In a new filing in Epic Games’ antitrust case against Google, lawyers for the plaintiffs have submitted a number of exhibits that attempt to demonstrate Google employees’ tendency to switch off chat history on internal discussions. Epic believes this behavior is meant to destroy sensitive communications related to its lawsuit, but it’s not the only one making this claim. The issue with Google’s deletion of chat history was also recently cited by the U.S. Department of Justice in its own antitrust investigation, where it alleged Google had for years “routinely destroyed” an entire category of communication.
That makes the new discovery of communications where Google employees often instructed others to turn off chat all the more interesting. [Update, 3/28/23: a federal judge has now ruled that Google’s failure to preserve messages requires sanctions. The judge is requiring Google to pay attorney fees and is debating what other non-monetary sanctions will be needed.]
Original story continues below
In one particularly notable instance, Google CEO Sundar Pichai asked for the chat history to be turned off and then tried to unsuccessfully delete the preceding message. It’s not clear, however, from the exhibit shared with the court, that the topic of the conversation would have had bearing on Epic’s antitrust case against the tech giant.
However, in other chats, Google employees were found to be asking others to switch off chat history when discussing more potentially relevant matters, like Revenue Share Agreement (RSA) contracts, Mobile App Distribution Agreements and a topic called “Project Runway,” which was the internal codename for a project that involved changing the Google Play commission rate in response to developer complaints and the threat of regulation.
In another example, Google’s Head of Platforms & Ecosystems Strategy for Android, Margaret Lam, remarks “I talk about RSA related things all day and I don’t have have history on for all my chats :),” after another employee had informed her that any conversation about RSA needed to have chat history turned on “per policy.”
“We cannot delete it. I am also on multiple legal hold,” the employee advised her, to which she responded, “Ok maybe I take you off this convo,” followed by a laughing face emoji. When pressed as to why she was going against the company training on the matter, Lam said “it’s just causing more touchpoints on my end,” then added she would ping others directly — seemingly a choice meant to route around the chats with history, rather than allowing the conversation to be documented.
In other conversations, Lam is spotted again asking employees to turn off history, the exhibits show.
In a separate 2021 conversation, one Google employee asks another if they can discuss Project Runway and was reminded to “communicate with care” because everything said would be subject to discovery if there were any regulatory or legal proceedings in the future.” They were also reminded that group chats can’t have history turned off, “unlike 1:1 chat threads where you can turn off history and they disappear in 24 hours.”
Another couple of conversations features Google VP Tian Lim (who has since changed jobs to join Roblox) asking to turn chat history off. But the same employee had testified on January 12, 2023, that he had made “a good-faith effort to comply with obligations to preserve chat communications that were subject to the legal hold.”
Of course, it’s again not clear from the filings that Lim’s subsequent conversations would have been relevant to Epic’s case, but the point of these exhibits is to raise the question as to why switching off chat was such a common practice.
Epic originally filed suit against Google over the alleged antitrust violations in August 2020, shortly after it forced Google to remove its Fortnite mobile game from the Play Store by intentionally violating Google Play policies around in-app purchases. (The company had done the same thing with Apple, but both parties were unhappy with the outcome of that case, which is now in the hands of an appeals court.) As most of the chats submitted in this new discovery are from the following year, it would have been clear to Google employees by then that a litigation hold on their conversations was necessary.
That said, across the 35 new exhibits featuring various Google employees discussing when or if to turn off chat history, or asking others to do so, it’s not clear that they were actively planning to discuss Epic Games or its antitrust claims, specifically. Instead, it appears the Google employees were having business-related conversations that may or not have ultimately been relevant to the case — something it will be hard at this point to determine, as many chats had been moved to off-the-record locations.
What the records attempt to show is that many at Google had a habit of switching off chat history or shifting conversations to places where they couldn’t be tracked. However, it will be up to a judge to determine whether or not Google should be sanctioned for this behavior. But the judge’s determination could then be referenced in the DoJ case against Google, which is making similar claims about Google’s alleged destruction of evidence.
Google responded with the following comment:
“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. We’ll continue to show the court how choice, security, and openness are built into Android and Google Play.”
updated, 3/28/23 9:40 am et with Google comment