Judge Sanctions Google for Destroying Evidence in Antitrust Case

Google CEO Sundar Pichai looking down
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A federal judge has ruled against Google, finding that the Masters of the Universe intentionally destroyed evidence and providing false information to the court in a recent antitrust case. Judge James Donato stated that the internet giant tried to “to hide the ball” by destroying chat messages.

Ars Technica reports that U.S. District Judge James Donato has ruled that Google must be held accountable for its deliberate destruction of evidence in an antitrust case. The Court’s decision is a component of a multi-district antitrust lawsuit against the tech giant filed by several plaintiffs, including Epic Games, the attorneys general of 38 states and the District of Columbia, the Match Group, and a class of consumers.

Sundar Pichai, senior vice president of Chrome, speaks at Google's annual developer conference, Google I/O, in San Francisco on 28 June 2012

Sundar Pichai, senior vice president of Chrome, speaks at Google’s annual developer conference, Google I/O, in San Francisco on 28 June 2012 ( KIMIHIRO HOSHINO/AFP/GettyImages )

Judge Donato stated that following a thorough investigation that included witness testimony and other evidence, the Court determined that sanctions were appropriate. In his written decision, Donato explained, “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.'”

Breitbart News previously reported that the company was accused of destroying messages in its internal chat system designed to allow employees to message each other without using email:

Google “systematically destroyed an entire category of written communications every 24 hours,” in violation of federal rules seeking to keep chats potentially relevant to litigation, the DOJ said in a filing.

“The Federal Rules of Civil Procedure required Google to suspend its auto-delete practices in mid-2019, when the company reasonably anticipated this litigation. Google did not,” the DOJ said.

“Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats,” the DOJ added. “Few, if any, document custodians did so. That is, few custodians, if any, manually changed, on a chat-by-chat basis, the history default from off to on.”

The Google Play Store app distribution model is central to the antitrust investigation. The plaintiffs claim that by engaging in exclusionary behavior, which has harmed the various plaintiff groups in different ways, Google has illegally monopolized the market for Android app distribution.

In his decision, Judge Donato detailed how Google misled the plaintiffs and the Court about its internal chat auto-deletion procedures. Unless a document custodian has turned on the “history-on” setting, Google deletes chat messages every 24 hours. The judge concluded that Google could have easily made the chat history the default setting for all employees who were the subject of a legal hold, but they purposefully did not.

Donato wrote, “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.” He noted that Google did not reveal its Chat practices to plaintiffs until October 2021, many months after the plaintiffs first inquired about them.

The judge expressed his disappointment and frustration with Google’s conduct, stating, “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.”

He also criticized Google for its initial denial that it had the “ability to change default settings for individual custodians with respect to the chat history setting,” despite the fact that evidence presented during the hearing made it abundantly clear that this claim was false.

Given that Google had access to skilled legal counsel and a wealth of experience in the responsibilities associated with evidence preservation, Donato expressed confusion as to why Google permitted the situation to worsen. He said, “From the start of this case, Google has had every opportunity to flag the handling of Chat and air concerns about potential burden, costs, and related factors. At the very least, Google should have advised plaintiffs about its preservation and related approach early in the litigation, and engaged in a discussion with them. It chose to stay silent until compelled to speak by the filing of the Rule 37 motion and the Court’s intervention.”

Additionally, Judge Donato emphasized the “intentionality manifested at every level within Google to hide the ball with respect to Chat,” noting that particular users were aware of the potential for litigation and valued Chat’s “off the record” features. Additionally, Google as a company had the ability to back up all Chat communications once a legal dispute had started, but chose not to do so without weighing the potential financial costs or other considerations.

Google finally consented on February 7 to change the history setting for all 383 employees who were subject to a legal hold to “on,” at least temporarily, in response to the Court’s decision. Furthermore, the judge noted that these workers would not be able to set the history to “off,” and that Google would consult with the plaintiffs in order to determine which of the 383 recipients of legal holds was the “core set of relevant custodians.”

While Donato has not yet determined how Google should be sanctioned, he stated that the “determination of an appropriate non-monetary sanction requires further proceeding.”

Read more at Ars Technica here.

Lucas Nolan is a reporter for Breitbart News covering issues of free speech and online censorship. Follow him on Twitter @LucasNolan


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