United States v. Google/Conclusions of Law/Section 8
VIII. INTENT AND SANCTIONS
The final piece of business the court must address is Plaintiffs’ contentions concerning Google’s intent and their demand that the court sanction Google pursuant to Federal Rule of Civil Procedure 37(e). UPTB at 75–76. Under Rule 37(e), “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court” may order sanctions upon a showing of prejudice or an intent to deny another party use of the information. Fed. R. Civ. P. 37(e). Plaintiffs urge the Court to sanction Google for two practices: (1) “its systemic destruction of documents” and (2) its “flagrant misuse of the attorney-client privilege,” both of which Plaintiffs also say are “strong indicators that Google knows its conduct is unlawful.” UPTB at 75.
When Plaintiffs speak of “systemic destruction of documents” they mean Google’s long-time practice (since 2008) of deleting chat messages among Google employees after 24 hours, unless the default setting is turned to “history on,” which preserves the chat. Id. at 76–78. This failure to retain chats continued even after Google received the document hold notice at the start of the investigative phase of this case. It was not until Plaintiffs moved for sanctions in February 2023, more than two years after filing suit, that Google changed its policy to automatically save all chats of employees under a legal hold. Plaintiffs maintain that, as a result of Google’s chat-deletion policy, “years’ worth of chats—likely full of relevant information—were destroyed” and thus never subject to regulatory scrutiny, “show[ing] that Google knew its practices were likely in violation of the antitrust laws and wanted to make proving that impossible.” Id. at 78. Plaintiffs demand sanctions under Rule 37(e) for Google’s failure to preserve chats after it received the litigation hold notice.
As for “flagrant misuse of the attorney-client privilege,” that refers to Google’s “Communicate with Care” initiative. Google trained its employees to add its in-house lawyers on “any written communication regarding Rev Share [RSA] and MADA.” Id. at 78 (quoting UPX320 at 605). It also instructed that, when “dealing with a sensitive issue” via email, to “ensure the email communication is privileged” employees could add a “lawyer in [the] ‘to’ field,” “mark ‘Attorney/Client Privileged,” and “ask the lawyer a question.” Pls.’ Mot. to Sanction Google & Compel Disclosure of Docs. Unjustifiably Claimed by Google as Att’y-Client Privileged, ECF No. 317, Ex. 1, ECF No. 317-4, at 363.
Google employees assiduously followed that advice. UPTB at 78–79 (collecting examples). As a result, Google’s outside counsel in this case initially withheld tens of thousands records on the grounds of privilege, which ultimately were re-reviewed, deemed not privileged, and produced to Plaintiffs. See Jt. Status Report, ECF No. 361, at 20–23. This creation of faux privileged materials, Plaintiffs contend, “demonstrates that Google intended to harm competition through its contracting practices and its supposed procompetitive justifications were simply pretext.” UPTB at 79.
In addition to these two practices, Plaintiffs also point out that, for years, Google has directed its employees to avoid using certain antitrust buzzwords in their communications. UPFOF ¶¶ 1225–1226. For example, in March 2011, Google prepared a presentation titled, “Antitrust Basics for Search Team,” which directed employees to “[a]void references to ‘markets,’ or ‘market share’ or ‘dominance,’” “[a]void discussions of ‘scale’ and ‘network effects,’” and “[a]void metaphors involving wars or sports, winning or losing.” UPX1066 at 880. Eight years later, Google still was telling employees not to “define markets and estimate shares” and to “[a]ssume every document you generate . . . will be seen by regulators.” UPX2091 at 584.