A federal judge in California has ruled that Google should be sanctioned for failing to preserve chat messages related to an antitrust case brought by Epic Games. Google faces similar allegations by the Department of Justice in its antitrust litigation against the company. Google allegedly left it to employees to determine when to turn on and off their chat history when discussing matters relevant to the legal proceedings. Epic said Google should have ensured those messages were preserved by default.
Google Sanctioned for Failing to Preserve Chat Messages in Antitrust Case
Google has been ordered to face sanctions after a federal judge in California found that the company failed to preserve chat messages between employees related to an antitrust case brought by Epic Games. The judge ruled that the company “adopted a ‘don’t ask, don’t tell’ policy for keeping messages, at the expense of its preservation duties.” Google now faces similar allegations by the Department of Justice in its antitrust litigation against the company.
Epic Games alleges that Google failed to retain chat messages between employees that it should have preserved while under a litigation hold. Google allegedly left it to employees to determine when to turn on and off their chat history when discussing matters relevant to the legal proceedings. Epic said Google should have ensured those messages were preserved by default. Exhibits presented by Epic seem to show that Google employees saw chats as a less formal way to communicate.
The judge, James Donato, made clear the case “will not be decided on the basis of lost Chat communications,” but said deciding on the proper non-monetary sanction requires more proceedings. Donato ordered Google to cover reasonable attorneys fees related to the motion over the evidentiary issue.
“Our teams have conscientiously worked, for years, to respond to Epic and the state AGs’ discovery requests and we have produced over three million documents, including thousands of chats,” a Google spokesperson said in an emailed statement.
This ruling was made as part of multidistrict litigation involving several plaintiffs alleging anticompetitive behavior by Google around its mobile app store. Plaintiffs also include attorneys general of 38 states and Washington, D.C., Match Group, and a consumer class.
Background of the Antitrust Case Against Google
The antitrust case against Google was first initiated by Epic Games, a popular video game developer, in August 2020. The company claimed that Google was using its monopolistic control over the Android operating system to stifle competition in the app market. Specifically, Epic Games accused Google of requiring developers to use Google’s payment system for in-app purchases, which charges a 30% commission fee. Epic Games claimed that Google’s anti-competitive practices were hurting both consumers and developers.
Google’s app store, Google Play, is the primary distribution channel for Android apps. It is estimated that Google Play generates over $20 billion in annual revenue for the company. Google’s 30% commission fee on in-app purchases is a significant source of that revenue.
In October 2020, the Department of Justice filed a separate antitrust lawsuit against Google, accusing the company of maintaining a monopoly in search and search advertising. The lawsuit alleges that Google has engaged in anticompetitive practices, including entering into exclusionary agreements and engaging in self-preferencing, to maintain its dominance in the market.
The antitrust case against Google has also drawn the attention of state attorneys general, who filed a separate lawsuit against the company in December 2020. The attorneys general accused Google of using its dominance in the search market to stifle competition and harm consumers. The lawsuit alleges that Google engages in anticompetitive practices, including entering into exclusionary agreements and engaging in self-preferencing, to maintain its monopoly position.
In addition to Epic Games and the state attorneys general, several other companies have joined the antitrust litigation against Google. Match Group, the parent company of popular dating apps such as Tinder and OkCupid, has accused Google of using its control over the app store to stifle competition. A consumer class has also filed a lawsuit against Google, alleging that the company’s anticompetitive practices have resulted in higher prices for consumers.
The antitrust case against Google is one of the largest and most significant antitrust cases in recent history.