Google committed “clear abuse of privilege” by implementing a policy that automatically deleted employee chat records, according to the judge overseeing a major Justice Department antitrust trial targeting the alleged digital advertising monopoly.
US District Judge Leonie Brinkema tore Google apart during a hearing to consider the DOJ’s motion for an “adverse” inference against the company for deleting data it was ordered to keep. If granted, it would allow the court to presume that Google acted deliberately to destroy evidence relevant to the case.
The motion centered on a policy outlined in a 2008 memo by Google chief legal officer Kent Walker, which advised employees to turn off their chat history by default — a practice referred to internally as “Vegas mode.”
As a result, employee messages were automatically deleted after 24 hours.
“Of course I don’t mind saying it [this] that’s not the way a responsible corporate entity should operate,” Brinkema said Tuesday, according to a transcript obtained by AdWeek. “A clear abuse of privilege.”
The judge’s remarks represent a major setback for Google, which faces the potential breakup of its digital ad tech empire that brought in more than $300 billion in revenue last year alone.
The non-jury adtech case begins in September. 9 — just weeks after U.S. District Judge Amit Mehta ruled that Google violated antitrust laws in a separate DOJ lawsuit targeting its Internet search business.
Brinkema, who will ultimately decide Google’s fate at trial, said Walker’s memo contains “incredible smoking guns.”
While she did not issue a formal ruling, the judge noted that she would draw “conclusions” as both sides call witnesses to testify.
“A lot of terrible evidence has likely been destroyed,” Brinkema added.
A Google spokesman declined to comment. In the past, the company has denied wrongdoing while claiming to have provided millions of records in response to discovery requests.
Google has repeatedly faced sharp criticism in court for its failure to retain employee chat records related to various antitrust investigations into its business. Experts have long highlighted the issue as a critical weak spot in her defense strategy, as The Post has reported.
While Mehta declined to sanction Google for misconduct in relation to the data destroyed during the internet search trial, he referred to the company’s handling of the evidence as “negligent”.
“The court’s decision not to sanction Google should not be construed as condoning Google’s failure to preserve evidence of the conversation,” Mehta said. “Any company that assigns its employees the responsibility to identify and preserve relevant evidence does so at its own peril.”
During the trial, Google CEO Sundar Pichai said he has since taken action to end the automatic deletion policy.
Elsewhere, US District Judge James Donato was similarly critical while overseeing “Fortnite” maker Epic Games’ antitrust case targeting the Google Play app store last December. Google eventually lost the case in another landmark decision.
During a hearing last December. 1, Donato said he had “never seen anything so extraordinary” after seeing “disturbing evidence” that Google’s auto-delete feature had deleted a number of key employee chat logs.
“This behavior is a frontal attack on the fair administration of justice. It reduces due process. It calls into question the fair resolution of legal disputes. It’s against our system,” Donato said at the time.
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