US sues Google for deleting key evidence in bad faith
States allege the search giant deleted millions of chats over years to hide evidence from antitrust regulators, despite court assurances...
Today I switch gears from Meta, truth, and democracy to Google, antitrust, and deleted evidence with an important scoop that you won’t want to miss.
But first, join me in welcoming new subscribers over the weekend.
Hi then to newsletter #259 for new joiners from the C-suite at Vogue, The New Yorker, Vanity Fair, GQ and Wired publisher Conde Nast, Amazon Web Services, NBC News in San Jose California, Reuters in Toronto, ITV News in London, the Institute for Ethics in AI at the University of Oxford, the Journalism Lab at the Digital Transition School of the University of Applied Sciences in Utrecht, Holland, Sydney creative agency Popula, and the peak body for Australian TV and radio broadcasters CBBA, among others.
As well as London movie giant Envision, home to Harry Potter producer David Barron, who made six of the franchise films banking $6 billion at the Box Office.
And thanks to our sponsor this week, Avid Collective. If you’d like to sponsor, see here.
Now back to my scoop.
Cast your mind back 13 months to December 2023…
During a lull in Google’s antitrust battle with Epic Games, something happened that I’d never ever seen in 35-plus years of reporting.
My phone lit up while I was in Cuba filming my Netflix doco on Gary Glitter. People in court were alerting me to an unfolding drama.
The judge hearing the case had decided to get personal.
Judge James Donato had been triggered by Department of Justice evidence that Google implemented a “systemic” policy to delete chat histories to hide evidence.
The judge gathered his thoughts. And then began.
“It’s deeply troubling to me as a judicial officer of the United States,” he opened.
“It’s the most serious and disturbing evidence I have ever seen in my decade on the bench with respect to a party intentionally suppressing relevant evidence.
“This conduct is a frontal assault on the fair administration of justice. It undercuts due process.
“It calls into question just resolution of legal disputes. It is antithetical to our system.”
Then he went thermo...
“I’m going to get to the bottom of who is responsible. That is going to be separate and apart from anything that happens here, but that day is coming.”
Wow I thought, with the phone pinned to my ear in Havana. That should cause some sleepless nights at the Googleplex.
Only then, the trail went silent. Or so it seemed.
Because quietly, Government lawyers across 17 US States were sifting testimony and pulling strands from millions of pages of depositions and subpoenaed docs.
Now, slightly more than 400 days later, they are ready with a blockbuster suit alleging an illegal policy within Google to delete chats to hide evidence.
Now Google’s facing another massive court battle. Groundhog Day guys 2025.
Let’s get into the nuts and bolts…
Over the past two years, Google has been sued over its Play Store, its 90 per cent monopoly on search, and its grip on the $238 billion global ad tech market.
The suits broke through Google’s carapace to reveal the giant’s inner workings. Google went on to lose two of the cases, and the verdict on ad tech arrives soon.
But simmering below the surface of the evidence that made the headlines was a recurring theme that Google had deleted millions of pages of critical evidence.
DoJ lawyer Kenneth Dintzer took up where Donato left off.
On the opening day of the search trial, he told Judge Amit Mehta that Google had a policy to delete chats to keep documents out of regulators’ hands.
“They turned history off, your honour, so they could rewrite it here in this courtroom,” he said.
Then, more silence, until Google lost its search trial.
Then, Judge Mehta raised the deletions again, warning Google’s Louboutin-shod lawyers and cashmere C-suite:
“The court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants.
“It is no wonder that this case has lacked the kind of nakedly anticompetitive communications seen in Microsoft and other cases.
“Google clearly took to heart the lessons. It trained its employees, rather effectively, not to create “bad” evidence.
“Ultimately, it does not matter. Liability does not rise or fall on whether there is “smoking gun” proof of anticompetitive intent.
“Any company that puts the onus on its employees to identify and preserve relevant evidence does so at its own peril.”
Two strikes, but no reaction, but the three judges were all for one.
As judge Leonie Brinkema prepared to open the ad tech trial, she joined the others in her condemnation.
The judge famed for exposing the CIA for torture said: “This is not the way in which a responsible corporate entity should function. A clear abuse of privilege.”
Now this...
The Attorney Generals across 33 US States have brought a new suit, alleging Google:
Deleted millions of pages of key evidence “deliberately and in bad faith”
Trained staff to destroy evidence to avoid scrutiny from antitrust regulators.
Urged staff to use off the record Google Chat and then set history to off.
The States allege that the chats “contained evidence on intent, deception…”
96 per cent of CEO Sundar Pichai’s chats were destroyed.
Another four million chats from key execs were also wiped every year.
Despite Google making assurances in January 2020, it was keeping evidence.
The suit is signed by the Attorneys Generals of Texas, Alaska, Arkansas, Florida, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nevada, North Dakota, Puerto Rico, South Carolina, South Dakota, and Utah.
They allege:
Google’s Chat retention policies were deliberately created for the express purpose of depriving enforcement authorities of the use of Google’s employees’ chats in litigation.
The fact Google preserved emails by default but not chats (which it pressured its employees to use) creates the strong inference that the policy was intentional and in bad faith.
A party who destroys 90 plus per cent of a category of evidence produced by an employee under a litigation hold intends to deprive its adversary of that evidence.
Google’s remedial action in 2023 hammers the points home. Once its policy was uncovered, Google implemented a fix.
That it did so swiftly after being caught red handed shows that its prior noncompliance was wilful.
Severe sanctions are necessary not only to punish Google, but also to deter other civil litigants from engaging in similar conduct.
Ouch.
This is how the States allege this went down.
“For decades, Google used an instant messaging application, Google Chat, for its employees to communicate.
“Knowing chats could be “used against” it in litigation, Google intentionally implemented training and document retention policies from 2008 until 2023 that destroyed the vast majority of these…
“…including those sent and received by employees subject to litigation holds.”
Note: A litigation hold is when a company is told by a court that it must preserve documents that may be used as evidence.
The allegations continue:
“Google did this deliberately and in bad faith.
“Take it from Google’s Chief Legal Counsel, who told employees in writing that its Chat retention policies were specifically designed to ensure most chats would not be available to adversaries in future litigation.
“The scheme worked. Millions of chats between Google employees involved in the misconduct alleged in this litigation have been destroyed.
“These chats contained relevant evidence on intent, deception, and knowledge that is not obtainable from any other source.”
It claims “Google’s intentional, bad faith spoliation” - a legal word for destroying evidence - damaged the States’ case, and they want the company punished.
More sleepless nights then for Sundar.
The suit continues:
“Google Chat is an instant messaging tool designed by Google that allows employees to communicate internally.
“Google Chat contains a history setting that can be turned on or off for each chat conversation.
“Chats sent or received when the history is turned off are deleted after 24 hours, regardless of whether any employee in the chat is subject to a litigation hold.
“Google designed chat so that history off chats never pass through Google’s preservation software (Vault) used to enforce its retention policies.
“Deleted chats cannot be recovered.
“From 2008 to February 2023, to “help avoid inadvertent retention of instant messages” that could “become subject to review in legal discovery,” Google made history off the default setting for almost all employees, even those subject to litigation holds.
“Google had the ability to set chat history to on as the default. It was simply not what Google chose for Google employees’ chats.
“Until February 2023, Google left it up to its employees subject to litigation holds to decide for themselves whether to switch chat history from the default off to on.
“Unlike chats, the e-mails of employees under a litigation hold were preserved by default and such setting could not be overridden by those employees.”
The dates here are important.
Its lawyers knew success would attract the attention of antitrust regulators. The States allege:
Google warned employees as early as November 2007 not to create written records that “last forever” and could be “scrutinized by antitrust regulators”.
Particularly on competition-related topics including market definition and dominance, competitors, or bundling products to lock in consumers.
In September 2008, Google’s Chief Legal Officer Kent Walker sent an email to employees warning the company faced “significant legal and regulatory matters”.
And that “anything you write can become subject to review in legal discovery” and “may be used against” Google.
In that same email, he announced the new Google policy to “make off the record the Google corporate default setting for chats”.
Noting that “on the record conversations become part of your (more or less) permanent record and are added to Google’s long-term document storehouse”.
The court papers don’t reveal more details of Kent’s mails, but I reported on them during the search antitrust trial in October 2023 so can reproduce them here.
“As you know, Google continues to be in the midst of several significant legal and regulatory matters, including government review of our deal with Yahoo!,” the court heard Walker said in a September 2008 email to staff shown at the trial.
“To help avoid inadvertent retention of instant messages, we have decided to make off the record the Google corporate default setting for chats.”
The new allegations continue:
Google trained employees to follow this policy.
Since at least 2018, an interactive training for employees warned Google is “constantly in the public eye… and the courthouse”.
That Google “often has to produce employee communications as evidence,” and employees therefore “need to be cautious in their communications”.
Google taught employees that sending an off the record chat is “better than sending an email” because off the record chats “are not retained by Google as emails are”.
Employees took management’s warnings to heart.
They regularly expressed concerns about the risks of preserving chats that could later be produced in litigation.
To avoid this issue, they extensively used history off chats to communicate with each other regarding substantive business issues, including ad tech.
Because employees knew these communications were systemically destroyed, these chats likely expressed candid Google employee reactions to relevant misconduct that was not fully captured.
Google’s policy was so well ingrained that many of its designated custodians in this case never even tried to preserve their chats.
Not until February 2023, the time a federal court rebuked it for chats spoliation, did Google finally change default setting to history on.
The earlier evidence was contained in this call for sanctions.
The latest suit continues:
Google knew it was facing ad tech antitrust investigations and litigation before it chose to make history off the default setting in 2008.
By 2013, Google specifically anticipated ad tech-related litigation. And even Google concedes that it had an obligation to preserve evidence by September 2019.
The papers say that as the US prepared to bring the bombshell court cases Google assured them “in January 2020 that it was “taking reasonable and appropriate steps to ensure its compliance” with preservation obligations.
Despite this representation, Google utterly failed to implement timely litigation holds on its employees.
Of Google’s 202 custodians in this matter, 61 were not placed on a litigation hold until 2022 or later, more than three years after, two years after Google represented that it had implemented litigation holds, and 16 years after Google first anticipated ad tech litigation.
The predictable and intended result of Google’s approach was Google destroyed millions of relevant chat messages.
The allegations continue:
Five individuals, including Sundar Pichai (Google’s CEO), were custodians, and Google produced the logs for those five from the period December 2022 to February 2023.
The logs showed that none of those five custodians ever affirmatively switched history on. It remained off until Google forced chats history on in 2023.
Google’s policies resulted in the destruction of 96% of Pichai’s chats.
Based on the number of history off messages reflected in the logs as to the five available custodians, Google’s policies appear to have resulted in the deletion of about 20,000 chat messages per custodian per year.
Totalling between 2.8 and four million chat messages per year across all custodians to this litigation.
Many of these deleted chats would have been relevant. Of the witnesses deposed in this case, at least 13 said they used chats daily.
Both Google’s corporate representative on chats and its CEO (Pichai) agreed that Google’s employees use chats daily as an essential tool.
The few preserved chats that Google produced demonstrate that employees used chat to discuss information relevant, including chats that are evidence of deception and intent to monopolize.
To date, Google has produced over six million documents, only approximately 14-15,000 of which are chat conversations.
By contrast, Google produced approximately 4.2 million emails.
Of the Chats produced, none were from the 2000-2010, one from 2011, and only a handful from 2012-2015; the vast majority were from 2020-2023.
The law required Google “to take reasonable steps to preserve” electronically stored information for the case. Failure to do so can attract severe sanctions.
The papers continue:
The deleted chats are indisputably relevant.
Google’s employees extensively utilized chat to communicate regarding substantive business issues, including ad-tech-related business relevant to this case.
Indeed, chats were the recommended mode of communication for “sensitive” business discussions.
Google admits it had an obligation to preserve evidence no later than September 2019. But in truth, Google’s duty to preserve evidence arose much earlier.
“Google knew chats could be relevant to potential antitrust litigation since at least 2013 (and arguably as far back as 2006).
Google’s abject failure to take these or any other reasonable steps to preserve its employees’ Chats resulted in millions of deleted communications.
The States are demanding legal sanctions because they say Google “intentionally failed to preserve chats” to hide evidence.
Google’s Chat retention policies were deliberately created for the express purpose of depriving enforcement authorities of the use of Google’s employees’ chats in litigation.
The fact Google preserved emails by default, but not chats (which it pressured its employees to use) creates the strong inference that the policy was intentional and in bad faith.
A party who destroys 90 plus per cent of a category of evidence produced by an employee under a litigation hold intends to deprive its adversary of that evidence.
Google’s remedial action in 2023 hammers the points home. Once its policy was uncovered, Google implemented a fix.
That it did so swiftly after being caught red handed shows that its prior noncompliance was wilful.
Severe sanctions are necessary not only to punish Google, but also to deter other civil litigants from engaging in similar conduct.
It’s a humdinger, and there’s much more to come. I’ll follow it to the end.
Journalism is my only source of income. I publish investigations like this for free but charge AU$17 a month for access to my archive. Please consider starting 2025 with a subscription.
Sign up to five friends or colleagues for a 50 per cent discount.
And for a limited time, I am offering a free hour-long consultation with anyone who becomes a founding member.