This post is part of Revisiting Litigation Alleging Google Discovery Violations.
United States of America v. Google LLC – docket. 1:23-cv-00108-LMB-JFA (E.D. Va.).
Filed January 24, 2023. First filing as to discovery violations: August 2, 2024.
Case allegation: Google used unlawful methods to dominate the ad tech stack, including buying control of key tools, locking out rivals, buying and killing a burgeoning competitor, and “drying out” other competition. Complaint.
Case disposition: Bench trial complete. Awaiting decision.
United States’ Memorandum of Law ISO Plaintiffs’ Motion for an Adverse Inference and referenced documents.
On document preservation generally: “Aware of the risk of ‘several significant legal and regulatory matters’, Google … trained its employees to channel discussion of ‘hot topics’ that ‘may be used against [Google]’ … to Google’s internal instant-message chat tools [where] absent manual intervention by business employees on a chat-by-chat basis, all internal chat communications would be automatically destroyed after 24 hours. Google adopted this auto-delete policy knowing that its employees’ communications could someday be scrutinized by a Court such as this one.”
On purpose and intent of preservation failures: “Google’s spoliation is the predictable and intended result of the intersection of Google’s broader policies and culture with its specific litigation choices here. Google’s stated goal … was to avoid having its ‘sensitive’ communications ‘discovered by an adversary and used against … Google.’” “[N]ot only did Google choose to continue its policy of auto-deletion of chats after 24 hours, Google also chose to delay placing many of its employees on a litigation on hold in this case until months (or even years) after Google was required to preserve their documents.” “Employees … chose to make chats ‘history off’ … for the express purpose of evading discovery.” “Despite Google’s anticipation of litigation on [specified] subjects …, and Google’s agreement to produce relevant documents… Google continued its policy of automatically deleting chats.” “Google’s document production contains numerous examples of employees seeking to make chats ‘history off’ to ensure they were not discoverable.”
On effects of preservation failures: “Plaintiffs were deprived of valuable, likely irreplaceable, discovery. … The total volume of chats produced by Google in this case is remarkably low in proportion to the volume of other communications (e.g. emails) produced from the same employees.” “Chats are an important window into the candid thought processes, intentions, and observations of [employees … by design, one of the only places in which employees were free to write down candid observations or opinions relating to the core issues in this case.” “Google’s conduct … is deeply troubling. Google has stretched and weaponized the attorney-client privilege and its protections; it has intentionally spoliated evidence; and despite branding itself as a world-class technology innovator, it has engaged in a series of repeated errors and delays in the production of discovery, all of which have served Google’s broader, strategic ends of impeding its adversaries’ access to information to which they are entitled.”
On “Communicate with Care” training: Remarked that this training “advised Google employees that discussing sensitive topics via ‘off the record’ chats was ‘[b]etter than sending [an] email’ because such charts ‘are not retained by Google as emails are’.” “Second, ‘Communicate with Care’ cultivated a corporate culture of hiding documents from discovery by training Google employees to leverage pretextual claims of privilege, including detailed instructions on how to craft an email that will appear to be subject to the attorney-client privilege.”
On remedy: “The Court should presume the spoliated chats were unfavorable to Google.” “The Court may limit the testimony of witnesses who participated in the spoliation conduct at issue by precluding them from offering testimony supportive of Google on issues such as intent, procompetitive justifications, and the effect of Google’s challenged conduct on competition.” “The Court may preclude Google from arguing that a paucity of direct, contemporaneous evidence supports an inference that no additional evidence exists.” “The Court may sanction Google by admonishing, censuring, or otherwise publicly reprimanding it.” “When, as here, a litigant violates those obligations in ways that compromise or undercut the truth-seeking function of the judicial process, they must be held accountable. If not, Google and other companies aware of this litigation will continue to encourage employees to adopt careless or evasive discovery-related practices, particularly when faced with similar high-stakes litigation.”
Kent Walker Memo (September 16, 2008). “Please do think twice before you write about hot topics.” “To help avoid inadvertent retention of instant messages, we have decided to make ‘off the record’ the Google corporate default setting for Google Talk.”
Employee training as to “Communicate With Care.” Discusses what an employee might do when seeking to communicate on a sensitive subject. To a suggestion to send an email, remarks “Don’t send the email. Chat ‘off the record’ via Hangouts instead.” The training instructs that off the record chat is “Better than sending the email” because such chats are “not retained by Google as emails are.” See also Antitrust Basics for Search Team (March 2011).
Appendix C: Examples of Google Employees Spoliating Chats. Nine single-spaced pages listing spoliation by Google CEO Sundar Pichai (“can we change the setting of this group to history off”) as well as numerous employees:
Vip Andleigh: “lets keep confi, we can also turn off history. if i see something important, i’ll note it down somewhere”
Amin Charaniya: “btw didnt realize history is on for us” “mind if I turn it off?” “sure” [end of chat]
Amin Charaniya with dardelean@ and touma@: “this group is on record . . . we should kill it and create one that is single threaded and off the record” “who is in charge with creating this room? I really feel super uncomfortable us continuing this on the record” “im gonna create a new room and kill this one” “I copied everyone into a new room . . . let’s stop using this one” [end of chat]
Anthony Chavez: “separate topic – this chat room has history / is persisted? . . . can we configure it to be transient” “okay, let me create a new one right now. It’ll still be a space.” [end of chat]
Nash Islam: “too sensitive for email so keep on ping?”
Adam Juda: “I see that History is on in this chat. If that can’t be changed, can I please be removed from this discussion?”
Adam Juda: “My preference is history off”
Adam Juda: “How do we turn History off? I don’t do History on” [end of chat]
Roshan Khan: “Can you turn history off . . . Otherwise let’s chat in Vcs” [end of chat]
Woojim Kim: “can you turn off history?”
Chris Lasala: “maybe start an off the record ping thread”
Chris Lasala: “start a ping with history turned off”
Wendy Logan: “We can pivot to group chat with history off — or — keep the current setup and only reserve this space for non-sensitive discussions”
Uchechi Okereke: “Please can we turn history off?”
Aparna Pappu: “Please keep history off on this legally sensitive chat room”
Martin Pal with tris@ :”We want chat history on? I would generally prefer for us to keep history off.” … “let’s turn it off then” [end of chat]
Prabhakar Raghavan: “ugh pl stop this chat, for some reason History is on”
Prabhakar Raghavan: “I’m going to kill this room and re-create as a group chat with History OFF.”
Danielle Romain: “I’m not supportive of turning history on. The discussion that started this thread gets into legal and potentially competitive territory, which I’d like to be conscientious of having under privilege. So that you’re aware, when history is on, it’s discoverable. Sometimes that’s totally fine but I’d like to stick to the default of history off.”
Vidhya Srinivasan: “we should turn history off”
Vidhya Srinivasan: “pls turn off history”
Bonita Stewart and Jason Washing: “btw you might want to turn your chat history off” “geez . . . for sure! . . . thank you!” [end of chat]
Bonita Stewart and Cyrus Beagley: “on your chats you have the history turned on. we are advised to turn history off so messages are cleared after 24 hours” “oh I didn’t know that … I’ll turn it off then…”
Appendix D: Plaintiffs’ Timeline of Google’s Spoliation.
Appendix E: Plaintiffs’ chart showing a sharp increase of chats produced after Google suspended auto-delete. Plaintiffs remark on “at least two trial witnesses whose volume of substantive chats dramatically increased (eight times over) when Google suspended auto-deletion (Nirmal Jayaram and George Levitte).”
Google’s Memorandum of Law in Opposition to Plaintiffs’ Motion for an Adverse Inference. “Plaintiffs’ motion is barred because it is untimely.” “Plaintiffs have not demonstrated, by clear and convincing evidence, that Google acted with the specific intent to deprive them of evidence.” “Plaintiffs have not demonstrated prejudice, a prerequisite to any form of sanction under Rule 37(e)(1).” “Plaintiffs have not demonstrated that any ESI—much less ESI relevant to their claims—was lost.” “Plaintiffs’ request for sanctions pursuant to the court’s inherent authority should be denied because Rule 37 controls.”
Reply Memorandum of Law in Further Support of Plaintiffs’ Motion for an Adverse Inference. “Google does not dispute that it failed to meet that obligation and destroyed relevant chats. Google does not deny that witnesses, including senior executives, used chats to discuss their work, including work relevant to this case. Nor does Google deny that it: (i) made ‘history off’ the default setting for chats, such that they would be deleted automatically after 24 hours; (ii) required individual employees to make cumbersome, in-the-moment decisions about a chat’s relevance to a litigation hold in order to preserve them; and, most concerning, (iii) trained employees to discuss ‘sensitive’ matters in ‘history off’ chats so they would not be ‘discovered by an adversary,’ all of which facilitated and encouraged destruction of work-related chats. Google does not dispute that this conduct went on for years, stopping only after this case was filed.” “When Google was faced with increasing exposure from litigation by government enforcement agencies, it took a calculated risk to create a system that would deprive its litigation adversaries of evidence. The Court need not guess or make an inference about that goal; the Walker Memo expressly stated it. Over time, Google (including witnesses here) consistently underscored and reinforced the messages from the Walker Memo with mandatory corporate trainings about avoiding ‘discoverable’ communications. Consistent with that corporate training, Google employees, including witnesses here, deliberately turned to ‘off the record’ chats to discuss sensitive material they did not want preserved and turned over in litigation.”
Identifies six distinct facts Google failed to disclose to the United States about its document destruction practices:
1. “History off” chats (an undefined term) were automatically deleted after 24 hours;
2. “History off” was the default chat setting, absent manual intervention;
3. Google employees were asked to manually override this default on a chat-by-chat basis;
4. Google conducted no oversight of whether employees were manually preserving chats;
5. Google trained its employees to use “history-off” chats as preferable to email to discuss “sensitive” topics, so that such discussions would not be discoverable; and
6. Google’s in-house lawyers instructed employees to keep their chats “history off” so that they would be automatically deleted
Flags specific instances of Google employees failing to preserve relevant documents:
document custodian “Ms. [Chetna] Bindra, whom Plaintiffs now know was on litigation hold in December 2019, proposed the next month that a group discussing Google’s ad targeting policies, including trial witness Nitish Korula, ‘do a ping thread with history off and without Nitish’ because Mr. Korula was on litigation hold.” – source
document custodian “Bindra in Feb. 2020: ‘The thread has history on. Using the other one.’” – source
document custodian Jason Washing “turning ‘history off’ while on litigation hold” – source
“relevant history-off chats from [Haskell] Garon in 2020, copied into email by another custodian but not found in Garon’s files” – source
“trial witness and then-head of ads business [Jerry] Dischler successfully proposing ‘a group chat that disappears after 24h’ for business discussion in 2020” – source
trial witness “[Aparna] Pappu’s efforts in 2020 to turn history off” – sources 1, 2, 3, 4
trial witness “Pappu in 2020 participating in a chat that abruptly ends when colleague states, ‘I could see this being done in a way that leads to law suits . . . Omfg . . . History is on, jesus . . . Sigh [end of chat]’” – source
trial witness “Pappu in Oct. 2019: ‘so weird I realized this one random topic is history on!’ [end of chat]” – source (thereby indicating that many other topics have history off)
trial witness “LaSala in Dec. 2020: ‘Jeff turned history on! . . . I should be careful now’)” – source
trial witness “LaSala proposing ‘history off’ chats for sensitive business discussions with trial witness Duke Dukellis months after new lit hold dates.” – source
Adam Lasnik explaining why he avoids “discoverable medium[s]” for “especially sensitive” topics, including “competitive landscape (monopoly, crushing competition, etc.)” and instead uses “off-the-record chats” to avoid messages “ending up in court” – source
then-CEO of YouTube Susan Wojcicki proposed that then-Chief Business Officer of YouTube Robert Kyncl “send via Hangouts” because that is “off the record” or if not she “can change to off the record” – source
Plaintiffs’ Post-Trial Proposed Findings of Fact and Conclusions of Law at heading “The Court Should Sanction Google for Its Spoliation of Chats.” “Google’s conduct has thwarted the Court’s truth-seeking function not only in this case but in several other cases” (citing Google Search [update caption]). Flags “Google’s repeated and persistent efforts to ensure its employees’ chats were deleted despite its known discovery obligations.” On that basis, argues that “The Court should … go beyond mere condemnation to ensure Google’s ‘contempt’ for its ‘discovery obligations’ receives the appropriate sanctions.” “Because Google acted ‘with the intent to deprive’ Plaintiffs of the use of chats in this litigation, the Court may ‘presume that the lost information was unfavorable’ to Google. Specifically, the Court may reasonably infer that intentionally deleted chats about ‘sensitive’ topics relevant to the claims in this case would have been unfavorable to Google on the core issues that were disputed at trial, including market definition, monopoly power, Google’s intent, the anticompetitive nature of Google’s conduct, and the harm Google’s conduct caused its competitors and customers.”
August 27, 2024 hearing. Transcript not publicly available, but quoted in part in Plaintiffs’ Post-Trial Proposed Findings of Fact and Conclusions of Law at heading “The Court Should Sanction Google for Its Spoliation of Chats.” Court called Google’s conduct “very serious” “clear abuse of the [attorney-client] privilege” and “absolutely inappropriate and improper.” “Had Google set the default settings for chats to history on, ‘the government could see … in this particular case somebody deleted [a chat], then you could focus on why was that deleted.’” “Because Google kept its default settings for chats to history off, ‘You’ve lost that ability in this case because everything is deleted unless it’s saved’.” “[T] his record creates a very serious problem for Google in terms of how much credibility the Court will be able to apply. Intent is a serious issue in this case, and I think it’s going to be a problem given this history.”