In a significant development during the Epic v. Google trial, Judge James Donato expressed deep concern over Google's conduct in systematically suppressing evidence, calling it "a frontal assault on the fair administration of justice." The case holds implications for the future of the Android app store and is part of broader antitrust scrutiny against Google.
Testimony in the trial and a parallel antitrust suit by the Department of Justice (DOJ) revealed that Google automatically deleted chat messages between employees, with employees, including CEO Sundar Pichai, intentionally using this feature to make conversations disappear. Pichai and others admitted to not changing the auto-delete setting even after being aware of their legal obligation to preserve evidence.
Judge Donato expressed dissatisfaction with the testimony of Alphabet chief legal officer Kent Walker, accusing him of "tap-dancing around" during the proceedings. Walker stated that he never audited whether employees were retaining evidence, leaving it up to individuals to decide which communications might be relevant to a legal case.
The judge described Google's conduct as "the most serious and disturbing evidence" he has seen in his decade on the bench, stating that it undermines due process, calls into question a fair resolution of legal disputes, and is antithetical to the legal system.
Despite this, Judge Donato decided not to issue a "mandatory inference instruction" to the jury, which would have informed them that Google destroyed evidence detrimental to its case. Instead, a "permissive" jury instruction was given, allowing the jury to decide whether to infer that the missing evidence might have favored Epic and harmed Google.
While stating that a mandatory inference instruction would be within bounds, Judge Donato expressed his intention to pursue the issue independently outside the trial, promising to get to the bottom of who is responsible for evidence suppression.
Closing arguments and jury instructions are scheduled for December 11th in the Epic v. Google trial. The outcome of this case may have broader implications for the regulation of app stores and the antitrust landscape.
Google declined to comment on Judge Donato's statements, and Walker confirmed that the auto-delete setting is now off by default for all Google employees.
