Judge considers sanctions over Google's shocking destruction of internal chats

Enlarge / Kenneth Dinzer, a U.S. Department of Justice litigator, speaks in Washington, D.C., on September 20, 2023, during an antitrust trial to determine whether Alphabet Inc.'s Google maintains a monopoly in the online search business. Appear in federal court.

Near the end of the second day of closing arguments in the Google monopoly case, U.S. District Judge Amit Mehta announced sanctions over what the U.S. Department of Justice described as “routine, regular, routine destruction of evidence” by Google. I considered whether it was justified.

Google was accused of enacting a policy that told employees to turn off chat history by default when discussing sensitive topics, such as Google's revenue-sharing agreements and mobile application distribution agreements. The Justice Department and state attorneys general argued that these agreements work to maintain Google's monopoly on search.

According to the Department of Justice, Google may have destroyed hundreds of thousands of chat sessions during the investigation as well as the litigation. Google only stopped this practice after the Department of Justice discovered this policy. Justice Department lawyer Kenneth Dintzer told Mehta on Friday that the Justice Department was seeking to conceal information because the court “knew that ignoring history violated antitrust laws.” “We should conclude that this indicates a deliberate intention,” he said.

Mehta at least agreed that “Google's document retention policies leave a lot of room for improvement,” and expressed shock and surprise that a company as large as Google would enact such a policy as a best practice. .

Google attorney Colette Connor told Mehta that the Justice Department should have been aware of Google's policy long before it challenged the practice. Conner said Google explicitly disclosed this policy to the Texas attorney general, who was involved in a Justice Department antitrust case involving both Google's search and ad tech businesses.

Connor also argued that Google's actions did not warrant sanctions because there was no evidence that any of the lost chats shed new light on the case. Mehta somewhat disputes this, telling Connor, “We just want to know what we don't know. We don't know if there was a treasure trove of materials that were destroyed.”

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In his rebuttal, Dinzer told Mehta that Google's decision to tell the state of Texas but not the federal government about the policy did not satisfy its disclosure obligations under the Federal Rules of Civil Procedure in this case. He said he had not. This rule states that “only if a court finds that a party acted with the intent to deprive another party of information to be used in the litigation,” the court will “find that the information lost was prejudicial to the party.” It can be estimated.''

The Justice Department asked the court to make this decision and issue four orders imposing sanctions on Google. They told the court that there was a “presumption that the deleted chats were prejudicial,” that the “presumption of Google's proposed justification” for deleting the chats was “pretextual” (hiding Google's true rationale), and that It asks for an order to “presume Google intended” to remove it. “Preserve the monopoly.'' The government also wants to “prohibit Google's claims that lack of evidence is evidence of an adverse inference,'' which the Department of Justice says will make the deleted chats unfavorable to Google. This will prevent Google from claiming that it is just assuming that.

Mehta asked Connor if he agreed that at the “minimum” it was Google's “negligence” to rely on employees to save chats about sensitive discussions, but Connor disagreed. Ta. He argued that Google's history hiding policy is “reasonable” “given the typical usage of chat.”

Mr. Connor told Mr. Mehta that the Justice Department must prove that Google intended to suppress evidence for the court to order sanctions.

Mehta suggested that intent could be demonstrated in other ways, saying that in discussions that could indicate monopolistic behavior, “Google should and should not say things to its employees.” “I gave very careful advice regarding this,” he recalled. Mehta told Connor that this included telling employees “not to use the word market,” and raised concerns that such actions could be interpreted as Google's intent to destroy evidence. she asked.

But Connor objected again.

“No, I don't think you can use that as evidence,” Connor said. “That has nothing to do with this claim.”

But Dinzer argued in his rebuttal that there was evidence of a link. He said testimony from Google employees showed that Google's chat policies were intentionally “uniformly used as a way to communicate without creating discoverable information” to hide suspected antitrust violations. was shown.

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