Friday, November 11, 2022

U.S. states, Epic Games, other plaintiffs reinforce motion for discovery sanctions against Google over systematic deletion of chats

While Epic Games' antitrust action against Apple will be heard by the United States Court of Appeals for the Ninth Circuit on Monday ("November Fortnite"), the simultaneously-filed case against Google over the Google Play Store is still more than six months away from trial. The Apple litigation was put on an extremely ambitious schedule in light of other pending cases, especially the Pepper consumer class action that is a "teenager" by now.

About a month ago, all current plaintiffs against Google--36 U.S. states led by Utah, Epic Games, Match Group, and a consumer class--filed a motion for discovery sanctions against Google over its failure to preserve any relevant chats. By default, all Google-internal chats (using Google chat platforms) are deleted every 24 hours.

On November 3, Google opposed that motion, arguing that the plaintiffs were asking for too much and that Google had done what it could reasonably be expected to do, which is basically just to tell custodians that they should preserve relevant chats:

Google's opposition to motion for sanctions over non-preservation of Google Chats

Late on Thursday, the governmental and private plaintiffs reinforced their request for sanctions:

Plaintiffs' Reply in Support of Their Motion for Sanctions

The part that is--due to redactions--impossible to understand from the outside is where Epic and the other plaintiffs point to evidence that, contrary to Google's representations, those Google Charts have indeed been used for relevant business communications as opposed to mere logistics like "let's meet at 2 PM." But such evidence does appear to exist.

Google stresses that the standard is not perfection: there is a limit as to how much a litigant must do for preservation. The plaintiffs, however, emphasize (in different words) that they're not complaining about the occasional and inevitable oversight, but about the systematic and automatic deletion of virtually all such chats:

"Google produced only 3,084 Chats (many of which were "history on" group chats), roughly 0.1% of the 3.1 million total documents Google has product. [...] That meager number is evidence of deficiency because multiple custodians testifed that they use Chats every day."

I must say that Google's reference to "proportionality" is hard to understand. Given the amounts of data Google stores (and I don't even mean the search engine or other end user-facing services, but even just their internal data), preserving those chats--which would likely happen if the default setting was "history on"--would be less than a drop in the bucket.

This is my favorite passage from the plaintiffs' reply brief:

"Google is one of the most sophisticated litigants in the world, its resources are unparalleled, and it designed the Chat platform at issue. Google could have easily chosen to turn off its own auto-delete mechanism, but it chose not to. In fact, it continues to delete these Chats today. Such conduct warrants sanctions."

In the District of Columbia, Google got away with its "Communicate With Care" policy. The case for sanctions appears stronger now in the Northern District of California, provided that the sealed testimony cited by the plaintiffs shows that some relevant business communications were conducted in the form of Google Chats.

In other Google Play-related news, Google yesterday announced the expansion of its "User Choice Billing" pilot to the United States, Brazil, and South Africa; Google also announced related pilot projects with Spotify and Match competitor Bumble. I have repeatedly criticized "User Choice Billing" as totally insufficient to address competition concerns: it doesn't really enable app developers to save costs unless they strike secret "sweetheart" deals with Google as Spotify and Bumble apparently did. I'll comment on this in more detail on another occasion. Suffice it to say for now that I don't expect "User Choice Billing" to be satisfactory to Epic. Of course, Epic will have to listen to any offers, but in the end it wants the Epic Games Store to be able to compete on a level playing field.