Google Sanctioned in Epic Games Case for Failing to Preserve Employees’ Messages

Google employees have failed to preserve internal chat histories, which is troubling for its defense in Epic Games’ antitrust case against the tech giant. In late March, a federal judge in California ruled that the behavior warranted sanctions, including the payment of the plaintiff’s attorney fees in addition to potential non-monetary punishment.

Google “adopted a ‘don’t ask, don’t tell’ policy for keeping messages, at the expense of its preservation duties,” Judge James Donato said in the filing.

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Both Epic and the US Department of Justice have cited Google’s deletion of such exchanges, the DOJ claiming the company “routinely destroyed” the entire category of communication. It has filed its own antitrust investigation of Google.

The latest filing includes conversations among employees about whether they needed to preserve messages about issues that may concern the litigation. In a court exhibit, Epic’s attorneys showed that Google Chief Executive Officer Sundar Pichai asked for the chat history to be turned off and then tried to delete a preceding message. He was unsuccessful in his efforts, according to TechCrunch, and it was not made clear if Pichai’s actions had any bearing on the lawsuit.

In other chats, however, Google employees were shown to be asking each other to turn off chat history at times when such communications may have impacted the case. For instance, requests were made concerning Revenue Share Agreement (RSA) contracts, Mobile App Distribution agreements, and a project involving the adjustment of the Google Play commission rate when developers complained, and regulation was threatened.

“I talk about RSA related things all day and I don’t have history on for all my chats :),” Google’s Head of Platforms & Ecosystems Strategy for Android, Margaret Lam, wrote in evidence presented in court. The remark came after another employee had informed her that any conversation about RSA needed to have chat history turned on “per policy.”

Lam is found in additional conversations to have asked other employees to turn off the history.

The 35 exhibits presented in court demonstrated that switching off the chat history was a common practice among Google employees. The question was why it was done. It was not clear whether they were planning to discuss Epic Games or its antitrust claims specifically, according to TechCrunch, but Google employees were having business-related conversations that may or may not have been relevant to the case.

Epic first filed suit against Google in 2020 after it forced Google to remove its Fortnite mobile game from the Play Store.