The US government asked a federal court to sanction Google for allegedly using an auto-delete function on chats to destroy evidence needed in an antitrust lawsuit while falsely telling the government that it suspended its auto-deletion practices.

The US motion to sanction Google seeks a ruling that Google violated the rule against spoliation of evidence and « an evidentiary hearing to assess the appropriate sanctions to remedy Google’s spoliation. » The US also sought an order forcing « Google to provide further information about custodians’ history-off chat practices, through written declarations and oral testimony, in advance of the requested hearing. » The motion was filed under seal on February 10 and unsealed yesterday.

« Google consciously failed to preserve relevant evidence. The daily destruction of relevant evidence was inevitable when Google set a company-wide default to delete history-off chat messages every 24 hours, and then elected to maintain that auto-delete setting for custodians subject to a litigation hold, » US Department of Justice antitrust lawyers wrote in a memorandum supporting the motion.

Google « had a duty to preserve employee chat messages » starting in 2019 due to the litigation, the US motion said. « Google’s daily destruction of written records prejudiced the United States by depriving it of a rich source of candid discussions between Google’s executives, including likely trial witnesses, » according to the US filing in US District Court for the District of Columbia.

Google’s auto-deletions continued until February 8, the US said. « Amazingly, Google’s daily spoliation continued until this week, » the US alleged. « When the United States indicated that it would file this motion—following months of conferral—Google finally committed to ‘permanently set to history on’ and thus preserve its employees’ chat messages. »

A similar motion for sanctions was filed by 21 states that are also involved in the litigation against Google. The motions came in a lawsuit filed in October 2020 in which the US and states allege that Google illegally maintains monopolies in search and search advertising through anticompetitive and exclusionary practices. »

Epic Games also seeks sanction for chat deletions

Google’s « history-off » chats that are deleted every 24 hours previously came up in antitrust litigation over the Google Play Store. In that case, Plaintiff Epic Games and the Utah attorney general want the court to « issue adverse inference jury instructions to remedy Google’s spoliation of Google Chats. » The motion is still pending.

« Google blames its systematic spoliation of relevant evidence on an enterprise default setting for Google Chats that is set to ‘history off,’ but that is no excuse, » Epic Games wrote. « Any administrator of Google Chats—an application developed by Google—could have changed this default setting at any point for all custodians. Google has never claimed otherwise. But Google chose not to change the setting. It also chose to do nothing to ensure that its custodians changed this default setting on their own workstations. »

The US government’s new motion said, « Google’s refusal to suspend its auto-deletion policy earlier is especially notable in light of the sanctions motion filed in the Epic proceedings. Even after the plaintiffs in that case confronted Google with spoliation concerns, Google still withheld its 24-hour auto-deletion policy from the United States and continued to destroy written communications in this case. »

On the new motion, Google provided Ars a statement disputing the allegations. « We strongly refute the DOJ’s claims, » Google said. « Our teams have conscientiously worked for years to respond to inquiries and litigation. In fact, we have produced over 4 million documents in this case alone, and millions more to regulators around the world. »

US: Google falsely claimed to suspend auto-deletion

But the DOJ says Google repeatedly provided false information to the US about its chat-retention practices:

The Federal Rules of Civil Procedure required Google to suspend its auto-delete practices in mid-2019, when the company reasonably anticipated this litigation. Google did not. Instead, as described above, Google abdicated its burden to individual custodians to preserve potentially relevant chats. Few, if any, document custodians did so. That is, few custodians, if any, manually changed, on a chat-by-chat basis, the history default from off to on. This means that for nearly four years, Google systematically destroyed an entire category of written communications every 24 hours.

All this time, Google falsely told the United States that Google had « put a legal hold in place » that « suspends auto-deletion. » Indeed, during the United States’ investigation and the discovery phase of this litigation, Google repeatedly misrepresented its document preservation policies, which conveyed the false impression that the company was preserving all custodial chats. Not only did Google unequivocally assert during the investigation that its legal hold suspended auto-deletion, but Google continually failed to disclose—both to the United States and to the Court—its 24-hour auto-deletion policy. Instead, at every turn, Google reaffirmed that it was preserving and searching all potentially relevant written communications.

The dispute is similar to an earlier one in the same lawsuit that involved Google’s alleged practice of routinely CCing lawyers on emails even when no legal advice is being sought. In March 2022, the US and states asked the federal court to sanction Google for misusing attorney-client privilege to hide emails from litigation. The US also asked the court to « compel disclosure of documents unjustifiably claimed by Google as attorney-client privileged » because the practice of adding lawyers to emails « had no purpose except to mislead anyone who might seek the documents in an investigation, discovery, or ensuing dispute. »

In May 2022, Judge Amit Mehta denied the motion to sanction Google and compel the disclosure of documents. « Google is ordered, however, to ensure that all of the ‘silent-attorney emails’ at issue in the Motion have been re-reviewed to the same extent as the sample of 210 emails provided to the court for its in-camera review, » the judge wrote.