Late last week, plaintiffs in three actions pending in the Northern District of California as part of the multidistrict In Re Google Play Store Antitrust Litigation filed a motion claiming that Google entities have intentionally failed to preserve Google Chat communications among employees and, accordingly, that plaintiffs are entitled to sanctions under FRCP 37(e) Failure to Preserve Electronically Stored Information.
The plaintiffs seek “an adverse inference instruction based on Defendants[‘] … spoliation of evidence [under FRCP 37(e)(2)] or, in the alternative … sanctions to cure Plaintiffs’ prejudice [under FRCP 37(e)(1)].”
The three MDL actions are In Re Google Play Consumer Antitrust Litigation; State of Utah, et al. v. Google, LLC et al.; and Epic Games, Inc. v. Google LLC et al. The first action is a putative class action; the State of Utah action was brought by 36 states and the District of Columbia; the Epic Games action was brought by one plaintiff. The motion does not distinguish between the various plaintiffs. The defendants are five separate Google entities, which the plaintiffs collectively refer to as “Google.”
The plaintiffs’ memorandum states “Epic filed the first complaint in this MDL on August 13, 2020” and that “Google acknowledged that it was under an obligation to preserve evidence … by issuing an initial litigation hold notice [on September 11, 2020]. Notwithstanding that, The plaintiffs contend that Google failed to preserve the Google Chats, which it generally expunged daily, when it could have easily preserved them by changing the default settings on the app. The plaintiffs argue that this constitutes “willful” conduct entitling them to an “adverse inference instruction.”
Co-lead counsel for the proposed class are Bartlitt Beck and Kaplan Fox & Kilsheimer LLP alongside liason counsel Pritzker Levine LLP; counsel for Epic Games, Inc are Faegre Drinker Biddle & Reath LLP and Cravath, Swaine & Moore LLP.
