A federal judge’s headline-grabbing rebuke of Google’s “disturbing” effort to destroy evidence last week could become a powerful weapon in the Justice Department’s landmark effort to break up its search empire – and could haunt the company in court for years to come, according to legal experts.
US District Judge James Donato – who is presiding over “Fortnite” maker Epic Games’ antitrust case targeting the Google Play app store – said during a Dec. 1 hearing that he had “never seen anything so egregious” after viewing “disturbing evidence” that Google used an auto-erase feature to delete reams of relevant employee chat logs it had been ordered to preserve for the case.
Donato, who had already sanctioned Google in March over the deleted logs and its practice of instructing employees to label documents as privileged and confidential, said Google’s “willful and intentional suppression of relevant evidence in this case is deeply troubling to me as an officer of the court.”
“This conduct is a frontal assault on the fair administration of justice. It undercuts due process. It calls into question just resolution of legal disputes. It is antithetical to our system,” Donato added.
He also slammed Google general counsel Kent Walker for “tap-dancing around” questions about why the company hadn’t preserved relevant chats as ordered.
Donato’s smackdown bolsters claims by the Justice Department’s attorneys who made Google’s evidence destruction a major theme at the trial – with lead attorney Kenneth Dintzer declaring from the outset that the company “hid and destroyed documents because they knew they were violating the antitrust laws.”
Fierce criticism from a well-known judge like Donato also could influence the thinking of Judge Amit Mehta, who is set to decide in mid-2024 whether Google has maintained an illegal online search monopoly.
So far, Mehta has avoided making a decision on whether to sanction Google over the lost documents.
“That’s something that the DOJ will, I’m sure, in their post-trial briefing, point out to Judge Mehta again and again. When one judge speaks first, other judges take note of that,” Katherine Van Dyck, senior legal counsel at the American Economic Liberties Project, told The Post.
“If Judge Mehta looks at what Judge Donato has said about Google’s behavior and decides he agrees with it, that’s going to be a problem for Google…this is very bad for Google to have this out there in the world,” Van Dyck added.
Donato’s public takedown is likely to surface in a number of other cases targeting Google’s sprawling global empire, Van Dyck added.
Aside from the Google v. Epic Games trial and the DOJ’s search trial, Google is facing a wave of additional antitrust probes, including ones targeting its digital ad practices and Google Maps, that could shake up its entire business model.
Throughout both trials, Google has repeatedly denied wrongdoing in its handling of requested documents and asserted that the deleted chats were immaterial to the cases.
“Our teams have conscientiously worked, for years, to respond to Plaintiffs’ discovery requests and we have produced over four million documents, including thousands of chats,” Google said in a statement to The Post.
Donato’s aggressive tack is in sharp contrast to the passive approach taken by Mehta. The DOJ filed a motion to sanction Google for destroying evidence as far back as February, but pretrial proceedings and the exhaustive 10-week trial itself wrapped up without Mehta ever ruling on the request.
Differing trial formats are a potential explanation. The Google v. Epic case will be decided by a 10-person jury – meaning Donato had to decide on the sanctions motion early because of its potential impact on their deliberations.
The Google search case is a bench trial, with Mehta having sole discretion over the outcome and the ability to weigh in on evidence destruction at any point — including in his final ruling.
Still, critics point out that there was also nothing stopping Mehta – who drew criticism for allowing the once-in-a-generation court proceedings to play out with unprecedented secrecy – from taking a firm stand on Google’s chat deletions earlier in the trial.
“Mehta’s flavor is in the more unusual part of spectrum for a judge and, in my opinion as a practicing lawyer, very unfortunate for the profession,” said Megan Gray, a former Federal Trade Commission attorney and CEO of GrayMatters Law & Policy.
Rather than issue a pretrial ruling on whether to sanction, Mehta consolidated a proposed hearing on the DOJ’s motion into the trial itself and allow the feds to question witnesses about the company’s document preservation practices.
That sparked a heated segment in which DOJ lawyers grilled Google CEO Sundar Pichai over a now-infamous internal 2021 chat in which he asked a Google employee to “change the setting of this group to history off.”
Pichai said he has since ordered an end to a company policy that automatically destroyed employee messages after 24 hours.
According to the Federal Rules of Civil Procedure, a presiding judge can “presume that the lost information was unfavorable to the party” if that judge determines that the party “acted with the intent to deprive another party of the information’s use in the litigation.”
Despite Mehta’s reticence about the issue, Van Dyck argued Google’s actions “absolutely” warrant a sanction and constitute a “major breach of discovery protocols.”
“We’re talking about a very sophisticated defendant here. This isn’t just some mom-and-pop shop,” Van Dyck said. “They know that when they are facing a lawsuit, they cannot destroy documents and they were specifically told to preserve these chats in Google search and in Google Play Store and they didn’t.”
For his part, Donato has vowed to “get to the bottom of who is responsible for the suppressed evidence” at Google and enact punishment that is “separate and apart from anything that happens” at the Google v. Epic trial.
In a potentially crucial development for that case, Donato released jury instructions last week noting that jurors “may infer that the lost Chat messages contained evidence that would have been unfavorable to Google in this case.”
Closing arguments in the Google v. Epic case are slated to begin Monday.
A similar decision by Mehta would be damaging to Google’s chances in the search trial – but the company may still be better off now than if the documents had never been deleted, according to Rebecca Haw Allensworth, an antitrust law expert and professor at Vanderbilt Law School.
“Obviously, the thing that matters most is how it impacts the actual outcome of the case,” Allensworth said. “I think in both cases, the triers of fact will use the missing chats against Google. That’s bad for Google, but a smoking gun would be even better, which is why Google deleted them in the first place.”
