Today in Being Evil

Federal judge Judge James Donato has ruled that Google deliberately destroyed evidence in the Android antitrust litigation.

Let's see, Google:

• Set up its internal chats to automatically self-destruct after 24 hours.
• Refused to tell the court or the plaintiff that they had such a policy.
• Google employees systematically steered all discussions involving competitive issues to self-destructing chats.

So not the judge is promising sanctions.

I can't imagine why?

Google Chat histories handed over by the web giant in ongoing Android antitrust litigation reveal the biz has been systematically destroying evidence, according to those suing the big G.

"Google employees regularly and intentionally diverted to 'history off' Chats [sic] conversations about Google’s anticompetitive Revenue Share Agreements, Mobile Application Distribution Agreements, Google Play Billing payment policies and pricing, and a variety of other critical issues – specifically to ensure that those Chats would be destroyed," the plaintiffs – a mix of state government, corporate, and individuals – claim in a legal brief [PDF] filed on Monday.

Google's conduct, the plaintiffs argue, has hindered the Android antitrust case and requires a substantial penalty from the San Francisco federal courts.

Related claims surfaced in February, in the US Department of Justice's lawsuit challenging Google's search business.

Google Chat, the mega-biz's messaging app for mobile and desktop devices, has a history feature that can be turned on and off, in accordance with data retention preferences and policies. According to the Department of Justice, Google defaulted most chat sessions to history-off, when it should have kept history-on based due to the requirements of litigation.

Around that time, Judge James Donato, of the northern district of California – who is adjudicating the combined Android antitrust cases brought by the State of Utah and more than 30 other states, commonwealths, and districts; by Epic Games; by Match Group; and by netizens – issued an order directing Google to produce additional chats records. This was to test the proposition that a significant amount of case-relevant Google Chat messages categorized as off-the-record had been systematically deleted.

Google subsequently produced those records, which, the plaintiffs contend, demonstrate a systematic effort to conceal relevant communications. The chat records – 35 exhibits – were entered into the court record along with the plaintiffs' filing.

………

Just as we published this article, the judge in the case sanctioned Google.

In a finding of fact [PDF], Judge Donato concluded Google not only failed to adequately preserve records but also took steps to undermine the litigation.

“Consequently, on the record as a whole, the court concludes that Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation,” the judge wrote, noting that the record shows the deleted Chat evidence cannot be recovered through additional discovery.

There is evidence of specific people acting in direct defiance of the order.  You could issue fines, but I think that a few weeks in jail would have the effect of deterring more of the same.