On March 28, 2023, a California federal judge sanctioned Google for failing to preserve evidence. The case began August 2020, when Epic Games and others sued Google in a class action lawsuit for violating antitrust laws, arguing that the company has unfairly monopolized the Android app distribution market with its Google Play Store. The suit also alleges that Google’s practices force app developers and consumers to use the Google Play Store.
On October 14, 2022, the plaintiffs asked the District Court Judge in the Northern District of California to punish Google, arguing that Google failed to preserve communications between its employees even while the case was pending. Apparently, Google has a company policy of deleting internal Google Chats every 24 hours. Google executive Genaro Lopez told the court that the company policy to delete chats was “to minimize the amount of obsolete or trivial information and try and ensure we’re only keeping those items that are absolutely necessary to do our jobs.” Google also attempted to justify the policy by explaining that each employee can change their chat settings to preserve communications if they wish to do so.
The presiding judge over the case, U.S. District Judge James Donato, was extremely concerned about Google’s deletion policy. Judge Donato asked the parties to provide the court with more information about the matter, including how many of the 260 Google employees who received the litigation hold notice elected to preserve their chats. He also noted that at the very first case management conference in October 2020, Google represented to the court that it had taken appropriate steps to preserve any evidence relevant to the issues in the action. If Google didn’t intend to preserve the chats, it should have told the court then. He asked the parties to come back with proposed remedies if the court found that Google allowed evidence to be deleted. “I’m not going to let Google get away with this,” the Judge said. “There is going to be a substantial, trial-related penalty.”
On March 28, 2023, Judge Donato officially sanctioned Google for failing to preserve evidence. Judge Donato ordered Google to cover the legal costs incurred by the plaintiffs in pursuing the sanctions motion, while leaving the more substantial punishment for further proceedings. Judge Donato held that Google should have known better since they are a frequent target of litigation and often must alert employees about the need to preserve potentially discoverable information. He concluded that in leaving the 24-hour deletion default in place even for relevant chats, Google’s conduct amounted to an intentional effort to keep the material from being used in the litigation. While Google employees were told not to use chat for subjects they were supposed to preserve, Google did nothing to monitor whether employees were actually preserving relevant chats as directed. In fact, many employees who received the litigation notice were unwilling to follow the instructions or disregarded the instructions altogether.
In a statement following the sanctions order, a Google spokesperson said that Google has worked for years to respond to the discovery requests in the case and has produced over three million documents, including thousands of chats. Google added: “Google will continue to show the court how choice, security, and openness are built into Android and Google Play.”
Epic Games is represented by Gary A. Bornstein and Lauren A. Moskowitz of Cravath Swaine Moore LLP.
The consumers are represented by Glen E. Summers and Karma M. Giulianelli of Bartlit Beck LLP and Aaron L. Schwartz and Hae Sung Nam of Kaplan Fox & Kilsheimer LLP.
Google is represented by Glenn D. Pomerantz and Justin P. Raphael of Munger Tolles & Olson LLP.
The overall case is In re: Google Play Store Antitrust Litigation, case number 3:21-md-02981, the consumer class action is In re Google Play Consumer Antitrust Litigation, case number 3:20-cv-05761, and the individual cases are Epic Games Inc. v. Google LLC et al., case number 3:20-cv-05671, and Match Group LLC et al. v. Google LLC et al., case number 3:22-cv-02746, the State of Utah et al. v. Google LLC et al., case number 3:21-cv-05227, all in the U.S. District Court for the Northern District of California.
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