Google employees and executives have tried to hide potentially damaging communications from investigators by using methods such as automatically deleting chats and marking emails as “confidential” as part of their normal routine, but the sneaky moves could backfire for the internet giant as the second antitrust trial against the company heats up.
The Verge Reports The Justice Department charged that Google employees liberally labeled emails as “privileged and confidential” and engaged in “official” chat messages despite being instructed to preserve the communications for investigators.The revelations came during Google's second antitrust trial, heard in a Virginia court in recent weeks.
According to Justice Department lawyers, this strategy could have serious consequences for Google if the judge finds that the company knowingly destroyed evidence that was damaging to the case. In a worst-case scenario, the judge could draw an adverse inference, assuming that Google's missing documents were damaging to the company's defense.
Evidence presented in court showed that Google employees frequently used the label “confidential” in email discussions, sometimes involving members of Google's legal team. Former Google sell-side advertising executive Chris LaSala testified that employees continued to use Google's chat feature (which has message history turned off by default) to conduct substantive work-related conversations even after the litigation was put on hold.
LaSala acknowledged that he instructed employees to start chat threads with history turned off or to discuss them “privately” when dealing with sensitive topics, which he argued was common practice among employees, but while he acknowledged he made mistakes in complying with the litigation hold, he maintained that it was unintentional.
Other former Google executives, including Brad Bender and Rahul Srinivasan, were also asked about their use of “confidential” labels in emails and chats. Bender described the chat conversations as more casual, “like bumping into someone in the hallway and saying, 'Let's chat,'” and Srinivasan couldn't recall specific legal advice he sought in emails marked as confidential.
The Justice Department argued that Google employees were well aware that their written communications could be used against the company, citing the company's “careful communications” legal training for employees. In one example, a Google executive reminded colleagues to be careful with their language, especially when describing something as “evasive,” and to assume that any documents or emails written would likely be seen by regulators.
Many of the documents shown by the Justice Department showed that Google frequently discussed business decisions in writing, but in some cases the company appeared to purposely limit documentation given the sensitivity of the subject matter.
Google spokesman Peter Schottenfels said the company takes its obligation to preserve and produce relevant documents seriously and has produced millions of documents in response to inquiries and lawsuits, including chat messages and documents not covered by legal privilege.
The judge declined to draw adverse inference in Google's first antitrust case against the Department of Justice over its search business, but warned that companies that hold employees responsible for identifying and preserving relevant evidence do so at their own peril. Google avoided sanctions in that case, but the judge warned that it may not be so lucky in the next one.
Read more on The Verge here.
