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Google violated order to save evidence, antitrust judge says

Google violated order to save evidence, antitrust judge says
The Google Store Chelsea in New York, US, on 28 May 2021. (Photo: Victor J Blue / Bloomberg)

Alphabet Inc’s Google flouted a court order requiring it to save records of employee chats in antitrust litigation over its Google Play app store policies, a federal judge concluded.

Google gave almost 360 employees “carte blanche” not to preserve chats, which are typically deleted after 24 hours, as potential evidence that may be crucial to the complex cases brought against the company by Epic Games Inc. and a coalition of state attorneys general, US District Judge James Donato in San Francisco said in a ruling on Tuesday. “In effect, Google adopted a ‘don’t ask, don’t tell’ policy for chat preservation, at the expense of its preservation duties,” he said.

Donato said he’d hold further proceedings to figure out an appropriate non-monetary penalty against Google for its conduct. The technology giant must also reimburse plaintiffs for their attorneys’ fees, he said.

“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,” a Google spokesperson said. “We’ll continue to show the court how choice, security, and openness are built into Android and Google Play,” the spokesperson said.

California Attorney General Rob Bonta said the judge’s ruling sends a strong message about not letting “companies hide from accountability when they break the law”. 

“Google has now not only violated the trust of Android phone customers by limiting consumer choice and raking in outrageous commissions, but has also violated the discovery process in this case,” he said in a statement.

The judge’s findings come as the Justice Department has sought sanctions on Google over deleted employee chats in its antitrust suit against the company in federal court in Washington, DC.

Epic and other plaintiffs first pointed out missing chats as they collected evidence in 2021. 

A look at some newly-produced preserved chats showed Google’s “intentional campaign to destroy sensitive communications resulted in the loss of invaluable communications regarding matters at the heart of these cases,” plaintiffs said in a filing on Monday. Alphabet Inc. Chief executive Sundar Pichai and other top executives often moved sensitive conversations from “history-on rooms to history-off chats”, according to the filing.

In an October 2021 chat on “a substantive topic” Pichai interjected: “also can we change the setting of this group to history off,” according to exhibits filed by plaintiffs. Nine seconds later, Pichai attempted to delete that request, the chat shows.

At recent hearings over Google’s conduct, Donato recognized the challenge before plaintiffs in proving the significance of lost chats. Once all evidence is gathered before the trial on 6 November, “plaintiffs will be better positioned to tell the court what might have been lost in the chat communications,” he said in his ruling. BM/DM

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