Google “systematically destroyed” instant message chats every 24 hours, violating federal rules for preserving communications potentially relevant to litigation, the Justice Department says in filing which became public on Thursday.
As a result Google by default, chats are only kept for 24 hours unless an employee chooses to turn on conversation history, “for nearly four years, Google systematically destroyed an entire category of written communications every 24 hours,” the department wrote in the filing.
According to the Justice Department, Google should have adjusted its default settings in mid-2019 “when the company reasonably anticipated this litigation.” Instead, it relied on individual employees to decide when the chats were potentially relevant to future litigation, the department said.
“Little, if any,” he did, according to the DOJ.
Meanwhile, according to investigators, Google “falsely” told the government that it had “implemented a legal block” that “pauses automatic deletion.” The government added that “Google has reaffirmed at every step that it retains and searches all potentially relevant written communications.”
The data erasure continued until this month, when the government indicated it would file a motion for sanctions and evidentiary hearings, investigators say. At that point, according to the DOJ, Google committed to “permanently turn on history.”
A Google spokesperson said in a statement that company officials “strongly refute the DOJ’s claims. Our teams have worked diligently for years to respond to inquiries and lawsuits. In fact, we have produced more than 4 million documents in this case alone, and millions more to regulators .” around the world.”
The alleged issue is one that previously surfaced in Epic Games’ antitrust lawsuit against Google.
Epic submitted exhibits in that case that appeared to suggest some Google employees believed chats were a safer place to have sensitive conversations. For example, one exhibit shows an employee commenting on the document saying, “As this is a sensitive topic, I prefer to discuss it offline or via hangout,” referring to Google’s chat product.
The parties in that dispute resolved the issue before a federal judge in the Northern District of California in two evidentiary hearings this year.
At one of those hearings on Jan. 31, Judge James Donato indicated he would be open to some kind of adverse jury instruction, but one that would allow the jury to draw its own conclusions about what the deletion of the messages means to the case.
An adverse jury instruction at its strictest would instruct the jury to assume that relevant documents that were destroyed would cast Google in a negative light, according to Eileen Scallen, a professor at UCLA Law School. expert in evidence and civil procedure. A lesser remedy might be to instruct the jury not to hold the action against the plaintiff for not having specific documents to support his claims.
Donato telegraphed that he might issue an instruction that fell somewhere in between, stressing that his language could change. He said such an instruction could be something along the lines of telling the jury that if it finds that Google did not adequately preserve certain documents, it may conclude that those documents were against the company’s interests.
While it’s difficult to replace the value of documents that could become important evidence, Scallen said the adverse jury instruction was considered “very damning.”
“The only person the jury respects in the courtroom is the judge,” Scallen said in a phone interview late last month regarding the Epic case. “And if a judge tells them you can assume it was bad news for Google, they’ll take that to heart.”
The Justice Department argued that even after Epic confronted Google about its chat deletion concerns in this case, the tech giant still withheld its deletion policy from the federal government “and continued to destroy written communications in this case.”
The practices denied federal prosecutors the opportunity to see “candid discussions between Google executives, including potential trial witnesses,” the government alleged.
The Justice Department is asking the court to rule that Google violated the Federal Rule of Civil Procedure by destroying the chats, order a hearing to determine how to sanction the company and remedy the alleged destruction of evidence, and order it to provide more information about its chat practices.
Scallen said that if Google “didn’t give clear instructions to maintain” relevant chats, “this notion that they left it up to individuals is just not responsible.”
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