RESEARCH TRIANGLE PARK – Google intentionally sought to “hide the ball” in a high-profile antitrust case that involves Cary-based Epic Games by automatically deleting employee chat messages that could have been used as evidence in the suit, a federal judge ruled Tuesday, dealing a blow to the tech giant.
The ruling condemns Google’s document preservation practices and their impact on litigation, which could have a broader impact as the company defends a range of suits on multiple fronts.
Epic Games, which has sued Google and Apple both over restrictions put on its global hit title Fortnite, is involved in the antitrust suit and earlier this week it released unredacted information from Google that the company says showed how Google executives manipulated chat information.
‘A few notable excerpts’
After the judge’s ruling Tuesday Epic didn’t comment but did release a statement noting what it called “a few notable excerpts” from the judge’s finding:
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After substantial briefing by both sides, and an evidentiary hearing that featured witness testimony and other evidence, the Court concludes that sanctions are warranted. (Page 1)
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An abundance of evidence establishes that Google employees routinely used Chat to discuss substantive business topics, including matters relevant to this antitrust litigation. (Page 8)
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Google did not check to see if custodians were actually preserving relevant Chats as directed by the hold notice, and did nothing in the way of auditing or monitoring Chat preservation. (Page 9)
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Google…did not reveal [its] intentions [regarding preservation of Chats] with candor or directness to the Court or counsel for plaintiffs. Instead, Google falsely assured the Court in a case management statement in October 2020 that it had “taken appropriate steps to preserve all evidence relevant to the issues reasonably evident in this action,” without saying a word about Chats or its decision not to pause the 24-hour default deletion. (Page 16)
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The Court has since had to spend a substantial amount of resources to get to the truth of the matter, including several hearings, a two-day evidentiary proceeding, and countless hours reviewing voluminous briefs. All the while, Google has tried to downplay the problem and displayed a dismissive attitude ill tuned to the gravity of its conduct. Its initial defense was that it had no “ability to change default settings for individual custodians with respect to the chat history setting,”…but evidence at the hearing plainly established that this representation was not truthful. (Page 16)
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Consequently, on the record as a whole, the Court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation…The Court concludes that Google intended to subvert the discovery process, and that Chat evidence was “lost with the intent to prevent its use in litigation” and “with the intent to deprive another party of the information’s use in the litigation.” Comm. Notes, Subdivision (e)(2). (Page 17)
Google will have to pay legal fees
Google will not face immediate sanctions for its missteps apart from having to cover the legal fees that plaintiffs incurred in bringing the sanctions motion, wrote Judge James Donato in his order. A non-monetary penalty could still be imposed following further court proceedings. But Donato repeatedly criticized Google this week for trying to keep sensitive chat logs out of the record.
“The Court concludes that Google intended to subvert the discovery process, and that Chat evidence was ‘lost with the intent to prevent its use in litigation’ and ‘with the intent to deprive another party of the information’s use in the litigation,'” Donato wrote.
In what Donato described as a “fundamental problem,” Google appeared to turn a blind eye to employees’ liberal use of a chat feature that deletes the logs after 24 hours, according to the ruling. The feature enabled Google employees to have conversations about topics relevant to its app store practices — and the topic of the lawsuit — with greater confidence the messages would not be used in court. Employees were also given the discretion to determine for themselves what constituted conversations that needed to be preserved, Donato wrote.
That was “in sharp contrast” to how Google automatically preserves company emails that are subject to a litigation hold, he added, saying that Google omitted any mention of its practices surrounding chats until it was specifically forced to address the matter by the plaintiffs’ sanctions motion.
The Justice Department has filed a similar sanctions motion against Google in an ongoing antitrust suit over Google’s search business. Though that case is unfolding in a different federal court, Donato’s ruling Tuesday could give other courts more ammunition to reach the same conclusion.
In a statement, Google said it has endeavored to meet its discovery obligations.
“Our teams have conscientiously worked, for years, to respond to Epic and the state AGs’ discovery requests and we have produced over three million documents, including thousands of chats,” said a Google spokesperson. “We’ll continue to show the court how choice, security, and openness are built into Android and Google Play.”
