Evidentiary Hearing Looms This Week in States’ Antitrust Case vs. Google

Thursday will be an important day in the antitrust lawsuit brought by 38 states and D.C. to break Google’s alleged monopolies in the Android app and in-app purchasing ecosystems. That’s when U.S. District Judge James Donato for Northern California in San Francisco convenes an evidentiary hearing into the states’ allegations that Google deleted Google Chat conversations and other instant messaging chats crucial to the states' case that Google's anticompetitive behavior harms consumers and app developers (see 2210170005).

The states want Donato to impose sanctions on Google for its alleged misbehavior. Google denies the allegations and asserts it met all its discovery obligations.

Google is calling two witnesses to testify on its behalf, according to a joint proposed witness list filed Thursday (docket 3:21-cv-05227). Genaro Lopez, Google’s information governance lead, will testify about the use and operation of the company’s internal electronic chat system, including communication tools available to Google employees, plus “applicable and potential alternative retention policies,” according to the list.

Andrew Rope, Google scaled operations manager, will discuss how the company implements its “legal hold” policies to protect documents that will be needed during discovery, including details of document collection and production in the current case, said the list. Most chats at Google “in the ordinary course of business” default to a setting called “history off,” and are automatically deleted after 24 hours, said Rope’s Nov. 3 declaration. One-on-one conversations whose settings are manually changed to “history on” are kept for 30 days, and those involving group chats are kept for 18 months, said Rope.

The states’ star witness, Ronald Schnell, “is an expert who will testify about the evolution of instant messaging applications, including Google Chat, for business enterprises,” said the list. He also will discuss “the ways in which Google could have easily preserved Google Chats for all litigation hold custodians,” it said.

Three witnesses are on the list to testify about the company’s use of Google Chat, and the efforts to preserve conversations that were needed during discovery, though only two of the three will appear at the hearing in person, said the list. They're Jamie Rosenberg, Google vice president-digital content; Lawrence Koh, former Google Play global head-games business development, now vice president-general manager, EA Sports, at Electronic Arts; and Tian Lim, Google vice president-engineering, user experience and product.

The judge expects the evidentiary hearing to run up to three hours, said his Nov. 16 order. A joint status conference on the underlying lawsuit will immediately precede the hearing.