A federal judge’s headline-grabbing rebuke of Google’s “disturbing” effort to destroy evidence last week could change into a strong weapon within the Justice Department’s landmark effort to interrupt up its search empire – and will haunt the corporate in court for years to come back, in accordance with legal experts.
US District Judge James Donato – who’s presiding over “Fortnite” maker Epic Games’ antitrust case targeting the Google Play app store – said during a Dec. 1 hearing that he had “never seen anything so egregious” after viewing “disturbing evidence” that Google used an auto-erase feature to delete reams of relevant worker chat logs it had been ordered to preserve for the case.
Donato, who had already sanctioned Google in March over the deleted logs and its practice of instructing employees to label documents as privileged and confidential, said Google’s “willful and intentional suppression of relevant evidence on this case is deeply troubling to me as an officer of the court.”
“This conduct is a frontal assault on the fair administration of justice. It undercuts due process. It calls into query just resolution of legal disputes. It’s antithetical to our system,” Donato added.
He also slammed Google general counsel Kent Walker for “tap-dancing around” questions on why the corporate hadn’t preserved relevant chats as ordered.
Donato’s smackdown bolsters claims by the Justice Department’s attorneys who made Google’s evidence destruction a significant theme on the trial – with lead attorney Kenneth Dintzer declaring from the outset that the corporate “hid and destroyed documents because they knew they were violating the antitrust laws.”
Fierce criticism from a widely known judge like Donato also could influence the considering of Judge Amit Mehta, who is about to choose in mid-2024 whether Google has maintained an illegal online search monopoly.
Thus far, Mehta has avoided making a call on whether to sanction Google over the lost documents.
“That’s something that the DOJ will, I’m sure, of their post-trial briefing, indicate to Judge Mehta time and again. When one judge speaks first, other judges pay attention to that,” Katherine Van Dyck, senior legal counsel on the American Economic Liberties Project, told The Post.
“If Judge Mehta looks at what Judge Donato has said about Google’s behavior and decides he agrees with it, that’s going to be an issue for Google…this could be very bad for Google to have this on the market on the earth,” Van Dyck added.
Donato’s public takedown is more likely to surface in a variety of other cases targeting Google’s sprawling global empire, Van Dyck added.
Except for the Google v. Epic Games trial and the DOJ’s search trial, Google is facing a wave of additional antitrust probes, including ones targeting its digital ad practices and Google Maps, that would shake up its entire business model.
Throughout each trials, Google has repeatedly denied wrongdoing in its handling of requested documents and asserted that the deleted chats were immaterial to the cases.
“Our teams have conscientiously worked, for years, to answer Plaintiffs’ discovery requests and we now have produced over 4 million documents, including 1000’s of chats,” Google said in an announcement to The Post.
Donato’s aggressive tack is in sharp contrast to the passive approach taken by Mehta. The DOJ filed a motion to sanction Google for destroying evidence way back to February, but pretrial proceedings and the exhaustive 10-week trial itself wrapped up without Mehta ever ruling on the request.
Differing trial formats are a possible explanation. The Google v. Epic case shall be decided by a 10-person jury – meaning Donato had to choose on the sanctions motion early due to its potential impact on their deliberations.
The Google search case is a bench trial, with Mehta having sole discretion over the end result and the flexibility to weigh in on evidence destruction at any point — including in his final ruling.
Still, critics indicate that there was also nothing stopping Mehta – who drew criticism for allowing the once-in-a-generation court proceedings to play out with unprecedented secrecy – from taking a firm stand on Google’s chat deletions earlier within the trial.
“Mehta’s flavor is within the more odd a part of spectrum for a judge and, in my view as a practicing lawyer, very unlucky for the occupation,” said Megan Gray, a former Federal Trade Commission attorney and CEO of GrayMatters Law & Policy.
Somewhat than issue a pretrial ruling on whether to sanction, Mehta consolidated a proposed hearing on the DOJ’s motion into the trial itself and permit the feds to query witnesses in regards to the company’s document preservation practices.
That sparked a heated segment during which DOJ lawyers grilled Google CEO Sundar Pichai over a now-infamous internal 2021 chat during which he asked a Google worker to “change the setting of this group to history off.”
Pichai said he has since ordered an end to an organization policy that robotically destroyed worker messages after 24 hours.
In keeping with the Federal Rules of Civil Procedure, a presiding judge can “presume that the lost information was unfavorable to the party” if that judge determines that the party “acted with the intent to deprive one other party of the knowledge’s use within the litigation.”
Despite Mehta’s reticence in regards to the issue, Van Dyck argued Google’s actions “absolutely” warrant a sanction and constitute a “major breach of discovery protocols.”
“We’re talking a couple of very sophisticated defendant here. This isn’t just a few mom-and-pop shop,” Van Dyck said. “They know that once they are facing a lawsuit, they can’t destroy documents they usually were specifically told to preserve these chats in Google search and in Google Play Store they usually didn’t.”
For his part, Donato has vowed to “get to the underside of who’s accountable for the suppressed evidence” at Google and enact punishment that’s “separate and aside from anything that happens” on the Google v. Epic trial.
In a potentially crucial development for that case, Donato released jury instructions last week noting that jurors “may infer that the lost Chat messages contained evidence that may have been unfavorable to Google on this case.”
Closing arguments within the Google v. Epic case are slated to start Monday.
An analogous decision by Mehta could be damaging to Google’s probabilities within the search trial – but the corporate should still be higher off now than if the documents had never been deleted, in accordance with Rebecca Haw Allensworth, an antitrust law expert and professor at Vanderbilt Law School.
“Obviously, the thing that matters most is the way it impacts the actual end result of the case,” Allensworth said. “I believe in each cases, the triers of fact will use the missing chats against Google. That’s bad for Google, but a smoking gun could be even higher, which is why Google deleted them in the primary place.”