Epic Games files documents in antitrust case showing Googlers avoiding litigation
In a new filing in Epic Games’ antitrust case against Google, plaintiffs’ attorneys have submitted a number of exhibits that attempt to demonstrate the tendency of Google employees to disable chat history during internal discussions. Epic believes this behavior is aimed at destroying sensitive communications related to its lawsuit, but it’s not alone in making this claim. The issue of Google’s deletion of chat history was also recently cited by the US Department of Justice in its own antitrust investigation, where it alleged that Google had for years “systematically destroyed” an entire category of communication. .
This makes the new discovery of communications where Google employees often ask others to turn off chat all the more interesting.
In one particularly notable instance, Google CEO Sundar Pichai requested that chat history be disabled, then tried unsuccessfully to delete the previous message. However, it’s not clear from the exposition shared with the court that the topic of the conversation would have had any bearing on Epic’s antitrust case against the tech giant.
However, in other discussions, Google employees were found to ask others to turn off chat history when discussing more potentially relevant topics, such as Revenue Sharing Agreement (RSA) contracts. ), mobile app distribution deals, and a topic called “Project Runway,” which was the internal codename for a project that involved changing Google Play’s commission rate in response to developer complaints and the threat of regulation.
In another example, Google’s Head of Platform and Ecosystem Strategy for Android, Margaret Lam, remarks “I talk about RSA-related stuff all day and I don’t have a history for all my talk. :)”, after another employee informed her that any chat on RSA must have chat history enabled “by policy”.
“We cannot remove it. I’m also on multiple legal hold,” the employee advised her, to which she replied, “Okay, maybe I’ll take you out of this convo,” followed by a laughing face emoji. When asked why she was going against the company’s training on the subject, Lam said “it just causes more touchpoints on my end,” then added that she would send a ping to others directly – apparently a choice intended to circumvent threads with history, rather than allowing the conversation to be documented.
In other conversations, Lam is again seen asking employees to disable history, as shown in the exhibits.
In a separate conversation from 2021, a Google employee asks another if they can discuss Project Runway and was reminded to “communicate with caution” because anything said would be subject to discovery if there were any regulatory or legal proceedings in the future. They were also reminded that group chat history cannot be turned off, “unlike 1:1 threads where you can turn off the history and they are gone in 24 hours.”
Another couple of conversations feature Google VP Tian Lim (who has since changed jobs to join Roblox) asking to disable chat history. But the same employee had testified, on January 12, 2023, that he had made “a good faith effort to comply with the obligations to preserve chat communications which were subject to the legal suspension”.
Of course, it’s not clear again from the filings that Lim’s later conversations would have been relevant to Epic’s case, but the purpose of these exhibits is to raise the question of why disabling the chat was such a common practice.
Epic originally filed a lawsuit against Google for alleged antitrust violations in August 2020, shortly after forcing Google to remove its mobile game Fortnite from the Play Store by intentionally violating Google Play’s policies regarding in-app purchases. (The company had done the same with Apple, but both sides were unhappy with the outcome of that case, which is now in the hands of an appeals court.) Like most cats submitted in This new discovery dates from the following year, it would then have been clear to Google employees that a litigation hold of their conversations was necessary.
That said, through the 35 new exhibits featuring various Google employees discussing when or whether to turn off chat history, or instructing others to do so, it’s not clear that they were actively planning to discuss Epic Games or its antitrust allegations, in particular. Instead, it appears that Google employees had professional conversations that may or may not have been relevant to the case – which will be difficult to determine at this stage, as many chats have been moved to confidential locations.
What the recordings attempt to show is that many at Google used to turn off chat history or move conversations to places where they couldn’t be tracked. However, it will be up to a judge to determine whether or not Google should be sanctioned for this behavior. But the judge’s decision could then be referenced in the DoJ’s case against Google, which makes similar claims regarding Google’s alleged destruction of evidence.
Google has been asked for comment.