This post is part of Revisiting Litigation Alleging Google Discovery Violations.
United States of America v. Google LLC – docket. 1:20-cv-03010-APM. (D.D.C.)
Filed October 20, 2020. First filing as to discovery violations: February 23, 2023.
Case allegation: Google unlawfully maintained monopolies in the markets for general search services, search advertising, and general search text advertising through anticompetitive and exclusionary practices. Complaint.
Case disposition: Opinion of August 5, 2024 finds Google has monopoly power in the general search text ads market, Google’s exclusive agreements foreclose a substantial share of the text ads market and allow Google to charge supra-competitive prices and degrade quality.
“By intentionally destroying employee chats and making repeated misleading disclosures to the United States, Google violated Rule 37(e) and is subject to sanctions for spoliation.”
“For years, Google empowered, and even encouraged, its employees to engage in ‘history off’ written communications—known by Google employees as ‘off the record’ chats—which were then automatically destroyed after 24 hours. Google even trained employees that ‘off the record’ chats, also known as Google Hangouts or instant messages, are ‘[b]etter than sending [an] email’ and ‘not retained by Google as emails are.’” “Google routinely destroyed these written communications. In fact, Google continued automatically deleting these ‘off the record’ chats after it reasonably anticipated litigation, throughout the United States’ investigation, and even when the company became a defendant in this litigation—every 24 hours up until February 8, 2023.” “Google repeatedly misrepresented its document preservation policies, which conveyed the false impression that the company was preserving all custodial chats.”
“Google’s refusal to suspend its auto-deletion policy earlier is especially notable in light of the sanctions motion filed in the Epic proceedings. Even after the plaintiffs in that case confronted Google with spoliation concerns, Google still withheld its 24-hour auto-deletion policy from the United States and continued to destroy written communications in this case.”
“Google knows that its employees use the ‘off-the-record’ functionality to avoid discovery.” Quoting an internal Google analysis: “when… History is Off, … there’s a higher likelihood that sensitive information is being discussed” and “[p]eople don’t want chat to be discoverable.”
Quotes Google policies and remarks purporting to preserve and produce all relevant documents. Quotes a Google Records Retention Policy which Google provided as part of an ESI Questionnaire from the Department of Justice: “With respect to legal holds, the policy states that “[a] legal hold suspends all deletion procedures in order to preserve appropriate records under special circumstances, such as litigation or governmental investigations.” (emphasis added by Plaintiffs in the filing) “Neither [that] policy, nor Google’s ESI Questionnaire responses, (1) discusses the existence of ‘off the record’ written communications; (2) explains how ‘off the record’ or history-off chats are treated; or (3) refers to a default, 24-hour deletion of any ESI.” Quotes Google’s claim that it was preserving all documents: “Google has put a legal hold in place. The legal hold suspends auto-deletion.” Explains that Google only admitted “off the record” chat deletion after the United States requested further materials incidental to the Epic sanctions motion.
On the importance of the deleted documents: “These deleted chats may have contained especially probative information and revealed candid discussions between key Google executives on relevant topics. As a result, the prejudice to the United States is substantial.” “[C]hats are often a rich source of evidence: employees tend to be more candid in informal modes of communication than they are over email or in presentations and memos.” “Chats are an even more significant source of evidence under the circumstances here, because Google has instructed employees to avoid discussing sensitive issues over email, including issues related to competition.”
On intentionality: “Google and its employees intentionally exploited its ‘off the record’ chat policy.” “[T]he company’s employees knew that history-off chats were not being preserved and exploited that fact to shield sensitive information from discovery.” “When Google warned employees against discussing sensitive matters over email, the company encouraged them to do so instead through off-the-record chats.” “Google’s exploitation of off-the-record chats belies any notion that this destruction was an honest mistake or an oversight.”
Calls out specific employees who used “history off” chat and employee discussions evading document retention obligations:
CEO Sundar Pichai: “can we change the setting of this group to history off”
Meg Campbell: “It needs to be history off.”
Anna Kartasheva and Jim Kolotouros: “[W]e should chat live so you can get the history; best to not put in email.”
Purnima Kochikar: “the conversations in Rooms on Meet remain in perpetuity so please don’t discuss either topics in Rooms.”
Margaret Lam: “I’d prefer to have history off. … I talk about RSA related things all day and I don’t have history on for all my chats 🙂 … Ok maybe I take you off this convo”
Margaret Lam: “can I ask you to turn off history :)”
Christopher Li: “Is there no way to turn history off for these spaces?” “I don’t even see the option as an administrator.” “I’ll deprecate this group so we can use the other.”
Prabhakar Raghavan: “used “a ‘history off’ chat” in discussions about ‘how Chrome has affected our query volume.””
Sameer Samat: “pls keep in mind this chat history is not off”
David Sun: “If anyone wants to hear horror stories of chat histories being used in depositions at Google … just ask me and I can speak generally. … It’s bad news.”
Larry Yang: “Reminder: do not speculate on legal matters over email or (saved) chat”
“Since it’s a sensitive topic, I prefer to discuss offline or over hangout.”
“Let’s not talk about markets and market share via email.”
“When you want to talk about stuff that has legal ramifications, such as privacy, the way to discuss it is in person, and not in email / writing of any form (unless you consult with the lawyer cats/pm first :)”
“We should chat live so you can get the history; best to not put in email.”
“maybe we should discuss this ‘off the record’, I think [there’s] a lot to unpack here.”
Schramm: “Should we have history off for this?” “I think our chats about google products are more likely to come up in court”
Cdimon: “Since history is turned on, be mindful of putting anything discoverable here.”
Bill Richardson: “We have history off so that we can speak (more) freely.”
William Furr: “It’s easy to get carried away in chat and communicate with less care than you might with email.”
(Citations provided where findable. Many cited documents are under seal, so available only to the extent quoted in the memorandum.)
“Google did not disclose its chat destruction policy until January 2023.” “Google’s chat destruction policy was not reasonable.” “Deleting its preservation obligations to employees was unreasonable.” “Auto-deletion was unreasonable.” “It was inherently unreasonable for Google to default most chats to ‘history off’ and then automatically delete those chats for custodians under a litigation hold. That is especially true because Google recognized its employees’ use of ‘history off’ chats ‘to discuss sensitive topics’ and avoid discovery.“ “The United States was presumptively prejudiced because Google acted with an intent to deprive.” “[E]mployees discussed sensitive topics via chat because they knew other communication methods were subject to production. “
Quotes additional employees about hiding conversations from legal scrutiny: “I prefer not to be deposed for the contents of kappa chat… It needs to be history off”, “should we have history off for this?”, “Since history is turned on, be mindful of putting anything discoverable here…”
Google’s Memorandum in Opposition to Plaintiffs’ Motions for Sanctions. “Plaintiffs’ unreasonable delay in raising any objections bars their motions.” “Google took reasonable steps to preserve relevant documents.” “Plaintiffs were not prejudiced.” “Google did not act with an ‘intent to deprive.’” “No additional discovery is required or appropriate.”
United States’ Reply in Support of Its Motion for Sanctions Against Google. “Motion for sanctions is timely.” “Google did not disclose its chat destruction policy until January 2023.” “Google’s instruction to its employees to turn ‘history on’ is not reasonable” because “delegating its preservation obligations to employees was unreasonable” and “auto-deletion was unreasonable.” “The United States was prejudiced.”
Order on Plaintiffs’ Motion for Sanctions.
“On the present record, the court cannot make a finding that Google acted ‘with the intent to deprive’ Plaintiffs of the ‘use’ of certain chats ‘in the litigation.’ Nor can it determine whether Google ‘failed to take reasonable steps to preserve’ such information.”
Ordered Google to produce for in camera review all litigation hold and reminder memoranda. Ordered Google to produce declarations from 20 custodians to be selected by the United States as to their practices in preserving chats, and what communications they held with chat history turned off.
Plaintiff’s Proposed Conclusions of Law at heading “Google’s Systematic Destruction Of Unfavorable Evidence Warrants Sanctions Under Rule 37(e).” “A party fails to take reasonable steps to preserve ESI when it (1) adopts a document destruction system that erases chats from production in litigations and investigations and then (2) continues to automatically delete the electronic communications of employees involved with the subject matter of a lawsuit and gives its employees ‘carte blanche to make his or her own call about what might be relevant in [a] complex antitrust case and whether a Chat communication should be preserved.’” (citing Google Play Store Antitrust Litigation)
Plaintiff’s Proposed Findings of Fact at heading “Google Adopted Policies For Destroying Or Hiding Documents To Avoid Producing Them To Regulators And Litigants.”
As to preservation: “Google employees interchangeably refer to ‘history off’ chats as ‘off the record’ chats. Google permanently deletes all ‘off the record’ communications after 24 hours if both users in a one-on-one chat have their retention history set to ‘off,’ or if history is set to ‘off’ in a group chat.” “In September 2008, Google changed the default retention setting for many chats to ‘history off’.” Google’s Kent Walker said this would “help avoid inadvertent retention of instant messages.” “Google employees at all levels of responsibility—from the CEO to vice presidents to product managers—use ‘off the record’ chats for business purposes.” Lists specific purposes for which SVP Prabhakar Raghavan, SVP Jonathan Rosenberg, and VP Kolotouros used “history off” chats. “Google employees intentionally took chats to ‘history off’ to avoid preserving them.”
As to defaults: “Google has the technical capability to override default retention rules and set legal holds for all employees’ chats.” “Seven days [after] the United States informed Google that it intended to move for spoliation sanctions … Google changed its chat default settings and began to default chats to ‘history on’ for individuals on legal hold.”
As to improper claims of privilege: “Google trains its employees to shield emails and other documents from review and production in investigations and litigation.” “Google has long trained its employees to include attorneys on ‘any written communication regarding RevShare and MADA.’” “Google employees follow their training and include attorneys on ‘any written communication regarding revshare and MADA,’ even when not requesting legal advice.” “Google’s attempts to shield discovery include the company’s CEO. Mr. Pichai testified that he sometimes copied Chief Legal Officer Kent Walker on emails and asked for legal advice when he was not ‘really seeking legal advice, but … seeking confidentiality for the document’” and quoting his remarks: “There have been occasions where I’ve just marked [emails] privileged to indicate it’s confidential.” “After multiple rounds of re-review of ‘silent attorney’ emails, Google abandoned privilege on 12% (26 of 210 documents) of the random sample the Court requested for review in chambers, when it was clear it would be held accountable.”
As to employee use of terminology: “Google has cautioned its employees since at least 2003 to be careful about what they put in writing because it might be discoverable, and employees heed that caution.” (Referring to Antitrust Basics for Search Team.)
August 5, 2024 opinion discusses the allegations of Google discovery violations:
As to “Google’s long-time practice (since 2008) of deleting chat messages among Google employees after 24 hours”: “This failure to retain chats continued even after Google received the document hold notice at the start of the investigative phase of this case.”
As to Google’s “flagrant misuse of the attorney-client privilege”: Google “trained its employees to add its in-house lawyers on ‘any written communication regarding Rev Share [RSA] and MADA’” which, the Court says, led Google to initially withhold tens of thousands of records on the grounds of privilege, only to later deem them not privileged.
Says the Court need not make a finding of intent in Google’s failure to preserve these documents or its incorrectly marking them as privileged, because intent is not an element of the underlying antitrust claims. “Still, the 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.” After quoting other companies’ improper statements indicating antitrust violations, the Court continues: “Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create ‘bad’ evidence.”
As to remedy: “On the request for sanctions, the court declines to impose them. Not because Google’s failure to preserve chat messages might not warrant them. But because the sanctions Plaintiffs request do not move the needle on the court’s assessment of Google’s liability.” “The court’s decision not to sanction Google should not be understood as condoning Google’s failure to preserve chat evidence. Any company that puts the onus on its employees to identify and preserve relevant evidence does so at its own peril. Google avoided sanctions in this case. It may not be so lucky in the next one.”