Google’s excuses for its “ongoing destruction” of daily chats as evidence in Utah’s multistate antitrust lawsuit against Google’s app store (see 2204010037) don't “remotely pass muster,” said the states’ reply Thursday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco in support of their motion for “significant sanctions” against the company. Google’s argument that its efforts were “reasonable” is “irreconcilable with the systematic and avoidable destruction” of relevant chats, plus “its continued failure to explain why it did not suspend automatic deletion, including after being expressly put on notice,” they said. Google’s argument that it lacked the “requisite intent” ignores that Google still, to this day, continues the wholesale destruction of chats, that it withheld information about the destruction of chats for months, and that its custodians “intentionally divert sensitive conversations” to chat to avoid discovery, they said.
Judges in the 9th U.S. Circuit Court of Appeals “are getting tougher on lawyers who represent serial plaintiffs by reducing their fees and threatening sanctions,” said Seyfarth Shaw in an analysis Thursday. In an Oct. 24 opinion in Shayler v. 1310 PCH , the 9th Circuit panel affirmed the district court’s order awarding a reduced attorney’s fees and costs following the district court’s grant of summary judgment in favor of the plaintiff on a claim under the Americans with Disabilities Act. The plaintiff, a serial ADA litigant, moved for an award of more than $34,000 in attorney’s fees and costs, said the opinion. But the district court “reduced this award significantly,” citing factors “such as the routine nature of the work performed by the plaintiff’s attorneys,” it said. This decision “should be useful for businesses fighting fee petitions filed by serial plaintiffs in routine cases,” said Seyfarth Shaw.
Text messages, and other forms of electronic messaging, “are increasingly the subject of significant court rulings, creating either huge risk or opportunity for serious sanctions (depending on which end of the issue the client finds itself),” said the Bryan Cave law firm in an analysis Friday. “Even if sanctions are not imposed or do not affect a merits-based determination of the claims, a party’s failure properly to account for text messages creates a significant distraction from the merits and costly collateral motion practice.” Sanctions decisions also are beginning to emerge “relating to less commonly known digital messaging applications,” said Bryan Cave. It cited a case in U.S. District Court for Arizona, FTC v. Noland, in which the senior management of a company under FTC investigation, Success by Media, began using “ephemeral” communication apps in messages designed to disappear quickly after receipt. Use of the apps “continued after an appointed receiver demanded that personnel preserve communications and even after a restraining order,” said the law firm. Former Success by Media executives also deleted the apps from their phones “the day before the phones were to be imaged to capture data,” it said: “The court imposed an adverse inference instruction as a sanction.” Legal scholars say adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to that party.
Google “took reasonable steps” to “preserve” all relevant user chat information in Utah’s multistate antitrust lawsuit against Google’s app store, the platform argued Thursday in 3:21-cv-05227 before the U.S. District Court for the Northern District of California (see 2204010037). Google asked the court to deny the states’ request for a sanction in the form of an adverse inference instruction. The states have failed to demonstrate they “suffered any prejudice” and failed to show Google intended to “deprive” the plaintiffs of data and information. Google argued it “fully complied” with discovery obligations, including the preservation of relevant chats and the issuing of "litigation hold notices regarding chat preservation and automatically preserving certain categories of chats.”
Experian denies it violated the Fair Credit Reporting Act, said the credit reporting agency in an answer Wednesday to an Oct. 7 complaint (docket 4:22-cv-00637) in U.S. District Court in Kansas City, Missouri. Helen Pollak, an O’Fallon, Missouri, consumer, sued Verizon and Experian for FCRA violations on grounds that Experian refuses to remove a “fraudulent” Verizon account from her credit profile and Verizon “has refused to communicate about the account” and has provided no “avenue” to correct the record. Most of Pollak's allegations "relate entirely to another defendant," said Experian in reference to Verizon, "and thus Experian is without knowledge or information sufficient to form a belief as to the truth of those allegations." Verizon has yet to answer the complaint. Pollak's claim for punitive damages "is barred to the extent such sanctions are imposed without requiring the burden of proof to be beyond a reasonable doubt," said Experian. The sanctions "do not accord with the protections" of the Eighth Amendment prohibiting excessive fines and the Fifth and 14th Amendments against procedural due process and equal protection violations, it said. Pollak's complaint said she “finds it profoundly unfair that Verizon can allegedly ‘verify’ false information, and Experian continues to let them do it.” Either Verizon “conducted no real investigation” of Pollak’s disputes, or the probes “were so lacking as to allow fraudulent information known to be false and highly damaging” to remain in Pollak’s credit file, it said. “Verizon’s failures in this regard are exacerbated by the sheer number of times it was contacted about this particular account.” The suit seeks statutory and punitive damages for violations of the FCRA.
Family Entertainment Group (FEG), which operates physical game venues nationally under the brand name In the Game, also runs websites that “contain access barriers that prevent free and full use by blind and visually disabled individuals using keyboards and available screen reader software,” in violation of the Americans With Disabilities Act, alleged a complaint Friday (docket 9:22-cv-81651) in U.S. District Court for Southern Florida in West Palm Beach. “These barriers are pervasive,” said the complaint. Plaintiff Nelson Fernandez of Palm Beach County suffers from optic neuritis and is visually disabled, with complete blindness in one eye and very limited vision in the other, it said. He attempted to locate an accessibility notice on one of the FEG websites “that would direct him to a webpage with contact information for disabled individuals,” but none existed, it said. Fernandez, as well as others who are blind and with visual disabilities, “will suffer continuous and ongoing harm” from FEG’s “intentional acts, omissions, policies, and practices” unless “properly enjoined” by the court, it said. The suit seeks a number of sanctions and remedies by a “date certain,” including an order requiring FEG “to provide ongoing support for web accessibility by implementing a website accessibility coordinator, a website application accessibility policy, and providing for website accessibility feedback to ensure compliance” with the ADA. FEG didn’t respond to queries seeking comment.
Google has “irretrievably” destroyed “an unknown but undoubtedly significant number of communications by its employees about relevant business conversations, including on topics at the core of this litigation,” said a motion for sanctions Thursday in U.S. District Court in San Francisco (docket 3:21-cv-05227) in the multistate lawsuit alleging the Google Play Store is anticompetitive. Google permanently deletes Google Chats content every 24 hours -- “and did so even after this litigation commenced,” after plaintiffs “repeatedly inquired about why those chats were missing” from Google’s discovery materials, said the motion. “Google’s failure to comply with its preservation obligations has prejudiced” the plaintiffs and is “sanctionable” under federal rules, it said. The motion asks the court to instruct the jury “that it may or must presume” that the destroyed information “was unfavorable to Google. “Any suggestion that we haven’t preserved and produced responsive documents in this lawsuit is simply wrong," emailed a Google spokesperson Monday. "We’re looking forward to making our case in court and we’re confident that we'll prevail in this unnecessary discovery dispute." Three dozen states and the District of Columbia sued Google in July 2021, alleging the company has taken steps to close the Android ecosystem from competition and “insert itself as the middleman between app developers and consumers.”