Google merits sanctions for failing to preserve employee messages in the Epic antitrust case, a judge says

On Tuesday, a California federal judge ruled that Google should be sanctioned as a result of its failure to keep track of chat messages between employees related to an antitrust case brought by Epic Games.

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This filing by the judge stated that the company "adopted a 'don't ask, don't tell' policy with regard to keeping messages, at the expense of its preservation duties."

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Although the judge did not yet determine what sanctions Google should face, she did write in her opinion that she "would like to see how the evidence will stand at the end of fact discovery" before making any decisions. This will give plaintiffs a better opportunity to explain to the Court what might have been lost in the chat communications. This will allow the Court to make a more informed decision.

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The Department of Justice has made similar accusations regarding Google's alleged destruction of potential evidence as part of its antitrust litigation against the company. According to a Google spokesperson, the company disagrees with the claims made by the DOJ at the time of the DOJ's filing.

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It was included in the latest filing that a string of messages was exchanged between Google executives in order to debate whether or not they should keep logs of chat between them in order to defend themselves.

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Epic claims that, while under a litigation hold, Google failed to preserve chat messages between employees that should have been retained during that time. There are reports that Google left it to individual employees to determine when to turn on and when to turn off their chat history when discussing matters relevant to legal proceedings. As Epic argued, Google should have ensured that by default, those messages were preserved. A number of exhibits presented by Epic appear to prove that Google employees viewed chats as a less formal way of communicating than email.

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Judge James Donato made it clear that the case "will not be decided based on lost chat communications," but said that determining the most appropriate non-monetary sanction will require further proceedings.

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Google was ordered by Donato to cover reasonable attorneys fees related to the motion over the issue of evidentiary evidence.

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“For years, our teams have worked conscientiously to comply with Epic and the state AGs' discovery requests, and we have produced over three million documents, including thousands of chats, as part of that effort,” a Google spokesperson stated in an emailed statement.

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There was no statement provided by Epic regarding this story.