Plaintiffs Seek ‘Adverse Inference’ Jury Instruction vs. Google for Destroying Evidence
The plaintiffs in the four consolidated cases that comprise the multidistrict litigation challenging Google’s alleged monopolization of the Google Play Store seek “a relatively modest” non-monetary remedy in the form of an “adverse inference instruction” to the jury to sanction Google for failing to preserve evidentiary messages on its internal chat system, said their proposal Thursday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco.
The plaintiffs believe the adverse inference instruction “is both an appropriate remedy as a matter of law and proportional to the conduct at issue,” they said. U.S. District Judge James Donato declared nearly six months ago that "sanctions are warranted" against Google for its systematic chat destruction before and during the litigation (see 2303290001). The plaintiffs in the MDL include 38 states and the District of Columbia, plus Epic Games, the Match Group and a group of consumers, all alleging Google monopolized Android app distribution and availability through Google Play.
Though “no one can speak to” the actual chats that Google intentionally deleted, “the record contains example after example of Google employees beginning to discuss topics highly relevant to this litigation,” said the plaintiffs’ proposal. The record shows Google employees “then quickly agreeing” to turn their chat system to the “history off” setting “to trigger automatic deletion and shield further discussion from discovery, “necessarily ending the record available” to the plaintiffs, it said.
The “interrupted” chats “are the tip of the iceberg” of what may have been destroyed, said the plaintiffs. They're “powerful evidence of key information” being “deliberately and permanently destroyed,” and thus hidden from the plaintiffs and the court, they said. “Any reasonable inference” would conclude that the information destroyed was that which Google “thought would be harmful to its legal position if disclosed,” they said.
Had all the relevant chats been preserved and produced, the plaintiffs believe “they would have had additional evidence, which in all likelihood would include clearer and more candid communications, to prove the anticompetitive purpose of the contracts Google signed” with OEMs and app developers, said the plaintiffs. The plaintiffs believe, for example, the deleted chats “would have shown that Google’s revenue share agreements with OEMs were meant to preserve Google Play’s app distribution dominance,” they said.
The plaintiffs also believe Google employees “discussed the true, anticompetitive motivations behind Google’s post-litigation policy changes to Google Play,” plus its “top-secret agreements with Apple,” said the plaintiffs. Google employees “were trained to speak freely about these topics and others without the risk of disclosure in this litigation by simply keeping history off” in chats, “which they did in droves,” they said.
The record “easily justifies” an adverse inference jury instruction against Google at trial, said the plaintiffs. Google “intentionally engaged in a scheme targeted specifically at concealing from discovery its most sensitive -- and most damning -- communications, including about the topics at the heart of this litigation,” they said. Google’s assertion the plaintiffs obtained most or all relevant communications they demanded during discovery is “unfounded,” because Google itself doesn’t know “what information it destroyed,” they said.
The evidence also “squarely contradicts Google’s assertion,” unequivocally showing Google employees “deliberately took their most sensitive discussions, including those subject to litigation holds,” from preserved formats to their history off settings, triggering their automatic deletion, said the plaintiffs. Google did in fact delete hundreds of thousands -- perhaps millions -- of those chats “rather than produce them in litigation,” they said.