This post is part of Revisiting Litigation Alleging Google Discovery Violations.
Epic Games, Inc. v. Google LLC / In Re Google Play Store Antitrust Litigation – docket. 3:20-cv-05671-JD (N.D. Cal.). /and/ In Re Google Play Store ANtitrust Litigation – docket. 3:21-md-02981-JD.
Filed August 13, 2020. First proceedings as to discovery violations: October 13, 2022.
Case allegation: Google acquired a monopoly in Android in-app payments, and Google unlawfully maintains a monopoly in Android mobile app distribution and payments. Complaint.
Case disposition: Jury ruled in Epic’s favor. Remedy on appeal to Ninth Circuit.
Plaintiffs’ Motion for Sanctions.
On the scope of deleted documents: “Google has destroyed—irretrievably—an unknown but undoubtedly significant number of communications by its employees about relevant business conversations, including on topics at the core of this litigation. Google permanently deletes Google Chats1 every 24 hours—and did so even after this litigation commenced, after Plaintiffs repeatedly inquired about why those chats were missing from Google’s productions, and after Plaintiffs submitted a proffer on this exact issue at the Court’s direction.”
On autodeletion: “Disabling an autodeletion function is universally understood to be one of the most basic and simple functions a party must do to preserve [Electronically Stored Information]” (quoting and citing DR Distribs). “It is difficult to imagine a litigant better situated to prevent automatic deletion on its own platforms than Google. When Google, whose stated mission is to ‘organize the world’s information and make it accessible,’ irretrievably destroys information despite multiple warnings, its conduct is intentional.”
Google’s Opposition to Motion for Sanctions. “Google took reasonable steps to preserve relevant ESI. … Rule 37(e) ‘does not call for perfection’.” “Plaintiffs do not show they suffered any prejudice. … Plaintiffs fail to explain why any unique evidence regarding their claims would be found in chats rather than in the massive corpus of contracts, emails, presentations, strategy documents, and transactional data produced by Google.”
Partial transcript of January 12, 2023 hearing including hearing exhibits. Additional transcript section.
Judge Donato on Google’s failing to preserve chats: “I think there’s little doubt on the evidence that we’ve heard so far that Chat, Google’s Chat function could, in fact, have contained evidence relevant … to this case. … Google did not systematically preserve those chats but, instead, left the preservation of chats to the discretion of each individual who received a hold notice. … Google never monitored the chats to see if relevant evidence was possibly being lost. … I’m concerned about all this for a variety of reasons [including] at our very first case management conference in October of 2020, Docket Number 45, Google represented to me that it had taken all appropriate steps to preserve all evidence relevant to the issues reasonably evident in this action. I’m finding that representation to the Court to be hard to square with what appears to have been failure to preserve the chats. … [I]f Google didn’t intend to preserve the chats, they should have told me about that in October of 2020.”
On remedy: “I’m not going to let Google get away with this is. There is going to be a substantial trial-related penalty”
Plaintiffs’ Reply ISO Motion for Sanctions.
On deletions generally: “Google’s argument that its efforts were reasonable is irreconcilable with the systematic and avoidable destruction of relevant Chats as well as its continued failure to explain why it did not suspend automatic deletion, including after being expressly put on notice.”
On prejudice: “Google’s contention that Plaintiffs have not suffered prejudice is refuted by evidence showing that Chats are just as substantive as (and often more candid than) email.”
On intent: “Google’s argument that it lacked the requisite intent ignores the facts that Google still, to this day, continues the wholesale destruction of Chats, that Google withheld information about the company’s destruction of Chats for months, and that Google’s custodians intentionally divert sensitive conversations to Chat to avoid discovery.” “Google employees intentionally divert sensitive conversations to ‘history off’ Chats, and chide others for honesty in ‘history on’ Chats.” “If Google truly believed that the wholesale destruction of all communications on one of the two communications platforms its employees routinely use was reasonable, it could have raised this position with Plaintiffs. It did not.” “Google’s conduct has the purpose of providing its employees a place to communicate free from discovery in litigation.”
Partial transcript of January 31, 2023 hearing. Judge Donato: “It’s plain as day to any objectively reasonable lawyer, any objectively reasonable lawyer, that Chat is going to contain possibly relevant evidence.”
Plaintiffs’ Supplemental Brief on Google’s Chat Production. “Google employees, including those in leadership roles, routinely opted to move from history-on rooms to history-off Chats to hold sensitive conversations, even though they knew they were subject to legal holds … even when discussing topics they knew were covered by the litigation holds in order to avoid leaving a record that could be produced in litigation..” Provides specific examples of substantive discussions in chat.
As to the reason why Google employees use chat, quoting from a preserved message: “Historically (ha) [Google employees] have history off so that [they] can speak (more) freely.” “[H]istory is a liability.” “Dont editorialize/comment in this group chat because it is long-lived.”
When employees realized history was on, they joked about turning it off: “heeeey . . . also just realized our history is [on] . . . can we turn it off? haha.”
As to discovery violations by Google CEO Sundar Pichai: “In one Chat, Mr. Pichai began discussing a substantive topic, and then immediately wrote: “also can we change the setting of this group to history off. Then, nine seconds later, Mr. Pichai apparently attempted (unsuccessfully) to delete this incriminating message. When asked under oath about the attempted deletion of the message, Mr. Pichai had no explanation, testifying ‘I definitely don’t know’ and ‘I don’t recall.'” (citing Pichai deposition transcript)
Quotes from specific employees evading document retention obligations:
Bill Richardson: “Historically (ha) we have history off so that we can speak (more) freely.”
Margaret Lam and Ethan Young: “I talk about RSA related things all day and I don’t have history on for all my chats :)” “we cannot delete it. I am also on multiple legal hold” “Ok maybe I take you off this convo”
Margaret Lam and Tim McDowell: “can I ask you to turn off history :)” “sure, I understand just feeling forgetful”
Margaret Lam: “do you mind turning history off”
Margaret Lam: “would it be too much to ask you to turn history off?” “lots of sensitivity with legal these days :)”
Margaret Lam and Shadia Walsh: “also just realized our history is [on]. can we turn it off? haha” “yes let’s turn it off”
Ambarish Kenghe: “Folks, *Please do consider if we nee to start a HISTORY OFF chat for this?* Threaded chats you can’t turn off history”
Talia Fernandes and Romin Malkan: “Since this is a sensitive discussion, I’m going to move it to a smaller room” “Group chat.. with the history off ;)”
Lyra Schramm: “should we have history off for this?”
Meg Campbell: “It needs to be history off”
Santiago Scully: “if super sensitive you need to use a GVC because they could look at your recent ping history and that could go into court”
Divya Chandra to Otto Jan: “I am on legal hold.” “Prefer to keep chat history off.” “i’ll turn off” [chat ends]
Edvill@, Sherle@, and Tris Warkentin: “quick aside – do we want history on?” “NO” “History is on. I suggest everyone leave the room and create a new one with history off. I am happy to punt everyone out”
Cdimon@: “please do not share sensitive information here where possible. Rather, you can flag documents, email threads, etc. for
attention. Until we fix the room architecture, content here is searchable/discoverable within the corp.”Marcel Folaron: “We can’t turn history on due to potential sensitive information being shared”
Nentl@ and Thao Nguyen: “I’d imagine history is intentionally off” “Yes, history is intentionally turned off for all our war rooms.”
Brandon Barbello and Arpit Midha: “history is a liability” “the more we chat the more threads we need and the more history on gets dangerous”
Stephan Somogyi: ” if we create a new room from scratch we can disable history. We should find a way to do that rather than continuing in perma-history mode”
Tian Lim: “not sure why history is on for our chat, but can you turn it off”
Tian Lim: “hey history is on in this chat, needs to be off”
Court’s Findings of Fact and Conclusions of Law re Chat Preservation.
“Google trains employees to ‘communicate with care’.” (Training materials.) “[I]nternal communications actively expressed concerns about the possibility of disclosure in litigation and the risks of preserving Chats” (quoting seven specific employee discussions on this subject, e.g. “should we have history off for this?”). Employees specifically sought to evade retention obligations: “please do not share sensitive information here where possible . . . Until we fix the room architecture, content here is searchable/discoverable.”
On efficacy of Google’s approach to production and alternatives: “Google has the technical ability to set Chat history to ‘on’ as the default for all employees who are subject to a legal hold, but it chooses not to.” “Google did not check to see if custodians were actually preserving relevant Chats as directed by the hold notice, and did nothing in the way of auditing or monitoring Chat preservation.” “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.” Quotes a two-page chat between Google employees, which one recognizes as requiring preservation, to which the other says he will “take you off” the discussion rather than proceed with preservation. In another quoted chat, one employee said he was “on legal hold” but nonetheless “prefer[red] to keep chat history off”.
On scope and intent: Says Google “fell strikingly short” as to preservation, calls Google’s tactic “troubling” and a “worrisome” “substantial problem”, and says Google “did not reveal [its practices] with candor or directness to the Court or … plaintiffs.” Criticizes Google’s efforts to “downplay the problem” including its “dismissive attitude ill tuned to the gravity of its conduct.” Criticizes Google’s false claim that it was unable to change default chat history settings for individual employees, which the court says was “not truthful”. Concludes that “Google did not take reasonable steps to preserve electronically stored information that should have been preserved.” As to “intentionality,” 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.” Rejects Google’s arguments about impact of the failure to preserve.
On remedy: “The determination of an appropriate non-monetary sanction requires further proceedings. The Court fully appreciates plaintiffs’ dilemma of trying to prove the contents of what Google has deleted. Even so, the principle of proportionality demands that the remedy fit the wrong, and the Court would like to see the state of play of the evidence at the end of fact discovery. At that time, plaintiffs will be better positioned to tell the Court what might have been lost in the Chat communications.”
On monetary sanctions: “[I]t is entirely appropriate for Google to cover plaintiffs’ reasonable attorneys’ fees and costs in bringing the Rule 37 motion, including the joint statement that preceded the motion and the evidentiary hearing and related events.”
Plaintiffs’ Proposed Remedy for Destruction of Evidence.
On retention: “The record contains example after example of Google employees beginning to discuss topics highly relevant to this litigation and then quickly agreeing to turn history off to trigger automatic deletion and shield further discussion from discovery. … These interrupted Chats are the tip of the iceberg and are powerful evidence of key information—which by any reasonable inference is information that Google thought would be harmful to its legal position if disclosed—being deliberately and permanently destroyed, and thus hidden from Plaintiffs and the Court.” Says the destroyed information was “the most candid and unsanitized discussions regarding Google’s anticompetitive conduct.” Quotes additional specific examples of employees turning off chat to avoid document preservation, including Google CEO Sundar Pichai.
On privilege Calls out “fake privilege” in which Google “encouraged” employees “to copy… counsel to apply attorney-client privilege” although not genuinely seeking legal advice.
On remedy: Seeks a permissive adverse inference, directing the jury that it “may” infer that Google destroyed evidence which would have been harmful to Google and helpful to Plaintiffs.
Google’s Opposition to Plaintiffs’ Proposed Remedy. Criticizes Plaintiffs’ proposal as “severe.” “Plaintiffs’ submission does not show that Google’s post-August 13, 2020 chat preservation practices deprived them of evidence that would have strengthened their case.” “Plaintiffs offer nothing more than rank speculation that any missing chats would have been relevant—let alone helpful—to their case.” “The vast majority of the conduct discussed in Plaintiffs’ motion took place before this lawsuit was filed—in many cases years before this lawsuit was filed—and therefore any chats on these topics would have been permissibly deleted pursuant to Google’s document retention policy long before Google’s preservation obligations arose.” “Plaintiffs say that [certain] chats would have revealed Google’s subjective motivation for the challenged conduct, but the inquiry in this antitrust case focuses on effect, not intent.”
Plaintiffs’ Reply ISO Proposed Remedy. “The time has come for Google to bear the consequences of its longstanding, deliberate policy of instructing its employees to conduct their most sensitive business communications in ‘history off’ Chats and then destroying those Chats despite pending litigation to which they were relevant, including this case and related investigations and regulatory actions.” “Plaintiffs’ requested remedy is appropriately tailored to attempt to ameliorate the prejudice and harm resulting from Google’s calculated choice to evade discovery obligations and destroy evidence.” “Plaintiffs have shown—as far as is possible without the benefit of the documents Google destroyed—that the thousands upon thousands of deleted Chats contained probative evidence that would have supported Plaintiffs’ case.” “Google’s plea for ‘lesser measures’ fails because Google has not identified any ‘lesser measures’ that would be sufficient to redress Plaintiffs’ loss.”
Remedy in pretrial order. Orders a permissive adverse inference jury instruction, consistent with Plaintiffs’ proposal.
Evidentiary hearing as to discovery violations summarized in Epic’s Opposition to Google’s Renewed Motion for Judgment as a Matter of Law under Rule 50(B) or for a New Trial under Rule 59. “Trial testimony from Google witnesses … confirmed the destruction of hundreds of thousands of Chats.” Judge called Kent Walker’s testimony “evasive” and “materially inconsistent with testimony given by Google’s witnesses”, saying his testimony “did not do anything to assuage [the Court’s concerns.” Judge remarked that “a mandatory adverse inference instruction would be amply warranted.” Judge continued: “this presents the most serious and disturbing evidence I have ever seen in my decade on the bench with respect to a party intentionally suppressing potentially relevant evidence in litigation” and remarked on “rampant and systemic culture of evidence suppression at Google.” Judge said he intended to conduct his own independent investigation into “who is responsible within Google for tolerating this culture of suppression.”
Order re Google’s Renewed Motion for Judgment as Matter of Law or for New Trial in EPIC Case.
As to abuse of privilege designations: “[M]ore evidence emerged at trial of a frankly astonishing abuse of the attorney-client privilege designation to suppress discovery. CEO Pichai testified that there were occasions when he ‘marked e-mails privileged, not because [he was] seeking legal advice but just to indicate that they were confidential,’ as he put it. He knew this was a misuse of the privilege. Emily Garber, a Google in-house attorney, testified that there was a practice at Google of ‘loop[ing] in’ a lawyer based on a ‘misapprehension about the rules of privilege,’ and that Google employees ‘believed that including [an in-house lawyer] would make it more likely that the email would be considered privileged.’ Garber called this ‘fake privilege,’ a practice that she appears to have found amusing rather than something a lawyer should have put an immediate and full stop to. On this record, there was no error in the Court’s evidentiary ruling that Epic could ‘present fake privilege’ and make arguments to the jury about it.”
As to adverse inference: “The Court determined after an evidentiary hearing held before trial that Google had willfully failed to preserve relevant Google Chat communications, and allowed employees at all levels to hide material evidence. The evidence presented at trial added more fuel to this fire. As discussed, Google in-house attorney Garber testified about the company practice of asserting a fake privilege to shield documents and communications from discovery. Other witnesses also amplified the seriousness and pervasiveness of Google’s preservation abuse. For example, Google employee Margaret Lam, who worked on RSA issues, said in a Chat message that she didn’t have a specific document because ‘competition legal might not want us to have a doc like that at all :).’ She was a party to other Chats where, in a discussion about MADA, she asked to turn history off because of ‘legal sensitivity’; she requested to turn history off in a different conversation about RSAs, so there would be no ‘trail of us talking about waivers, etc.’” “Overall, there was an abundance of pretrial and trial evidence demonstrating ‘an ingrained systemic culture of suppression of relevant evidence within Google.’”
As to the Court’s evidentiary hearing to evaluate a mandatory adverse inference about Google’s suppression of evidence: “The results of this hearing were disappointing. Google’s chief legal officer, Kent Walker, was the main witness. Despite the seriousness of these issues, and the likelihood that they could affect other litigation matters where Google is a party, Walker showed little awareness of the problems and had not investigated them in any way. Much of his testimony was in direct opposition to the facts established at the prior Google Chat hearing. Overall, Walker did nothing to assuage the Court’s concerns.” “Even so, the Court took the conservative approach of permitting the jury to make an adverse inference rather than requiring it to.” “Google’s complaints about the inference instruction are wholly misdirected. It has not provided anything close to a good reason to conclude otherwise.”