• by Wendy Davis  @wendyndavis, March 28, 2023

Google will face sanctions for failing to preserve internal “Chat” messages that could be relevant to an antitrust lawsuit pending in the Northern District of California, a federal judge ruled Tuesday.

“The court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation,” U.S. District Court Judge James Donato said in a 19-page decision.

The ruling came in a lawsuit by a coalition of state attorneys general, Epic Games and others that claim Google uses anticompetitive tactics to ensure that developers distribute apps through the Google Play Store.

Last year, Epic Games said in court papers that Google violated its obligation to preserve evidence relating to the lawsuit by automatically deleting messages employees sent through the Chat function.

Google responded hat it automatically preserves "chat threads within threaded rooms/spaces" in which employees who are obligated to preserve evidence participate, and also told those employees not to use Google Chat to discuss topics relevant to the litigation. 

But Donato found Google's approach to preserving evidence problematic, writing that the testimony showed that Google “left employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation.”

“The overall propriety of Chat is not in issue here,” Donato wrote. “What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties it was abundantly familiar with from countless prior cases. The record establishes that Google fell strikingly short on that score.”

Donato plans to issue monetary penalties, and said it would be reasonable for Google to pay fees associated with the motion for sanctions.

He also suggested he could issue non-monetary penalties that could affect Google's defense, but said more evidence was needed to determine those penalties. Donato specifically said won't issue “terminating sanctions” -- meaning he won't decide Google should lose the lawsuit due solely to its failure to preserve messages.

“This antitrust case will not be decided on the basis of lost Chat communications,” he wrote. “The determination of an appropriate non-monetary sanction requires further proceedings.”

A Google spokesperson stated that the company "conscientiously worked" for years to respond to Epic and the attorneys general's requests for information, and "produced over three million documents, including thousands of chats."