Google’s document-retention policy for litigation has drawn judicial attention in three high-profile federal antitrust trials.
From its “communicate with care” policy that instructed employees to copy an attorney on certain emails so they could become privileged to the automatic deletion of employee chat messages after 24 hours, the technology giant has provoked the dismay of three federal judges in recent trials.
U.S. District Court Judge Leonie Brinkema, who’s overseeing the Justice Department’s antitrust lawsuit against Google over the dominance of its online advertising platform, blasted the company during a pre-trial motion hearing for its “absolutely inappropriate and improper” legal hold policies, according to media reports.
A litigant’s electronic records, including emails and employees’ internal chat messages, are required to be preserved as documents pertinent to the litigation and subject to the discovery process, under Rule 37 of the Federal Rules of Civil Procedure. Failure to do so may result in sanctions from a judge or in the court drawing adverse evidentiary inferences from the loss of those records.
The issue of adverse inference could become relevant for Brinkema as she presides over the bench trial in Alexandria, Va. The trial began Sept. 9, with the government concluding its case on Friday and Google opening its defense this week.
Google’s internal emails have served as some of the government’s key evidence thus far in the trial. Justice Department lawyers have highlighted some Google executives’ communications about the company’s dominant advertising position. On the witness stand, however, those employees have sought to disavow what they wrote in the past, the Associated Press reported Sept. 19.
“We take seriously our obligations to preserve and produce relevant documents,” Google spokesman Peter Schottenfels said in a statement, The Verge reported Sept. 19. “We have for years responded to inquiries and litigation, and we educate our employees about legal privilege.”
The Justice Department had also raised objections to Google’s legal hold policies in its antitrust trial related to search-engine dominance and the company’s distribution agreements via payments it made to mobile phone and other device makers to feature Google’s search technology.
In that case, filed in 2020, government lawyers asked U.S. District Judge Amit Mehta to sanction the company for deliberate spoliation of evidence due to the 24-hour automatic deletion of employees’ chat messages. The default setting deleted those chats; an employee would have to manually change the settings to retain messages.
Last month, Mehta ruled Google operates a monopoly that violated parts of the Sherman Antitrust Act. The remedy phase of that trial is ongoing and Google has said it will appeal Mehta’s decision.
While Mehta declined to sanction Google for its document-retention practices — saying that the lack of documentation did not affect the outcome — he wrote the court was “taken aback by the lengths to which Google goes to avoid a paper trail for regulators and litigants.”
“The court’s decision not to sanction Google should not be understood as condoning Google’s failure to preserve chat evidence,” Mehta wrote. “Any company that puts the onus on its employees to identity and preserve relevant evidence does so at its own peril. Google avoided sanctions in this case. It may not be so lucky in the next one.”
In a March 2023 ruling, U.S. District Court Judge James Donato found Google “fell strikingly short” of its duty to preserve evidence from its employees’ chat sessions. That case, in which Epic Games sued the tech giant alleging that Google’s Play store for apps constituted an unlawful monopoly, ended with a California jury ruling against Google in December.
Because of the Rule 37 spoliation issue, Donato had instructed jurors to assume the information in the lost chat messages was unfavorable to Google and to not grant the company a benefit of the doubt during deliberations.
