When a senior Google producer mentioned that the changes they were considering could lead to lawsuits, he texted two of the company’s managers. Immediately, he realized the chat’s past performance was on, so the talk would not be immediately deleted, and could be found by enemies in any legal actions.
” Story is on, jesus”, the chairman texted. ” Sigh”.
What state and federal regulators claim are the Mountain View systems giant’s long-running ploys to conceal and damage internal communications that could be used by authorities or against it in court are highlighted by incidents like this, which have been presented as evidence in three ongoing anti-monopoly cases against Google.
A Virginia national court judge came to the conclusion that “awful a lot of information has likely been destroyed,” and the methods sparked a San Francisco federal court judge to condemn Google for lying to the judge and purposefully keeping data from competitors.
” It’s like they’ve developed their own moral code, and that moral code is to support whatever judgments they make”, said Jason Kint, CEO of Digital Content Next, a trade association representing website publishers, who has been carefully following the circumstances.
Google said this week that it was “fully complied” with its “obligations to preserve and produce appropriate documents” in lawful actions and that it had “fully complied” with the San Francisco case’s 2022 court filing,” by taking powerful steps to preserve relevant chats.” Judge James Donato disagreed.
Donato, in San Francisco federal prosecutor, said he will condemn Google over destroyed evidence. Judge Leonie Brinkema of the Virginia federal court has yet to decide whether to sanction the business for what she described as” a number of issues with how Google approached the preservation of information.” In District of Columbia federal judge, Judge Amit Mehta, who , ruled in August that Google holds an illegitimate monopoly , on online research, declined to condemn Google for what he saw as incredible efforts to prevent a paper trail, ruling that sanctions do not alter his assessment of the company’s liability.
Businesses are legally required to keep internal communications regardless of whether legal action has begun or not once they have a reasonable reason to believe that another party may seek to obtain them in a lawsuit.
According to UC Berkeley law school lecturer John Steele, a specialist in legal ethics and professional liability,” the federal courts in particular have very high expectations about the care and prudence with which corporate America needs to preserve documents.” Federal judges, Steele said, “typically want to see commitment from high levels in a company” that evidence is preserved.
According to judges in current anti-monopoly cases, Google employs two strategies to keep undesirable information out of court: allowing employees to discuss legal matters on a messaging platform where chats would be automatically deleted, and encouraging employees to inappropriately add lawyers to discussions in an effort to conceal communications under the doctrine of attorney-client privilege.
Judges have criticized Google’s handling of evidence in all three cases, and it is fighting fervently to avoid becoming a monopoly in each.
San Francisco: California and three dozen other states and Epic Games against Google
Last year in San Francisco U. S. District Court, Judge Donato, presiding over an anti-monopoly lawsuit targeting Google’s Play app store, described Google’s suppression of evidence as” the most serious and disturbing” he had seen as a judge.
In a court filing, the states and Fortnite’s publisher of computer games Epic accused Google of upholding” a company-wide culture of concealment, including CEO Sundar Pichai.” In a group chat that was held internally while Google was already in litigation, Pichai wrote,” Can we change the setting of this group history off,” and then, according to the plaintiffs, failed to delete the “incriminating message nine seconds later.”
Google left employees with no legal expertise “largely on their own” in sorting out which chats needed to be kept, and “did nothing” to monitor chat preservation, Donato wrote in his March 2023 decision.
The company “intended to subvert” the process of providing materials to its lawsuit opponents, and evidence was “lost with the intent to prevent its use in litigation”, Donato wrote. Google also “falsely assured” the court it had protected evidence and was” not truthful” about chat settings, the judge said.
Google pledged in a court filing in February 2023 that it would enable chat history for its nearly 400 employees, who are required to retain the information in the case. Donato also stated in his order that the company would not be able to disable it.
In December, a jury in the case found , Google held an illegal app-distribution monopoly. The judge vowed to punish Google for deleted chats using court-ordered sanctions.
Virginia: U. S. government, California and 16 other states against Google
The director’s statement about the history of the director’s comment was presented as evidence in the Virginia federal court case against Google, which claims Google has an unlawful monopoly on digital ads. The plaintiffs claimed in a lawsuit filed in August that Google had made its internal chats delete automatically after 24 hours, as it had done in a memo from its lawyers, which referenced” significant legal and regulatory matters.” The lawsuit was filed two weeks after the company filed the policy, according to the filing.
In a Nov. 5 filing, the federal government and states tied Google’s tactics to its market dominance, claiming it trained workers” to abuse the attorney-client privilege and destroy documents” in order to protect its alleged monopoly.
Judge Brinkema, overseeing that case, said in an August hearing that Google employees added lawyers into discussions as a” smokescreen” to invoke attorney-client privilege. She referred to the action as” clear abuse.”
Google pointed to its August filing in that case, which stated that the 2008 memo instructed employees to “take steps to preserve relevant Chat messages,” and that this was the opposite of an intention to destroy evidence.
Judge Mehta from D.C. federal court stated in August that he was “taken aback by the lengths Google goes to avoid creating a paper trail” for regulators and legal foes in another anti-monopoly lawsuit against Google over internet search. The judge cited auto-deletion of chats, and noted that Google instructed employees “dealing with a sensitive issue” via email to include a lawyer, mark the message “attorney/client privileged” and “ask the lawyer a question”. Workers “assiduously followed that advice”, and as a result, Google’s legal team at first withheld tens of thousands of purportedly privileged records it later handed over to the plaintiffs, Mehta said.
Mehta, in his August ruling, said his decision not to punish Google” should not be understood as condoning Google’s failure to preserve chat evidence”.
Google, the judge warned, “may not be so lucky in the next one”.
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