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Google again accused of willfully destroying evidence in Android antitrust battle

Starting to see a pattern here? Judge seems to think so

Updated Google Chat histories handed over by the web giant in ongoing Android antitrust litigation reveal the biz has been systematically destroying evidence, according to those suing the big G.

"Google employees regularly and intentionally diverted to 'history off' Chats [sic] conversations about Google’s anticompetitive Revenue Share Agreements, Mobile Application Distribution Agreements, Google Play Billing payment policies and pricing, and a variety of other critical issues – specifically to ensure that those Chats would be destroyed," the plaintiffs – a mix of state government, corporate, and individuals – claim in a legal brief [PDF] filed on Monday.

Google's conduct, the plaintiffs argue, has hindered the Android antitrust case and requires a substantial penalty from the San Francisco federal courts.

Related claims surfaced in February, in the US Department of Justice's lawsuit challenging Google's search business.

Google Chat, the mega-biz's messaging app for mobile and desktop devices, has a history feature that can be turned on and off, in accordance with data retention preferences and policies. According to the Department of Justice, Google defaulted most chat sessions to history-off, when it should have kept history-on based due to the requirements of litigation.

Around that time, Judge James Donato, of the northern district of California – who is adjudicating the combined Android antitrust cases brought by the State of Utah and more than 30 other states, commonwealths, and districts; by Epic Games; by Match Group; and by netizens – issued an order directing Google to produce additional chats records. This was to test the proposition that a significant amount of case-relevant Google Chat messages categorized as off-the-record had been systematically deleted.

History is on. I suggest everyone leave the room and create a new one with history off. I am happy to punt everyone out

Google subsequently produced those records, which, the plaintiffs contend, demonstrate a systematic effort to conceal relevant communications. The chat records – 35 exhibits – were entered into the court record along with the plaintiffs' filing.

The published chat transcripts show Googlers urging one another to keep chat history off so that sensitive discussions vanish into the ether. We've chosen not to link directly to the public filings because they contain personal information.

For example in Exhibit 25, a November 19, 2021 group discussion of the market share of Microsoft Edge, Brave, and DuckDuckGo, one Googler asks, "quick aside - do we want history on?" Another replies, "NO," and a third participant says, "History is on. I suggest everyone leave the room and create a new one with history off. I am happy to punt everyone out."

Another conversation involving the head of platforms and ecosystem strategy for Android from March 17, 2022, detailed in Exhibit 4, shows pushback against the company's policy of retaining documents for what's known as a litigation hold:

E: As we are talking about RSA [Revenue Sharing Agreements], I have turned on history as per policy.

M: Hi E…, can you let me know what the policy you're referring to?
I'd prefer to have history off

E: legal/comp can confirm but anything convo regarding RSA i have to have history on

M: I talk about RSA related things all day and I don't have history on for all my chats :)

E: we cannot delete it. I am also on multiple legal hold

M: Ok maybe I take you off this convo :)
As am I…

That last line suggests the chat participant was told to abide by a litigation hold and still prefers to keep conversations from being stored.

The brief cites this exhibit and argues that records relevant to the antitrust case, such as discussions of Revenue Sharing Agreements (RSAs), are not being retained.

"Google’s supplemental production makes clear that Google employees routinely used 'history off' chat to discuss RSA contracts," the brief says. "For example, the Head of Strategy for Android chastised a Senior Strategic Partnerships Development Manager about wanting to chat on-the-record regarding Google’s RSAs. Despite acknowledging the 'multiple legal holds' under which they were operating, she boasted: 'I talk about RSA related things all day and I don’t have history on for all my chats :)."

The brief touches on many more of the conversations captured in the exhibits, and notes that most interactions of this sort leave no record at all because Google has coached employees to "'communicat[e] with care' because Google 'often ha[s] to produce employee communications as evidence.'"

"The outcome of the court-ordered experiment is clear," the brief states. "Google’s production contains a trove of Chats establishing beyond any doubt that the company’s intentional campaign to destroy sensitive communications resulted in the loss of invaluable communications regarding matters at the heart of these cases."

Google did not immediately respond to a request for comment. However, when the Department of Justice made similar claims, a company spokesperson rejected the prosecutors' allegations and insisted that the corporation has been responsive to document production demands.

Wendy Musell, of counsel to employment law firm Levy Vinick Burrell Hyams LLP and a partner of Law Offices of Wendy Musell, expressed in a phone interview with The Register surprise at the allegations in the Android antitrust case.

"If the facts are as they're portrayed in the briefing, it's extremely disconcerting, and I would not want to be Google's counsel today," said Musell. "What the evidence that is set forth in the pleading shows is that there was intentional destruction of evidence and efforts to ensure that evidence won't be created."

I think that's going to be extremely difficult to explain to a judge

Musell said this is a serious issue and courts are empowered to take action to address the situation. "They can sanction attorneys, they can provide jury instructions about the willful destruction of evidence or they can even go as far as to have default judgment against the offending party," she explained.

The most salient issue here, said Musell, is whether Google was under a litigation hold – required to retain evidence – at the time employees were preventing evidence from being stored.

"If they had a legal duty to preserve evidence, and they are intentionally destroying evidence, and also ensuring that evidence is automatically deleted after 24 hours," said Musell, "I think that's going to be extremely difficult to explain to a judge."

Musell said that data retention concerns often surface in employee civil rights cases – eg, discrimination, harassment, and retaliation – where communication between employers and employees occurs in a transient medium, like a chat app, that isn't automatically retained like corporate email.

"If you're deleting all emails within 24 hours on topics that are germane to, let's say, race discrimination, I think any judge would understand that that is a major problem," said Musell. "Whereas when they're simply using a different type of technology, such as Google Chat or Slack, or other text messaging, like Snapchat, for example, where by design, the evidence disappears, I think judges are struggling with that.

"There's no difference under the law, in my opinion, and it should be treated the same way. Destruction of evidence is destruction of evidence."

Stop press

Just as we published this article, the judge in the case sanctioned Google.

In a finding of fact [PDF], Judge Donato concluded Google not only failed to adequately preserve records but also took steps to undermine the litigation.

“Consequently, on the record as a whole, the court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation,” the judge wrote, noting that the record shows the deleted Chat evidence cannot be recovered through additional discovery.

Google did not take reasonable steps to preserve electronically stored information that should have been preserved

“The court 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.’”

The judge deferred a decision about an appropriate remedy for a later time, but declined to rule against Google solely on the basis of its evidence handling.

“The court has already declined to issue terminating sanctions against Google,” the judge wrote. "This antitrust case will not be decided on the basis of lost Chat communications. The determination of an appropriate non-monetary sanction requires further proceedings.”

The judge did however direct Google to pay for the costs incurred by the plaintiffs in challenging Google’s evidence handling. ®

Updated to add

In a statement provided after this story was filed, a Google spokesperson told us:

Our teams have conscientiously worked, for years, to respond to Epic and the state AGs' discovery requests and we have produced over three million documents, including thousands of chats. We'll continue to show the court how choice, security, and openness are built into Android and Google Play.

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