Google accused of destroying evidence in legal case

Antitrust lawyers cry foul

Google continued to destroy communications even after saying it had stopped, DOJ attorneys allege

Lawyers for the US Department of Justice (DOJ) have accused Google, of destroying evidence pertinent to an antitrust lawsuit.

That case, brought by US attorneys general in 2020, alleges that Google "unlawfully maintains monopolies in the markets for general search services, search advertising, and general search text advertising".

In a memorandum written by lead attorney Kenneth Dintzer on 23rd February, the plaintiffs complain that Google continued destroying internal messages even after saying it had ceased doing so.

"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," Dintzer's memo says.

Google employees often use Hangouts or other chat tools to discuss matters off the record. These discussions are automatically deleted after 24 hours. The plaintiffs allege that Google continued with this practice even "after it reasonably anticipated litigation" and "and even when the company became a defendant in this litigation—every 24 hours up until February 8, 2023."

The default setting for these chats is "history off", the lawyers claim, meaning messages are automatically deleted. Users must deliberately select the "history on" setting to preserve messages.

Google agreed to suspend its auto-deletion practices after a court order in 2019, but took no action, they say.

"Google repeatedly misrepresented its document preservation policies, which conveyed the false impression that the company was preserving all custodial chats," the memo says.

"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."

It continues: "Amazingly, Google's daily spoliation continued until this week."

Google warned employees not to discuss sensitive matters via email, but to use off-the-record-chats instead. The company made a "series of misleading statements," the DOJ lawyers allege, asking the Court to consider sanctions for failure to make disclosures or to cooperate in discovery.

"Google's conduct meets this standard [Rule 37(e), electronic spoilation] because the company (a) knowingly destroyed history-off chat messages; (b) directed sensitive conversations to chats with the knowledge that those messages would not be discoverable; and (c) misled the United States to conceal the company's chat-destruction policy."