When Absence of Evidence Becomes Evidence of Absence

Google, anti-trust and the future of how our phones work

If you’re anything like me, your iPhone is never too far away. If you’re also like me, your iPhone is constantly searching for answers. It’s Christmas, and my family has a tradition of visiting a street where homeowners dress their homes with Christmas lights. I searched up “how much does a string of lights cost?” “How much electricity does it take to light up a tree?”

Chances are your browser is preloaded. By default, Apple preloads the Safari browser. Also by default, Safari uses a Google search engine. Google pays Apple over 30% of ad revenue from the search results for this privilege. On the Android side, if you preload any Google app on the phone you must take a bundle of Google apps.

At first glance such design choices might be innocuous enough, however in January the United States and eight plaintiff states sued Google for monopolizing multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act. The complaint alleged that Google monopolizes key digital advertising technologies, collectively referred to as the “ad tech stack,” that website publishers depend on to sell ads and that advertisers rely on to buy ads and reach potential customers.

Google paying Apple, or so the DOJ has argued, qualifies because the payments exclude other competitors who cannot afford to pay Apple.

The DOJ’s anti-trust lawsuit should not be confused with the DOJ’s lawsuit filed against Google in 2021 (“MDL”)¹, or with Epic’s lawsuit filed in 2020.

Regarding the former, at the tail end of the Trump administration the U.S. Department of Justice sued Google with 11 other states. In the months after that, 38 more states joined that lawsuit. The Department of Justice and the states claimed that Google had unlawfully monopolized the market for general search. In American antitrust law, it is not unlawful to have a monopoly if gained through legitimate means, but it is unlawful to hold on to that monopoly by trying to exclude competitors.

Both were related to fights over in-app purchase fees, claiming the Android operating system’s Google Play store constituted an unlawful monopoly. Both the DOJ and Epic wanted Google to make using third-party app stores, sideloaded apps, and non-Google payment processors easier — while Google said its demands would damage Android’s ability to offer a secure user experience and compete with Apple’s iOS.

On December 11th, a jury ruled in Epic’s favor, finding that Google has turned its Google Play app store and Google Play Billing service into an illegal monopoly, answering yes to every question in front of them about Google’s monopoly power, anticompetitive behavior, and the illegal ties between the different parts of its business. Likewise, the DOJ settled their lawsuit in September, and we’ve just now learned what Google agreed to give up as a result: $700 million and a handful of minor concessions in the way that Google runs its store in the United States.

The biggest change: Google will need to let developers steer consumers away from the Google Play Store for several years, if this settlement is approved.

But before we forget about Google’s settled lawsuit, I want to direct my readers’ attention to an eDiscovery issue that caught my attention that has relevance to the still ongoing January 2023 litigation.

During MDL discovery, which settled, DOJ found that chats produced by Google were insufficient. In response to a court order, Google "provided evidence of highly spotty practices in response to the litigation hold notices." For example, the trial court quoted one chat in which "an employee said he or she was 'on legal hold' but that they preferred to keep chat history off."

At another point, Google’s CEO Sundar Pichai attempted to delete his messages. Then, when he failed to do so, wrote “[A]lso can we change the setting of this group to history off.” When asked later under oath about the attempted deletion, he answered, “I don’t recall.”

These tactics were also brought up by Epic in their anti-trust litigation with Google, where they alleged (albeit, less convincingly) that crucial internal communications were not retained by Google.

The trial court concluded that Google provided false information about the auto-deletion practices it uses for internal chats. The trial court’s language included chestnuts like “a frontal assault on the fair administration of justice” and “intentionality manifested at every level.” Google was committed to not becoming the next Enron, with their messages living on for decades and subject to the scrutiny of the government, the public, universities, and professionals. However, the judge left to the jury to infer whether Google destroyed evidence as opposed to issuing a mandatory inference instruction. (Note: readers can read the final jury instruction here.)²

If this reference doesn’t make sense, recall that Enron’s corporate communications were uniquely preserved at humongous scale in nearly native format. They are still being scrutinized and scrutinized, especially as AI and language models have shifted to the forefront of the national conversation.

The destruction is also interesting because fact discovery in the remaining case has yet to settle. Originally, it was set to close on September 8, 2023—more than nine months before the close of discovery in the settled multidistrict litigation, which was pending in the Southern District of New York since September 2021. In other words, the ‘ad stack’ litigation was on a lightning-speed turnaround for such a complex case. This speed also outpaced the District of Columbia’s schedule in the Google search litigation, which was pending since October 2020 before Google lost the trial in September 2023

This is because the Alexandria Division of the United States District Court for the Eastern District of Virginia (“EDVA”), also known as the “Rocket Docket.” Speed is baked into the Court’s rules, deadlines, and procedures.  For example, when denying Google’s motion to transfer (discussed below), the Court proved its penchant for urgency by ordering the parties to file a proposed discovery schedule within 14 days of that order.³

Needless to say, Google is also aiming to lose its ‘ad stack’ litigation because of its insufficient message retention policies.

Taken together, final few points deserve special attention.

• The court recognized that it was holding Google to a higher standard. The court’s findings included the conclusion that Google is a “really big company” accustomed to litigation and electronic evidence holds. The Advisory Committee Notes to the 2015 amendments to Rule 37(e) state that the court should take into account a party’s “sophistication” regarding litigation in evaluating that party’s preservation efforts.

• Google actually did a good job instructing its employees on the litigation hold but made the mistake of relying on the custodians without following up to make sure they were complying.

• Litigation counsel may have believed it was reasonable to rely on a sophisticated tech company like Google to vet the sufficiency of preservation methods, as evidenced by counsel’s responses to the DOJ’s ESI questionnaire; but there is always the problem of ‘you don’t know what you don’t know.’ Counsel did not have a good grasp of Google’s many electronic messaging options, nor did they understand what Google needed to do to make sure all was well.

1. The litigation is sometimes referred to as the “MDL” litigation because under 28 U.S.C. § 1407 Google centralized the antitrust litigation in the Northern District of California. The litigation originally consisted of 19 separate actions pending in 16 districts, as listed on Schedule A.

2. The decision not to issue the mandatory inference instruction was itself a huge victory for Google’s lawyers. Cf., for example, Drips Holdings, LLC v. Teledrip LLC: After litigation was reasonably foreseeable, Defendants changed the retention setting of their Slack archive from unlimited to seven days and deleted their previously exported Slack data. As a result, the Court increased the Magistrate’s recommended sanction from a permissive adverse-inference instruction to a mandatory adverse-inference instruction sanction.

3. When the Court denied Google’s motion to transfer, ECF No. 60, the Court told Plaintiffs in no uncertain terms that, because they chose this forum, they need to “be mindful of how we operate here” and explained “this is a problem that, frankly, the Government’s going to have because you chose to be here, and I’m not joking when I say you need to have your running shoes on.” The Court further admonished the parties that “everything in life is finite. We have a finite lifespan, we have all sorts of limits, and I think the same thing applies to litigation.”