The judge overseeing the Department of Justice's antitrust trial over Google's alleged digital advertising monopoly said the company committed a “clear abuse of privilege” by implementing a policy to automatically delete employee chat records.
U.S. District Judge Leonie Brinkema sharply criticized Google during a hearing considering the Department of Justice's motion for an “adverse inference” for its deletion of records that had been ordered preserved, which would allow the court to presume that Google knowingly destroyed evidence relevant to the case.
The motion revolved around a policy outlined in a 2008 memo written by Google's chief legal officer, Kent Walker, who advised employees to turn off chat history by default, a practice known internally as “Vegas mode.”
As a result, employee messages were automatically deleted after 24 hours.
“Of course I [this] “This is not the way a responsible corporate entity should function,” Brinkema said Tuesday, according to the record. Retrieved from AdWeek“It's clearly an abuse of privilege.”
The judge's comments represent a major setback for Google, which faces the potential collapse of its digital advertising tech empire that brought in more than $300 billion in revenue last year alone.
The non-jury ad tech trial is set to begin on Sept. 9, just weeks after U.S. District Judge Amit Mehta ruled that Google violated antitrust laws in a separate Department of Justice lawsuit targeting its online search business.
Brinkema, whose case will ultimately decide Google's fate at trial, said Walker's memo contained “incredibly conclusive evidence.”
The judge did not issue a formal ruling but said he would draw “inferences” as both sides called witnesses to testify.
“A huge amount of evidence was likely destroyed,” Brinkema added.
A Google spokesman declined to comment. The company has previously denied any wrongdoing and said it has provided millions of records in response to discovery requests.
Google has repeatedly faced harsh criticism in court for failing to preserve employee chat records related to various antitrust investigations into its business, and as The Washington Post reports, experts have long pointed to the issue as a major weakness in the company's defense strategy.
Mehta declined to punish Google for any wrongdoing related to the destruction of records during the online search trial, but called the company's handling of evidence “negligent.”
“The court's decision not to impose sanctions on Google should not be understood as an acceptance of Google's failure to preserve evidence of the chats,” Mehta said. “Companies that hold employees responsible for identifying and preserving relevant evidence do so at their own peril.”
During the trial, Google CEO Sundar Pichai said the company had taken steps to end the automatic deletion policy.
Meanwhile, U.S. District Judge James Donato was similarly critical when he heard an antitrust lawsuit against the Google Play app store by “Fortnite” developer Epic Games in December. Google ultimately lost the case in another landmark ruling.
At a hearing on December 1st of last year, Donato said he had “never seen anything worse” after seeing “shocking evidence” that Google's auto-delete feature had deleted thousands of chat logs of key employees.
“This action is a frontal attack on the fair administration of justice. It undermines due process. It calls into question the fair resolution of legal disputes. It is antithetical to our system,” Donato said at the time.
