A senior Google director was texting with two of the corporate's executives about digital ad pricing when he mentioned that the changes being discussed may lead to lawsuits. He suddenly realized that the chat's history feature was turned on, so the conversation was not routinely deleted and may very well be found by opponents in legal motion.
“The story continues, Jesus,” the director wrote. “Sigh.”
Incidents like this, submitted as evidence in three ongoing anti-monopoly cases against Google, have highlighted what state and federal authorities say are the Mountain View tech giant's longstanding schemes to hide and destroy internal communications made by or against the Regulatory authorities could use it in court.
This tactic led a Virginia federal court judge to conclude that “a great deal of evidence was likely destroyed” and led a San Francisco federal court judge to criticize Google for lying to the court and intentionally producing evidence hidden from opponents.
“It's like they've developed their own moral code, and that moral code is supposed to justify whatever decisions they make,” said Jason Kint, CEO of Digital Content Next, a trade association representing online publishers that’s closely following the cases.
Google said this week that it takes seriously its “duties to preserve and produce relevant documents” in legal motion, pointing to a 2022 court filing from the San Francisco case through which it said it was committed to its obligations to provide Documents “completely complied with”, “by taking over documents”. Robust steps to get relevant chats.” Judge James Donato disagreed.
Donato told a federal court in San Francisco that he would punish Google for destroying evidence. Virginia Federal Court Judge Leonie Brinkema has yet to come to a decision whether to sanction the corporate for “a litany of problems with Google’s approach to evidence collection.” In the District of Columbia federal court, Judge Amit Mehta, who ruled in August that Google held an illegal monopoly on Internet search, declined to punish Google for what he called extraordinary efforts to stop a paper trail, ruling that sanctions weren’t his assessment would change the corporate's liability.
Once firms have reasonable grounds to imagine that internal communications could also be requested by one other party in a dispute, they’re required by law to retain them, no matter whether legal motion has been taken or not.
“The federal courts in particular have very high expectations for the care and prudence with which American companies must preserve documents,” said UC Berkeley Law School lecturer John Steele, a specialist in legal ethics and skilled liability. Federal judges, Steele said, “typically want to see commitment from high levels within a company” to make sure evidence is preserved.
According to judges in recent antimonopoly cases, Google used two tactics to maintain unfavorable information out of court: It let employees discuss matters related to lawsuits or potential lawsuits on a messaging platform where chats can be deleted by default, and it encouraged employees to act inappropriately Involve attorneys in discussions to hide communications under the attorney-client privilege doctrine.
In all three cases, Google is desperately fighting to avoid being broken up as a monopoly, and the judges deeply disapprove of its handling of evidence.
San Francisco: California and three dozen other states and Epic Games against Google
Last 12 months in U.S. District Court in San Francisco, Judge Donato, who led an antimonopoly lawsuit against Google's Play app store, described Google's suppression of evidence as “the most serious and troubling” he had seen as a judge.
In a lawsuit, the states and Fortnite computer game publisher Epic accused Google of perpetuating “a company-wide culture of obfuscation from the very top, including CEO Sundar Pichai.” The evidence was an internal group chat, while Google was already being sued, through which Pichai wrote: “Can we change this group's setting to 'history off'” after which did not delete the “incriminating message” nine seconds later, said the plaintiffs.
Google left employees without legal expertise “largely alone” in deciding which chats needed to be retained and did “nothing” to watch chat retention, Donato wrote in his March 2023 decision.
The company “intended to undermine the process of providing materials to its defendants” and evidence was lost “with the intent of preventing its use in litigation,” Donato wrote. Google also “falsely assured” the court that it had protected evidence and was “untruthful” about chat settings, the judge said.
Google agreed in a February 2023 court filing to enable chat history for its nearly 400 employees whose communications are subject to a retention requirement within the case, without having the choice to disable the history, Donato said in his order.
In December, a jury within the case found that Google had an illegal app distribution monopoly. The judge said he would use court-ordered sanctions to punish Google over deleted chats.
Virginia: US government, California and 16 other states against Google
In the Virginia federal court lawsuit alleging that Google has an illegal monopoly on digital promoting, the director's commentary on the story was entered into evidence. A court filing by plaintiffs in August accused Google of allowing its internal chats to be deleted after 24 hours by default starting in 2008, a change announced in a memo from its lawyers that cited “significant legal and regulatory matters.” began. The company continued the policy until early last 12 months, two weeks after the lawsuit was filed, the filing said.
In a Nov. 5 filing, the federal and state governments linked Google's tactics to its market dominance and alleged that Google trained its employees to “abuse attorney-client privilege and destroy documents” to guard its alleged monopoly .
Judge Brinkema, who oversaw that case, said in an August hearing that Google employees had included lawyers in discussions as a “pretext” to invoke attorney-client privilege. She called the maneuver a “clear abuse.”
Google this week pointed to its August filing within the case, which noted that the 2008 memo asked employees to “take steps to preserve relevant chat messages,” adding: “This is the opposite of the intention to destroy evidence.”
District of Columbia: US government against Google
In another anti-monopoly lawsuit against Google over Internet search, Judge Mehta of the federal court in Washington said in August that he was “amazed by the lengths Google goes to avoid making a paper trail” for regulators and legal opponents. The judge pointed to the automatic deletion of chats and noted that Google has emailed employees “dealing with a sensitive topic” to involve an attorney and mark the message as “attorney/client privileged.” and “to ask the lawyer a question.” The workers “followed that advice diligently,” and as a result, Google's legal department initially withheld tens of thousands of supposedly privileged records that it later turned over to the plaintiffs, Mehta said.
Mehta said in his August ruling that his decision not to penalize Google “mustn’t be construed as condoning Google's failure to preserve chat evidence.”
Google, the judge warned, “might not be so lucky in the next case.”
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