Google has been in the news not just for multiple litigation losses on the merits of antitrust cases, but also for repeated failures to preserve and produce relevant documents. Let me offer five themes from the discovery proceedings.
First, Kent Walker’s 2008 memo warned employees against putting their frank ideas into documents that might be “used against” Google in litigation. In the same memo, Walker also announced a reduction in retention for certain chats, all but instructing employees to move sensitive discussions to off-the-record chats. The United States called the Walker memo “an early hallmark of Google’s intent to deprive litigants of evidence.” Indeed, with Walker counseling employees on what to retain, litigants must wonder whether surviving documents truly reflect genuine business discussions, versus a strategically-incomplete record created in anticipation of litigation. Examining Google’s documents in the search case, Judge Mehta remarked:
[T]he court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants. It is no wonder then that this case has lacked the kind of nakedly anticompetitive communications seen in Microsoft and other Section 2 cases. … Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create ‘bad’ evidence.
Second, Google employees moved communications out of email and into “chat” where, as Walker indicated, Google did not preserve documents by default. In any 1:1 chat, even among employees whose business responsibilities made them subject to document preservation obligations, Google’s internal chat tool defaulted to not saving materials—thereby causing them to be deleted and not provided in litigation. So too for group chats where an employee set history to off. Of course employees knew this and often discussed the need to move to an off-the-record environment exactly to avoid document retention. Employees’ use of these methods wasn’t some rogue tactic, nor any surprise; quite the contrary, Google’s training encouraged exactly this, calling chat “better than email” because it is “not retained by Google as emails are.” Even current Google CEO Sundar Pichai participated in the ruse, remarking “also can we change the setting of this group to history off.” Like others, Pichai knew exactly what he was doing: In a special hearing in the search case as Judge Mehta investigated Google’s discovery violations, Pichai testified that he “was aware” that default chat settings and history-off chats deleted messages after just 24 hours even if a litigation hold required their retention.
Third, Google employees practiced “fake privilege”—adding an attorney to an email thread not genuinely to seek legal advice, but to create a veneer of privilege. For years, Google withheld such emails from its litigation adversaries, and only under pressure from litigants did Google recently begin to reclassify documents. Even when Google ultimately de-privileged some documents, this caused substantial delay to litigation and, as the Department of Justice remarked in the ads case, created “administrative chaos” including Google retroactively “downgrading” the privilege of more than 40,000 documents. Here too, the problem goes all the way up to Google CEO Sundar Pichai, who admitted adding lawyers when he was “seeking confidentiality for the document” and not “really seeking legal advice.”
Fourth, Google’s most senior executives showed a lack of candor in both their memories and their document preservation practices. This problem first arose in Viacom v. Google copyright litigation. For example, Google co-founder Larry Page was strikingly evasive when deposed in that case, stating 132 times “I don’t recall,” including on subjects that were widely discussed internal to Google, at Google’s board, and even in public. Meanwhile, then-CEO Eric Schmidt unapologetically reported that “it was my practice to delete or otherwise cause the e-mails that I read to go away as quickly as possible,” despite participating in discussions on subjects where litigation was foreseeable, actually foreseen, or for that matter underway. Viacom summarized the problem:
This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.
In comparison, Sundar Pichai’s recent approach is, in these respects, an improvement. Yes, Pichai improperly used chat to avoid creating an unfavorable record. And yes, he added lawyers to a thread to try to increase confidentiality (not actually seeking legal advice). But when called to testify under oath, at least Pichai told the truth about what he did and why. At least sometimes. In Epic Games, Plaintiffs presented evidence of Pichai not just asking for history to be turned off, but trying to delete history himself—an action which Pichai said he “d[id]n’t recall.”
Ultimately there’s no escaping the role of senior executives in these discovery violations. Above I remarked on discovery disputes implicating CEO Pichai, co-founder Page, and former CEO Schmidt. Also at issue: Susan Wojcicki, then-CEO of YouTube, who proposed that Robert Kynel (then Chief Business Officer of YouTube) “send via Hangouts” because that is “off the record,” or if not, she “can change to off the record.” And Kent Walker, whose guidance and policy change set this mess in motion, was and remains Google’s General Counsel. I do not even attempt to list the countless senior vice presidents and vice presidents who appear in the discovery violation proceedings. Of Google’s many participating executives, only Walker currently faces even the possibility of a personal sanction—a request from American Economic Liberties Project and others that the California State Bar investigate and penalize according to its rules.
Fifth, Google’s discovery violations have been unfolding in slow-motion for years, with no real penalty to date. Below, I trace Google’s discovery tactics back to Viacom v. Google—where discovery questions were only partially briefed, and never decided, but nonetheless show the beginnings of this problem more than a decade ago. This year, the DOJ’s two antitrust cases against Google revealed many new details about Google’s discovery tactics. Yet Google Play Store Antitrust Litigation in 2022 uncovered the basic problem—Google training employees to use chat rather than email, and not retaining those chats. Two years later, courts are still grappling with the problem and exploring what, if anything, to do about it.
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Many excellent articles summarize courts’ decisions about Google document preservation. But these articles largely focus on what judges wrote, without the color that comes from detailed briefing by plaintiffs, not to mention extended quotes from the underlying documents. In the pages linked below, I organize (what I hope to be) most relevant exhibits, briefing, and decisions in the cases at issue. Realistically, I don’t have it all—but with the deep links I offer (to detailed filings with detailed quotes) and with the free online tools I invoke (where full dockets are organized and, mostly, full-text searchable), diligent readers are positioned to find even more. Send suggestions for addition.
For those who have followed Google spoliation proceedings, the newest three cases are familiar—though I’ve found documents and quotes not elsewhere called out. Meanwhile, the 2010 Viacom v. Google proceedings are also worth a read because, more than a decade earlier, that case raised much the same questions—whether Google honored its discovery obligations, and if not, what to do about it.
United States v. Google (ad tech)
United States v. Google (search)
Epic Games v. Google / In Re Google Play Store Antitrust Litigation