In the case In re Google Play Store Antitrust Litig., No. 21-md-02981-JD (N.D. Cal. March 28, 2023), California District Judge James Donato concluded that sanctions were “warranted” and Google was sanctioned for Google Chat spoliation, where Google was ordered to cover plaintiffs’ attorneys’ fees and costs in bringing the Rule 37 motion, with additional sanctions possible “at the end of fact discovery”.
The MDL action involves multiple antitrust cases challenging Google’s Play Store practices as anticompetitive. Even before the MDL was instituted, the Court directed the parties to coordinate discovery with an eye toward containing costs and burdens. However, In April 2021, plaintiffs asked Google about a curious lack of Chat messages in its document productions. In October 2021, Google said that Google Chats are typically deleted after 24 hours, and that Google had not suspended this auto-deletion even after this litigation began. Google chose instead to let employees make their own personal choices about preserving chats.
After an evidentiary hearing and Google producing to plaintiffs approximately 52,271 additional chats (at the Court’s direction), Judge Donato included a findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a) into his decision.
Selected findings from Judge Donato’s FINDINGS OF FACT were as follows:
“I. GOOGLE IS A FREQUENT AND SOPHISTICATED LITIGATION PARTY
- Google employees are no strangers to document production and discovery obligations. At any given time, Google has thousands of employees who are under a litigation hold for document preservation.
II. GOOGLE TRAINS EMPLOYEES TO ‘COMMUNICATE WITH CARE’
- Google employees took the Care training to heart. In multiple instances, internal communications actively expressed concerns about the possibility of disclosure in litigation and the risks of preserving Chats.
III. GOOGLE CHAT
- Google Chat is an essential tool used daily by Google employees. Jamie Rosenberg testified that he ‘use[s] Chat every day.’
- ‘History’ can be turned ‘on’ or ‘off” by users for a particular Chat…History is off by default for all Chats among Google employees with the sole exception of threaded rooms.
- Different types of Chats have different default retention periods. Under Google’s standard retention policy, one-on-one Google Chats with history off are retained for 24 hours only.
- An employee has several options to preserve a Chat for longer than its default retention period.
IV. GOOGLE’S CHAT PRESERVATION PRACTICES IN THIS CASE
- Approximately 360 individuals are subject to the legal hold for this case, about 40 of whom have been designated as custodians.
- Google has the technical ability to set Chat history to ‘on’ as the default for all employees who are subject to a legal hold, but it chooses not to…Google has preserved all Chat messages that had history toggled on,…but for any Chat where history was off, Google left it up to each individual hold recipient to decide which, if any, of those one-on-one or group chats should be preserved.
- The litigation hold recipients were (1) instructed not to use Google Chat to ‘discuss any topics that are related to their legal hold,’ and (2) told that ‘if they do find themselves in a conversation that strays into a topic related to the legal hold, they’re asked to turn history on at that point to make sure that those messages are properly preserved.’
V. HOW EMPLOYEES RESPONDED
- Overall, the record demonstrates that Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat preservation instructions, and sometimes disregarded the instructions altogether.
- Google left employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation.”
Judge Donato also included a couple of example chats produced by Google in February 2023 pursuant to the Court’s order which “provided additional evidence of highly spotty practices in response to the litigation hold notices”, including this one:
With regard to Google’s conduct, Judge Donato stated: “The overall propriety of Chat is not in issue here. What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties it was abundantly familiar with from countless prior cases… The record establishes that Google fell strikingly short on that score.”
Judge Donato also stated: “Why this situation has come to pass is a mystery. From the start of this case, Google has had every opportunity to flag the handling of Chat and air concerns about potential burden, costs, and related factors. At the very least, Google should have advised plaintiffs about its preservation approach early in the litigation, and engaged in a discussion with them. It chose to stay silent until compelled to speak by the filing of the Rule 37 motion and the Court’s intervention. The Court has repeatedly asked Google why it never mentioned Chat until the issue became a substantial problem. It has not provided an explanation, which is worrisome, especially in light of its unlimited access to accomplished legal counsel, and its long experience with the duty of evidence preservation.”
Noting that Google’s handling of chat was “in sharp contrast to Google’s handling of email”, Judge Donato stated: “The Court fully appreciates plaintiffs’ dilemma of trying to prove the contents of what Google has deleted. Even so, the principle of proportionality demands that the remedy fit the wrong, and the Court would like to see the state of play of the evidence at the end of fact discovery. At that time, plaintiffs will be better positioned to tell the Court what might have been lost in the Chat communications.” However, Google was sanctioned for Google Chat spoliation in that Judge Donato stated: “it is entirely appropriate for Google to cover plaintiffs’ reasonable attorneys’ fees and costs in bringing the Rule 37 motion, including the joint statement that preceded the motion and the evidentiary hearing and related events.”
So, what do you think? Are you surprised that a company as big as Google was sanctioned for Google Chat spoliation? Please share any comments you might have or if you’d like to know more about a particular topic.
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The context — an antitrust case in which presumably an ongoing conspiracy was alleged — likely added to the plaintiffs’ and court’s concern here.