Plaintiffs Urge Stiff Sanctions on Google for Deleting Evidentiary Chats

The various plaintiffs in the Google Play Store antitrust litigation, including 38 states and D.C., want U.S. District Judge James Donato for Northern California to impose stiff but “appropriate” sanctions on Google if he finds the company flouted its obligations and destroyed evidence, they told the judge in a brief Tuesday (docket 3:21-cv-05227) responding to the judge’s questions about evidence preservation in the case. The plaintiffs allege Google systematically deleted internal Google Chat conversations and other instant messaging chats crucial to their arguments that Google's anticompetitive behavior harms consumers and app developers (see 2301090001). They further allege the deletions continued even well after Google knew the chats would be needed for evidence in discovery and at trial. They propose that Donato order preliminary and final jury instructions on Google’s “spoliation” and that he preclude Google from arguing the plaintiffs lack evidence on certain topics, they said. Donato’s jury instructions should inform jurors they “should presume that Chat messages Google destroyed would have been unfavorable to Google in this litigation,” they said. Google countered in its own brief Tuesday that any sanctions for destroying the chats “must be no greater than necessary to cure any prejudice” to the plaintiffs arising from the loss of those chats. “By contrast, remedies that would effectively foreclose Google from presenting a defense or that would be tantamount to an adverse inference or terminating sanction are unwarranted” under court rules and “inconsistent with due process,” said Google.