A few months ago, Google came away unscathed from a discovery dispute with the United States Department of Justice and 36 U.S. states: Judge Amit Mehta of the United States District Court for the District of Columbia denied a motion to impose sanctions on Google over its "Communicate With Care" policy. Basically, Google told employees to keep lawyers in the loop on communications that might be relevant to a future antitrust case in order to be able to claim attorney-client privilege. What happened then was that hundreds of such emails were reviewed again, and that process may have strengthened the position of the governmental plaintiffs, but Google didn't get penalized.
Still, Google's antitrust woes are as substantive as they are manifold. See my previous post: European Commission authoring Statement of Objections (antitrust charges) against Google's ad business while DOJ is rumored to be preparing its second antitrust lawsuit and Google announces summary judgment against the pending one.
And now there's another major discovery dispute. Shortly before midnight Pacific Time, 36 U.S. states (to be precise, 35 states plus the District of Columbia), Epic Games, and consumer class action plaintiffs brought a joint motion for either an adverse inference against Google or alternatively for sanctions in the Google Play Store antitrust case in the Northern District of California:
The key allegation is that "Google permanently deletes Google Chats every 24 hours—and did so even after this litigation commenced, after Plaintiffs repeatedly inquired about why those chats were missing from Google’s productions, and after Plaintiffs submitted a proffer on this exact issue at the Court’s direction." While Google apparently just blames this on an enterprise-wide default setting--"history off"--the governmental and private plaintiffs dismiss that excuse, arguing that "[a]ny administrator of Google Chats—an application developed by Google—could have changed this default setting at any point for all custodians." The emphasis on "by Google" is in the document itself. While it's a good thing when tech companies eat their own dog food (I wish someone could force all Apple employees to read their company-internal iMessage chats with the same poor contrast that users get when messages come in from Android users), they can't easily hide behind default settings and other properties of the services they create, control, and could change anytime.
The first footnote notes that Google Chats was not the only Google product they used, so the term "Google Chats" must be understood as a collective noun referring to all those services:
"To Plaintiffs’ knowledge, Google has employed different instant messaging platforms over time, including Google Hangouts, Google Meet, and, most recently, Google Chat. Plaintiffs refer to these platforms collectively as 'Google Chats' or 'Chats.'
Google has renamed and reshuffled its chat services. Most recently, Google Duo was merged into Google Meet.
Even the custodians (i.e., the Google employees who were specifically put under retention obligations due to this litigation) could have "changed this default setting on their own workstations," meaning that they wouldn't have needed any help from an admin and no one would have had to change the program code either. But according to the motion, Google "chose to do nothing to ensure" that those custodians changed the setting locally.
The first plaintiff in this set of Google Play cases was Epic's August 13, 2020 complaint. Less than a month later, "Google acknowledged that it was under an obligation to preserve evidence that could be relevant to the litigation by issuing an initial litigation hold notice."
The 36 states, Epic, and the consumer plaintiffs are convinced that "Google destroyed substantive information" as they found out through discovery and depositions "that Google employees use Google Chats on a daily or near daily basis, often for sensitive business communications" (emphasis in original) and "virtually every Google witness asked about the topic confirmed the pervasive use of Google Chats--and Google's failure to take sufficient steps to perserve those Chats." Google's position that those chats are "generally non-substantive" is revealing, as "generally" means there are exceptions.
The motion names Google's VP of Strategy & Operations for Platforms & Ecosystems, Jamie Rosenberg, its VP of User Expeirence and Product Management, Tian Lim, its Director of Play Partnerships, Strategy & Operations, Michael Marchak, and Senior Software Engineer Justin Mattson as examples of Google witnesses who testified on the use and non-retention of Google Chats.
Apparently, some chats were indeed produced by Google, and according to the heavily redacted motion, they "contain substantive post-litigation discussions of topics at the heart of the case."
It's a bit reminiscent of the "Communicate With Care" policy I mentioned further above that Google--according to the motion--"intentionally diverted sensitive communications to Chat, with the understanding that those Chats would be expunged daily."
What consequences should Google bear in the plaintiffs' opinion?
The plaintiffs have only one objective: to win the case. That's why their preferred remedy is an adverse inference instruction. The jury would be told that it "may or must presume the information [that Google deleted so it wouldn't be available as evidence in this litigation] was unfavorable" to Google.
The long-form order the plaintiffs propose says this:
"The Court will therefore instruct the jury that (1) Google had a discovery obligation to maintain Google Chats no later than August 13, 2020; (2) Google had a mechanism to do so; (3) Google failed to implement that mechanism; (4) Google automatically deleted relevant Google Chats for each custodian in this case; (5) this destruction prevented Plaintiffs and the jury from learning the contents of those Google Chats; and (6) the jury should assume that the information Google had destroyed would have supported Plaintiffs’ claims against Google."
Should Judge James Donato of the United States District Court for the Northern District of California considered that Rule 37(e)(2)(B) remedy overreaching, the plaintiffs at least want a Rule 37(e)(1) "curative jury instruction." That one would look more like items 1-5 of the above proposal, but would lack the adverse inference part (item 6).
As always, audiatur et altera pars. Let's see how Google seeks to justify its actions. And in the meantime, there'll be the big Epic Games v. Apple appellate hearing in the United States Court of Appeals for the Ninth Circuit. Here's my preview of that one.
