DoJ Alleges Google Deleted Evidence In Antitrust Case

The US Department of Justice (DoJ) has levelled a serious misconduct allegation against Alphabet’s Google in relation to its antitrust case against the tech giant.

The DoJ has alleged that Google “systematically destroyed” instant message chats every 24 hours – messages that it was required to save during the antitrust investigation.

Indeed in the filing that became public on Thursday, the DoJ alleged Google violated federal rules to preserve potentially relevant communications for litigation.

DoJ allegation

The DoJ alleges that as a result of Google’s default to preserve chats for only 24 hours unless an employee opts to turn on history for the conversation, “for nearly four years, Google systematically destroyed an entire category of written communications every 24 hours,” the department alleged in the filing.

The DoJ states that Google should have adjusted its defaults in mid-2019 “when the company reasonably anticipated this litigation.”

Instead, it relied on individual employees to decide when chats were potentially relevant to future litigation, the department said.

“For years, Google empowered, and even encouraged, its employees to engage in ‘history off’ written communications – known by Google employees as ‘off the record’ chats – which were then automatically destroyed after 24 hours,” the DoJ alleged.

“Google even trained employees that ‘off the record’ chats, also known as Google Hangouts or instant messages, are ‘[b]etter than sending [an] email’ and ‘not retained by Google as emails are.’” it added.

“Unsurprisingly then, Google was aware users often had ‘off the record’ chats ‘to discuss sensitive topics,’” it alleged in the filing. “As we now know, over the last four years, Google routinely destroyed these written communications. In fact, Google continued automatically deleting these ‘off the record’ chats after it reasonably anticipated litigation, throughout the United States’ investigation, and even when the company became a defendant in this litigation – every 24 hours up until 8 February 2023.”

Perhaps even more serious is that the DoJ investigators have alleged that Google “falsely” told the government it had ”‘put a legal hold in place’ that ‘suspends auto-deletion.’”

The government added that “at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications.”

Google response

However Google has denied the DoJ allegations and said it has been co-operating with the DoJ.

A Google spokesperson told CNBC in a statement that company officials “strongly refute the DoJ’s claims. Our teams have conscientiously worked for years to respond to inquiries and litigation. In fact, we have produced over 4 million documents in this case alone, and millions more to regulators around the world.”

The alleged issue is one that previously came up in Epic Games’ antitrust litigation against Google, filed back in August 2020.

According to CNBC, Epic Games submitted exhibits in that case that seemed to show some Google employees believed chats were a safer place to conduct sensitive conversations. For example, one exhibit reportedly showed an employee comment on a document that says “Since it’s a sensitive topic, I prefer to discuss offline or over hangout,” referring to Google’s chat product.

The Epic Games versus Google court case will be heard before a federal judge in the Northern District of California this year, in two evidentiary hearings CNBC reported.

At one of those hearings on 31 January, Judge James Donato indicated he would be open to a kind of adverse jury instruction, but one that would allow the jury to draw its own conclusions on what the deletion of messages means for the case.

The DoJ alleged that even after Epic confronted Google about the chat-deletion concerns in that case, the tech giant still withheld its deletion policy from the federal government “and continued to destroy written communications in this case.”

The practices denied the federal prosecutors the chance to view “candid discussions between Google’s executives, including likely trial witnesses,” the government claimed.

According to CNBC, the Justice Department is asking that the court hold that Google violated a federal rule of civil procedure by destroying the chats; order a hearing to figure out how to sanction the company; and remedy the alleged destruction of evidence and order it to provide more information about its chat practices.

Antitrust lawsuits

Alphabet’s Google is confronting a number of antitrust lawsuits from US authorities, besides the Epic Games lawsuit.

Last month the DoJ announced that it along with a number of Attorneys Generals from a number of US states had filed a civil antitrust suit against Google for monopolising multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act.

The DoJ alleged last month that Google now controls the digital tool that nearly every major website publisher uses to sell ads on their websites (publisher ad server); it controls the dominant advertiser tool that helps millions of large and small advertisers buy ad inventory (advertiser ad network); and it controls the largest advertising exchange (ad exchange), a technology that runs real-time auctions to match buyers and sellers of online advertising.

In 2020, the DoJ had also filed a civil antitrust suit against Google for monopolising search and search advertising, which are different markets from the digital advertising technology markets at issue in the January lawsuit.

The Google search litigation is scheduled for trial in September 2023.

Tom Jowitt

Tom Jowitt is a leading British tech freelancer and long standing contributor to Silicon UK. He is also a bit of a Lord of the Rings nut...

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