Google found to have violated order to save chat evidence in Epic antitrust case

A federal judge has ruled that Google violated a court order requiring it to preserve employee chat messages relevant to Epic’s antitrust case, according to Bloomberg and CNBC. San Francisco US District Judge James Donato said the tech giant “adopted a ‘don’t ask, don’t tell’ policy for keeping messages, at the expense of its preservation duties,” and must be sanctioned for its actions. Donato has yet to decide on what sanctions and penalties Google should face, but he ordered the company to cover Epic’s attorney’s fees related to this particular issue.

Donato said in his decision that Google gave almost 360 employees the complete freedom to decide whether or not to preserve chat histories. In a separate filing by the Department of Justice over the same complaint, the agency explained that the tech giant’s internal chatroom, which is used to discuss “substantive and sensitive business,” is set to delete chat messages within 24 hours by default. The agency expected Google to change its chat history setting in 2019 when it “reasonably anticipated [the] litigation,” but it still allegedly left the decision to individual employees. 

Epic Games, to support its case, recently submitted exhibits to show how Google employees tend to switch off chat history. In one example from 2021, Google CEO Sundar Pichai allegedly wrote: “…also can we change the setting of this group to history off.” He attempted to delete that message a few seconds later, according to the filing. Google employees also reportedly switch off chat histories when discussing topics, such as revenue sharing and mobile app distribution agreements, as well as a project that involves changing commission rates for Google Play. 

In a statement, a Google spokesperson said the company has worked with Epic and investigators over the years and has handed over millions of documents: “Our teams have conscientiously worked, for years, to respond to Epic and the state AGs’ discovery requests and we have produced over three million documents, including thousands of chats. We’ll continue to show the court how choice, security, and openness are built into Android and Google Play,” they said. 

The judge will hold further proceedings to finalize the sanctions Google must face. Donato said he’d like to see the evidence available “at the end of fact discovery,” so that Epic would be better positioned to “tell the Court what might have been lost in the Chat communications.”