A high-level Google director was texting with two of the company’s executives about digital-ads prices when he mentioned that the changes they were discussing could result in lawsuits.
He suddenly realized the chat’s history function was turned on, which meant the conversation would not be automatically deleted and could be found by adversaries in any legal actions.
“History is on, Jesus,” the director texted. “Sigh.”
Incidents like this, which were filed as evidence in three ongoing anti-monopoly cases against Google, have highlighted what state and federal officials say are the Mountain View technology giant’s long-running efforts to conceal and destroy internal communications that could be used by regulators or against it in court.
The tactics prompted a Virginia federal court judge to conclude that a “awful lot of evidence has likely been destroyed,” and a San Francisco federal court judge to criticize Google for lying to the court and intentionally concealing evidence from opponents.
“It’s like they’ve developed their own moral code, and that moral code is to justify whatever decisions they make,” said Jason Kint, CEO of Digital Content Next, a trade association representing online publishers, who has been closely following the cases.
Google stated this week that it takes its “obligations to preserve and produce relevant documents” in legal actions seriously, citing a 2022 court filing from the San Francisco case in which it stated that it had “fully complied” with document production obligations “by taking robust steps to preserve relevant chats.” Judge James Donato didn’t agree.
Donato, speaking in federal court in San Francisco, stated that he will punish Google for destroying evidence. Judge Leonie Brinkema of Virginia’s federal court has yet to decide whether to sanction the company for what she describes as “a whole bunch of problems with how Google approached the preservation of evidence.”
In District of Columbia federal court, Judge Amit Mehta, who ruled in August that Google has an illegal monopoly on internet search, declined to punish Google for what he saw as extraordinary efforts to prevent a paper trail, stating that sanctions would not change his assessment of the company’s liability.
Companies are legally required to keep internal communications if they have reasonable grounds to believe they will be sought by another party in a lawsuit, regardless of whether legal action is initiated.
“The federal courts in particular have very high expectations about the care and prudence with which corporate America needs to preserve documents,” said UC Berkeley law school lecturer John Steele, a specialist in legal ethics and professional liability. According to Steele, federal judges “typically want to see commitment from high levels in a company” to preserve evidence.
According to judges in current anti-monopoly cases, Google used two tactics to keep unfavorable information out of court: allowing employees to discuss matters related to lawsuits or potential lawsuits on a messaging platform where chats would be deleted by default, and encouraging employees to inappropriately add lawyers to discussions in an attempt to hide communications under the attorney-client privilege.
In all three cases, Google is fighting desperately to avoid being broken up as a monopoly, and judges have expressed grave concerns about its handling of evidence.
San Francisco: California and three dozen other states and Epic Games against Google
Judge Donato, who presided over an anti-monopoly lawsuit against Google’s Play app store last year, described Google’s evidence suppression as “the most serious and disturbing” he had seen as a judge.
In a court filing, the states and Fortnite computer game publisher Epic accused Google of having “a company-wide culture of concealment coming from the very top, including CEO Sundar Pichai.” While Google was already being sued, Pichai wrote “can we change the setting of this group to history off,” then failed to delete the “incriminating message,” according to the plaintiffs.
Google left employees with no legal expertise “largely on their own” in determining which chats needed to be kept, and “did nothing” to monitor chat preservation, according to Donato’s March 2023 decision.
The company “intended to subvert” the process of providing materials to its lawsuit opponents, and evidence was “lost with the intent to prevent its use in litigation,” according to Donato. Google also “falsely assured” the court that it had protected evidence and was “not truthful” about chat settings, according to the judge.
In a February 2023 court filing, Google promised to turn chat history on for its nearly 400 employees whose communications are subject to mandatory retention in the case, with no option to turn it off, Donato stated in his order.
In December, a jury determined that Google had an illegal app-distribution monopoly. The judge stated that he would use court-ordered sanctions to punish Google for deleted chats.
Virginia: U.S. government, California and 16 other states against Google
The director’s comment about history being on was used as evidence in a Virginia federal court lawsuit alleging that Google has an illegal monopoly on digital ads.
In an August court filing, the plaintiffs accused Google of deleting internal chats by default after 24 hours beginning in 2008, a change announced in a memo from its lawyers that began with the phrase “significant legal and regulatory matters.” According to the filing, the company continued this policy until early last year, two weeks after the lawsuit was filed.
In a filing on November 5, the federal government and states linked Google’s tactics to its market dominance, claiming that it trained employees “to abuse the attorney-client privilege and destroy documents” to protect its alleged monopoly.
Judge Brinkema, who is overseeing the case, stated in an August hearing that Google employees brought lawyers into discussions as a “smokescreen” to invoke attorney-client privilege. She described the maneuver as “clear abuse.”
Google this week cited its August filing in that case, which stated that the 2008 memo instructed employees to “take steps to preserve relevant Chat messages,” adding, “That is the opposite of an intent to destroy evidence.”
District of Columbia: U.S. government against Google
In another anti-monopoly lawsuit against Google over internet search, D.C. federal court Judge Mehta stated in August that he was “taken aback by the lengths to which Google goes to avoid creating a paper trail” for regulators and legal foes.
The judge cited chat auto-deletion and noted that Google instructed employees “dealing with a sensitive issue” via email to include a lawyer, mark the message “attorney/client privileged” and “ask the lawyer a question.” Workers “assiduously followed that advice,” and as a result, Google’s legal team initially withheld tens of thousands of purportedly privileged records, which it later handed over to the plaintiffs, Mehta said.
In his August ruling, Mehta stated that his decision not to punish Google “should not be understood as condoning Google’s failure to preserve chat evidence.”
Google, the judge warned, “may not be so lucky in the next one.”
