Judge orders discovery sanctions against Google in antitrust cases

(CN) — A federal judge ordered sanctions for Google Tuesday in a multidistrict litigation case after the global technology giant was found to have not adequately preserved communications that were exchanged internally on its Chat message system.

Plaintiffs said Google’s policies of not saving correspondence deprived them of valuable evidence in the proceedings involving multiple antitrust cases challenging Google’s Play Store practices as anticompetitive.

“At the heart of this dispute is a simple question: Did Google do the right thing with respect to preserving Chat communications in this case? There is no doubt that Google was perfectly free to set up an internal messaging service with any retention period of its choosing for employees to use for whatever purposes they liked,” U.S. District Judge James Donato wrote in the ruling.

“The overall propriety of Chat is not in issue here,” added Donato, from the Northern District of California. “What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties it was abundantly familiar with from countless prior cases. The record establishes that Google fell strikingly short on that score.”

The sanctions emanate from multiple antitrust cases challenging Google’s Play Store policies as anticompetitive. The plaintiffs are Epic Games Inc., attorneys general of 38 states and the District of Columbia and the Match Group.

There is also a class action against Google by software developers that is in the process of settling, but that case stands on its own and is not part of this case.

The court had directed both parties to coordinate discovery with an eye toward containing costs and burdens. This succeeded except for one issue: many of the chats were missing. The plaintiffs were expecting internal communications among Google employees.

In October 2021, Google said that Google Chats are typically deleted after 24 hours, and that it had not suspended the auto-deletion even after the litigation began. Google chose instead to let employees make their own personal choices about preserving chats, Donato wrote Tuesday.

That led to the plaintiffs to seek sanctions in October 2022, which resulted in substantial briefing by each side.

The court directed defendant Google to produce to plaintiffs in February 2023 approximately 52,000 additional chats, after which both sides filed supplemental briefs which addressed the new evidence.

Google trained employees on how to handle written communications, often with lawyers as teachers. The training gave specific instructions to Google employees about strategies for making their emails and other communications “protected by the attorney-client privilege,” according to the ruling.

While Google maintained that its Chat message system is designed as a social outlet for employees, Donato disagreed.

“An abundance of evidence establishes that Google employees routinely used Chat to discuss substantive business topics, including matters relevant to this antitrust litigation,” wrote Donato.

Some Google employees were on a “litigation hold,” which instructs them to not use Google Chat to “discuss any topics that are related to their legal hold.” Also, “if they do find themselves in a conversation that strays into a topic related to the legal hold, they’re asked to turn history on at that point to make sure that those messages are properly preserved," Donato wrote.

Google did not check to see if employees in charge of preserving relevant Chats as directed by the hold notice did so, and did nothing in the way of auditing or monitoring Chat preservation.

There is no evidence establishing that Google did any individualized follow-up on Chat preservation with the hold recipients, including those designated as custodians, Donato wrote in his ruling.

“Overall, the record demonstrates that Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat preservation instructions, and sometimes disregarded the instructions altogether," Donato wrote.

Donato concluded that Google left employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in the “complex antitrust litigation.”

Donato ordered Google to pay the plaintiffs’ attorneys’ fees for bringing the Rule 37 motion, including the joint statement that preceded the motion and the evidentiary hearing and related events.

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