United States v. Google/Conclusions of Law/Section 8B
- B. The Court Declines to Impose Sanctions.
On the request for sanctions, the court declines to impose them. Not because Google’s failure to preserve chat messages might not warrant them. But because the sanctions Plaintiffs request do not move the needle on the court’s assessment of Google’s liability. UPTB at 75–76 (requesting evidentiary sanctions such as “a presumption that deleted chats were unfavorable to Google”; “a presumption that Google’s proffered justifications are pretextual”; and “a presumption that Google intended to maintain its monopoly”). An adverse evidentiary inference would not change the court’s finding that Google lacks monopoly power in the market for search ads or that there is no relevant market for general search ads. Nor would it change the court’s legal conclusion that Google had no duty to deal with Microsoft on its preferred terms as to SA360, nor its finding on the absence of anticompetitive effects, as Google is not likely to have possessed such evidence. See Areeda ¶ 1506 (“[I]n the absence of . . . provable anticompetitive effects, an evil mental state will not serve to condemn it.”). The court therefore declines to sanction Google for its failure to preserve its employees’ chat messages.[1]
The court’s decision not to sanction Google should not be understood as condoning Google’s failure to preserve chat evidence. Any company that puts the onus on its employees to identify 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.
- ↑ For this same reason, the court denies as moot Plaintiffs’ Motion to Take Judicial Notice of Certain Publicly Available Exhibits, ECF No. 843.