their effort for full employment sometimes want you to believe!).
