State and Private Plaintiffs in Google Antitrust Case Argue Deleted Evidence Needs Clarifying Jury Instruction

The plaintiffs taking on Google over its alleged domination of Android-based app distribution, including more than two dozen state attorneys general, consumers, and Epic Games, have moved for sanctions against the tech titan for its purported failure to preserve internal chat messages for use as evidence. The joint motion filed late last week asserts that the deleted communications are irretrievable, “undoubtedly significant,” and prejudicial to the plaintiffs’ cases.

The multidistrict litigation proceeding against Google has been underway since August 2020 when Epic Games, developer of the popular game Fortnite, sued Google over its Play Store practices and separately Apple in a parallel case alleging monopolization of the iOS app distribution market. The latter case ended in a bench trial and a ruling largely for Apple. The parties have since cross-appealed and the Ninth Circuit will hear argument soon, after the October 21 hearing was postponed due to a panel member’s inability to attend.

The attorneys general’s case against Google, led by the Utah attorney general and co-lead attorneys general from New York, Tennessee, and North Carolina, has been proceeding since the defendant filed an amended answer in March 2022 which alleges seven Section 1 and 2 Sherman Act causes of action in addition to state law claims.

In last week’s redacted filing the plaintiffs claim that Google had a duty to preserve the communications of its employees, but failed to. The motion explains that the plaintiffs noticed a “glaring absence” of internal messaging communications and first raised the issue to Google in April 2021.

The eventual response was that Google permanently deletes Google Chats every 24 hours, and did so even after the litigation began. According to the motion, Google blames the lapse on an enterprise default setting for Google Chats that is set to “history off.” “Any administrator of Google Chats—an application developed by Google—could have changed this default setting at any point for all custodians,” the plaintiffs chided.

The company’s failure to take reasonable steps to preserve evidence has disadvantaged the plaintiffs’ cases, the motion says. Citing the action of another Northern District of California court in a similar scenario, the plaintiffs ask for jury instructions that jurors “may or must presume the information was unfavorable” to Google.

The consumer plaintiffs are represented by co-lead counsel Barlitt Beck LLP and Kaplan Fox & Kilsheimer LLP, Epic Games by Cravath, Swaine & Moore LLP and Faegre Drinker Biddle & Reath LLP, and the state attorneys general by their respective offices.