Google ‘not truthful,’ tried to ‘subvert’ court process by deleting evidence in monopoly case, judge rules

March 29, 2023 – A federal court judge has lambasted Google for deceptive tactics in a high-stakes court case, with California Attorney General Rob Bonta also attacking the technology behemoth for “egregious behavior.”

The judge’s excoriation came in a multi-lawsuit legal action involving dozens of states, including California, accusing the Mountain View-based digital advertising giant of monopolizing the distribution of apps that use Google’s Android operating system.

Judge James Donato found Google broke federal court rules, and potentially weakened the antitrust case against the company, by auto-deleting internal employee messages the firm was obligated to hand over to the states and other plaintiffs as evidence.

“Google has tried to downplay the problem and displayed a dismissive attitude ill tuned to the gravity of its conduct,” Donato wrote in his decision Tuesday in U.S. District Court in San Francisco.

The plaintiffs, in a court filing Monday, had claimed Google engaged in “a company-wide culture of concealment coming from the very top, including CEO Sundar Pichai.”

Bonta responded Tuesday to Donato’s findings, saying in a statement, “This egregious behavior demonstrates the lengths that Google will go to maintain its anticompetitive stronghold on the marketplace.”

Google did not respond to a request for comment on Donato’s decision and the plaintiffs’ allegations. The company is accused in the four related lawsuits of putting up contractual and technological barriers to block Android users from using other app-distribution platforms than the Google Play store.

The communications at issue in Donato’s ruling took place in Google’s internal instant-messaging system known as “Chat.” Donato found that Google in the litigation had cast Chat as “primarily a social outlet akin to an electronic break room,” but in fact, company employees routinely used it to “discuss substantive business topics, including matters relevant to this antitrust litigation.”

Chats involving hundreds of specific Google employees were supposed to be preserved for the court case via a “history on” setting in the messaging platform, the judge wrote in his decision. Those communications would then be given to the plaintiffs to use as potential evidence, in a process called “discovery.” Instead, Google “intended to subvert the discovery process” and the Chat evidence “was lost .. with the intent to deprive (the plaintiffs) of the information’s use in the litigation,” Donato found.

Google initially claimed it had no ability to change default settings for individual employees’ Chat history, but evidence in a court hearing “plainly established that this representation was not truthful,” Donato wrote. He added that Google had the ability to set the Chat history function to “on” for all the employees whose communications were relevant to the case, but chose not to.

Shortly after the case was filed in October 2020 and before the issue with the Chat function arose, the company “falsely assured the Court” that it had taken appropriate steps to preserve all relevant evidence “without saying a word about Chats,” Donato wrote. “The Court has repeatedly asked Google why it never mentioned Chat until the issue became a substantial problem. It has not provided an explanation, which is worrisome, especially in light of its unlimited access to accomplished legal counsel, and its long experience with the duty of evidence preservation.”

The plaintiffs claimed in their filing Monday that Google CEO Pichai in one Chat started to discuss a matter relevant to the antitrust case, then immediately asked if the Chat setting could be set to “history off” so the message would auto-delete, before unsuccessfully trying to delete the “incriminating” message himself.

“Like Mr. Pichai, other key Google employees, including those in leadership roles, routinely opted to move … to history-off Chats to hold sensitive conversations … in order to avoid leaving a record that could be produced in litigation,” the filing alleged.

Donato ordered that Google pay the plaintiffs’ attorney fees and other costs related to litigation over destruction of the messages, and said “determination of an appropriate non-monetary sanction requires further proceedings.” The additional proceedings will shed light on how consequential Google’s failure to preserve the communications evidence is for the plaintiffs’ case, Donato indicated.

Vaughn Walker, former Chief Judge of the Northern California U.S. District Court, said judges, when deciding on sanctions in such cases, give heavy weight to the importance of lost evidence. In the most serious cases, a judge may tell a jury “that the party destroyed evidence or allowed it to be destroyed and the jury should infer that the evidence was incriminating,” Walker said.

The group of lawsuits also includes as plaintiffs millions of consumers and several companies.

By Ethan Baron, Bay Area News Group
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