Google destroyed evidence for antitrust battle, Feds complain

rm -rf'ing staff chat logs can't go unpunished, says Uncle Sam

The US Department of Justice (DoJ) asked the judge hearing its antitrust case against Google to sanction the search advertising giant for destruction of evidence.

The DoJ, along with 11 states, sued Google back in October, 2020, alleging [PDF] at the time that the internet titan has unlawfully monopolized the search market through a series of exclusionary agreements with other companies that have "foreclosed competition for internet search."

The case has since progressed into the discovery phase and now the DoJ contends that Google has ignored its responsibility to preserve evidence relevant to the case.

"Despite Google’s representations that it had implemented a legal hold and suspended auto-deletion of relevant information, Google knowingly destroyed documents relevant to this litigation and has done so for years," the government claims in a memo [PDF] released on Thursday supporting its motion to sanction Google.

Specifically, the government takes issue with Google's decision to allow the automatic deletion of instant messages among employees. The DoJ explains that Google's instant message data retention [PDF] is governed by a "history" button. Chats with the history button active get kept from 30 days to 18 months, while chats with an inactive history button are kept only for 24 hours before being deleted. And toggling the history button on in the middle of a chat session doesn't alter the retention time of previous messages.

"Google defaulted most chat sessions to 'history-off,' requiring each individual custodian to take affirmative steps to preserve each relevant chat," the DoJ memo says. "While Google could have set the default 'history on' for all employees subject to a legal hold, Google did not do so."

And apparently Google has failed to take steps to preserve employee chat messages for any recent litigation. The government memo points to a similar evidentiary hearing [PDF] held in a competition lawsuit involving Epic Games and other plaintiffs (In re: Google Play Store Antitrust Litigation) in which Google acknowledged that "it has not preserved all chats for employees under a litigation hold in any case over the past five years."

The DoJ argues that Google's destruction of chat messages remains ongoing and that the corporation, under the law, cannot shift the burden of data retention to employees. The government has also stated in a separate filing [PDF] that "Google has instructed employees to avoid discussing sensitive issues, such as issues related to competition, over email."

Therefore, the Feds say, it's likely that discussions of the very conduct being challenged in court took place not in email messages or memos but in off-the-record chats that Google did not preserve.

The government's motion [PDF] asks Judge Amit Mehta to: hold that Google violated evidence preservation rules; order a hearing to assess appropriate penalties; and to order Google to provide details about its practice of allowing employees to send chat messages with the history feature turned off.

Google, predictably, has been pushing back [PDF] against government document production demands during the litigation and the biz disagrees with the DoJ's latest motion.

"We strongly refute the DOJ's claims," a Google spokesperson said in a statement, using "refute" to mean "deny" rather than "disprove." "Our teams have conscientiously worked for years to respond to inquiries and litigation. In fact, we have produced over four million documents in this case alone, and millions more to regulators around the world." ®