Google, which does not preserve chats in the epic case, deserves sanctions, says the judge

  • Google “adopted a ‘don’t ask, don’t tell’ policy to retain messages, at the expense of its preservation obligations,” a federal judge said.
  • The court ordered Google to pay legal fees involved in the dispute, but is still deciding remedies.

A Google sign is pictured during the company’s presentation of a detailed investment plan for Germany outside the Google office in Berlin, Germany, on August 31, 2021.

Annegret Regards | Reuters

Google should be punished for failing to preserve chat messages between employees related to an antitrust lawsuit brought by Epic Games, a federal judge in California ruled on Tuesday.

The company “adopted a ‘don’t ask, don’t tell’ policy to retain messages, at the expense of its preservation obligations,” the judge said in the filing.

The judge has not yet decided what sanctions Google should face, writing that “the court wants to see the status of the evidence at the end of fact-finding. At that point, plaintiffs will be better positioned to tell the court what may have been lost in the chat communications.”

Google faces similar accusations of destroying potential evidence from the Justice Department in its antitrust lawsuit against the company. A Google spokesperson said at the time of the DOJ’s filing that it disagrees with the DOJ’s allegations.

The latest filing included a series of messages between Google executives debating whether they needed to keep chat history on matters that might be related to the lawsuit.

Epic argued that Google failed to keep chat messages between employees that it should have preserved while it was in litigation. Google reportedly left it up to employees to decide when to turn their chat history on and off when discussing matters relevant to the lawsuit. Epic said that Google should have ensured that these messages were preserved by default. Exhibits presented by Epic appear to show that Google employees viewed chat as a less formal way to communicate.

The judge, James Donato, made it clear that the case “will not be decided on the basis of lost chat communications,” but said that deciding on the appropriate non-monetary sanction requires multiple hearings.

Donato ordered Google to cover reasonable attorneys’ fees related to the motion on the evidentiary issue.

“Our teams have worked conscientiously for years to respond to the discovery by Epic and state AGs
requests, and we’ve produced over three million documents, including thousands of chats,” a Google spokesperson said in an emailed statement.

Epic did not provide a statement for this story.

SEE: Colorado attorney general weighs in on Google lawsuit

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