Google filed an opposition motion on Thursday, opposing discovery sanctions brought by the plaintiffs over deleted internal chat messages in the Google Play Store antitrust litigation. According to Google, it has complied with its evidentiary preservation obligations and the plaintiffs cannot show that it deliberately intended to deprive them of the information.
As previously reported, the federal, state, and private plaintiffs pursuing monopolization claims against Google over its app store distribution practices and payment policies sought sanctions against the tech titan for what they perceived as evidentiary spoliation. In turn, the plaintiffs requested an adverse jury instruction permitting the panel to infer that the deleted information was harmful to Google’s case.
Now, Google responds that it “fully complied with its discovery obligations by taking robust steps to preserve relevant chats, including by issuing litigation hold notices regarding chat preservation and automatically preserving certain categories of chats.” Contrary to the plaintiffs’ allegations, it says it took reasonable steps to preserve the internal chat messages, which is all that is required by law.
Further, the defendant claims that the plaintiffs have not shown they will suffer prejudice as a result of being denied the discovery. The plaintiffs did not explain why the “massive corpus” of other discovery would not suffice, pointing to a statement from the presiding judge that “‘[w]hen you have email and memos and documents and everything else, the chats seems [like] the tail on the dog, in terms of where you’re going to find good evidence.’”
Lastly, Google ventured that plaintiffs’ requested relief is reserved for extreme circumstances not present here. The inference that the lost Google information was unfavorable “makes no sense here in light of Google’s extensive efforts to preserve custodial ESI and its issuance of litigation hold instructions regarding chat preservation,” the opposition added.
Google is represented by Morgan, Lewis & Bockius LLP and O’Melveny Myers LLP.
