This post is part of Revisiting Litigation Alleging Google Discovery Violations.
The State of Texas, et. al., v. Google – docket. 4:20-cv-00957-SDJ (E.D. Tex.)
Filed December 16, 2020. First filing as to discovery violations: April 26, 2024.
Case disposition: Google Motion for Summary Judgment pending.
Plaintiff States’ Motion to Compel Written Discovery Regarding Destruction of Google Chats (July 3, 2024). Alleges “rampant destruction of relevant communications was no accident; it was Google’s policy and design.” Seeks discovery to reveal the extent of Google’s destruction of relevant chats.
Plaintiff States’ Motion for Spoliation Sanctions (January 6, 2025).
As to intent: “Google instructed its employees to use “history off” chats for work-related communications because they would not be preserved for future litigation.” Notes that in the 2008 Walker Memo, Google both remarked on “significant legal and regulatory matters” and announced that it would set Chat history to “off the record” — indicating that the former motivated the latter, which the motion claims is improper. Remarks on Google training to employees: “Google taught employees that sending an ‘off the record’ Chat is ‘[b]etter than sending [an] email’ because ‘off the record’ Chats ‘are not retained by Google as emails are.’”
As to Google’s approach to preservation: Google put “the onus … on each individual employee under a litigation hold to determine in real time whether a particular part of a particular Chat might be relevant to any actual or reasonably anticipated litigation,” and says Google failed to provide suitable guidance to those employees. Google did not instruct employees to turn history on for discussions related to a litigation hold until October 2021. Google did not audit whether employees complied with litigation holds.
As to untimeliness of Google’s preservation: Notes that Google claimed privilege over documents relating to ad tech as early as 2006, and specifically anticipated litigation in this area by 2013. Notes Texas’s first Civil Investigative Demand to Google in September 2019. Yet 61 of 202 custodians in this case were not placed on a litigation hold until 2022, more than 3 years after that CID was issued and more than 2 years after Google told plaintiffs that it had implemented appropriate litigation holds. (Table of delays in hold dates.)
As to specific individuals who failed to preserve: Reports that Google CEO Sundar Pichai never switched on Chat history, not a single time, to preserve even a single communication. Reports that Google failed to preserve 96% of Pichai’s chats from a two-month period for which partial data is available.
As to the volume of Chat messages at issue: Claims the relevant Google employee-custodians sent and received about 20,000 Chat messages per employee per year, totaling between 2.8 and 4 million Chat messages per year across all employees at issue in this litigation.
As to remedy: Asks the Court to “(1) instruct the jury that (i) Google had an obligation to preserve Chats, (ii) Google intentionally deleted millions of Chats, and (iii) the jury must presume the deleted Chats contained information unfavorable to Google, (2) find that Chats likely would have provided further evidence against Google’s motions for summary judgment; (3) award Plaintiffs’ fees and costs associated with this motion.”
42 attachments to the motion including: