US federal judge rules Google intentionally sought to “hide the ball” in high profile antitrust case by automatically deleting evidence
Alphabet’s Google division has suffered an embarrassing legal setback, after a US federal judge publicly criticised the firm and ruled it had intentionally deleted chats.
On Tuesday federal Judge James Donato of the northern district of California ruled that Google had intentionally sought to “hide the ball” in the high-profile antitrust case by automatically deleting employee chat messages that could have been used as evidence in the suit.
Judge Donato had issued an order directing Google to produce additional chats records.
This was to test the proposition that a significant amount of case-relevant Google Chat messages categorised as off-the-record had been systematically deleted.
Now he has ruled that Google had deleted messages that could have used as evidence – in a move that could potentially impact on Google’s other antitrust cases.
According to CNN, 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 Donato in his order.
He noted that Google employees are no strangers to document production and discovery obligations, and that “at any given time, Google has thousands of employees who are under a litigation hold for document preservation.”
A non-monetary penalty could still be imposed following further court proceedings. But Judge Donato repeatedly criticised Google 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, CNN reported the ruling as stating.
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, CNN reported. Staff 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.
In a statement, Google was quoted by CNN as saying it had sought 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.”
It should be noted that this ruling comes after the US Department of Justice (DoJ) had levelled a serious misconduct allegation against Google in February in a different antitrust case.
There is a risk that Judge Donato’s ruling Tuesday could give other antitrust courts more justification to reach the same conclusion, CNN noted.
The DoJ had alleged last month that Google “systematically destroyed” instant message chats every 24 hours – messages that it was required to save during the antitrust investigation.
Indeed, the DoJ alleged Google had violated federal rules to preserve potentially relevant communications for litigation.
The DoJ alleged 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 February filing.
The DoJ stated 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.
In January the DoJ 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 had alleged 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.