Google Risks Attack Over Deleted Chats in Search Monopoly Trial

Evidence of self-destructing company chats stands to play a central role in the US Justice Department’s blockbuster antitrust showdown with Alphabet Inc.‘s Google.

The DOJ, a cadre of states, and the search giant go to trial Tuesday in the US District Court for the District of Columbia, in a case that will have far-reaching consequences for the internet search ecosystem. The lawsuit, involving allegations Google used restrictive contracts to secure its place as the default search engine on devices and in browsers, is the most high-stakes antitrust courtroom battle involving Big Tech since government enforcers took on Microsoft Corp. in the 1990s.

Hanging over Google’s defense are separate allegations of impropriety: that company employees regularly used an internal chat system set to auto-delete messages, both before and during its litigation with the DOJ. Employees were trained to “Communicate With Care,” use the “off the record” chats when discussing business related to litigation, and be mindful of the legal implications of what they wrote, according to court filings in the DC district court, as well as a separate federal case in California.

Judge Amit P. Mehta—who will preside over the projected 10-week trial—has not yet ruled on the DOJ’s February motion asking for sanctions over the deleted messages. But the Justice Department’s antitrust division may seek permission to infer at trial that such deletions hid damaging information that would have undercut Google’s defenses.

“It would be fair to describe this motion as a sword of Damocles,” said Katherine Van Dyck, senior legal counsel at the American Economic Liberties Project, an anti-monopoly advocacy group. “It could be extremely damaging to Google’s case” if Mehta decides against the company on the sanctions motion, she said.

Unlike a jury trial, it isn’t necessary for the presiding judge to rule on the motion ahead of time and decide whether to work it into the jury instructions. Mehta can make a decision later, incorporating the consequences into his thinking retroactively.

A Google spokesperson responded to the allegations by saying the company has been diligent about government requests for information.

“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,” the spokesperson said in an emailed statement.

In filings, the company argued the auto-deleted chats contained no substantive communications, and that it took steps to preserve more sensitive messages.

Trial Tactics

Even without a ruling from Mehta, Google’s conduct opens up several avenues of attack for the DOJ at trial.

If the evidence Google willingly handed over in discovery paints a compelling and damaging picture, the evidence it deleted must have been even more damning, the antitrust division will likely argue.

The DOJ may ask witnesses how they discussed sensitive material, if those conversations involved the internal chat system, and whether the employees were told not to preserve those records, Van Dyck said.

Questions about the alleged auto-delete function and who instructed employees to leave it turned on are relevant for the DOJ’s broader case, potentially helping it illustrate the company’s state of mind, said Christine Bartholomew, a professor at the University at Buffalo School of Law who specializes in antitrust and evidence.

Government attorneys can also use the act of deletion to show how Google saw itself and its position as a potential monopolist, Bartholomew said. By probing Google witnesses, the Justice Department has the opportunity to ask how the search engine contracts were built internally, and whether they were discussed in emails, face to face, or via the chats, Bartholomew said.

They can say, “How often did you talk about this? Oh, you did it by chat? Tell me about your chat,” Bartholomew said.

“From an evidentiary standpoint, that a conversation would go from email to chat has its own implications that you would want to highlight,” she added.

Even if the DOJ can’t show the default deletions were intentional, the circumstantial evidence paints a picture “that there was concern in these peoples’ minds about the conduct they were undertaking,” she said.

Questioning witnesses about such deletions isn’t a slam-dunk for the government, Bloomberg Law legal analyst Eleanor Tyler said.

“It’s not fun to prove a negative,” Tyler said. Showing what the deleted chats contained is nearly impossible, and often the most important factor is whether the judge sees the alleged behavior as an attempt to subvert justice, she said.

Mehta previously sided with Google over the DOJ’s motion for sanctions over claims it hid evidence by having employees copy attorneys on sensitive emails, although he ordered the company to double check it had fully complied with its discovery obligations.

“But what you can do is show the lengths somebody went to to make it go away,” Tyler said. “That’s usually where the fireworks are.”

‘Don’t Ask, Don’t Tell’

One federal court has already found Google liable for message deletions.

In a March ruling in an unrelated consumer antitrust case against the company, Judge James Donato of the US District Court for the Northern District of California ruled chat destruction warranted sanctions because it was “intended to subvert the discovery process.”

“In effect, Google adopted a ‘don’t ask, don’t tell’ policy for chat preservation, at the expense of its preservation duties,” he said.

Donato declined to rule on the terms of the sanction itself, although he found it appropriate that Google pay attorneys’ fees and related costs the plaintiffs accrued in bringing the sanctions motion.

Google announced Sept. 5 it had reached a tentative settlement of claims brought in California federal court by consumers and dozens of state attorneys general. The tentative settlement does not include claims from app developers Epic Games Inc. and Match Group Inc.

The case is United States of America v. Google, D.D.C., No. 1:20-cv-03010.