Epic Games produces documents in antitrust case showing Googlers evade lawsuit

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In a new filing in Epic Games’ antitrust case against Google, plaintiffs’ lawyers have submitted a number of pieces of evidence that attempt to demonstrate a tendency for Google employees to disable chat history in internal discussions. Epic believes this behavior is intended to destroy sensitive communications related to its lawsuit, but it’s not alone in making this claim. The problem with Google deleting chat history was also recently cited by the US Department of Justice in its own antitrust investigation, where it alleged that Google “routinely destroyed” an entire category of communications for years.

That makes the new discovery of communication where Google employees often told others to turn off chat all the more interesting.

In one particularly notable case, Sundar Pichai, CEO of Google, asked to disable the chat history and then unsuccessfully tried to delete the previous message. However, it is not clear from the exhibit shared with the court that the subject of the conversation would have been related to Epic’s antitrust case against the tech giant.

However, in other chats, Google employees appeared to ask others to turn off chat history when discussing more potentially relevant things, such as RSA (Revenue Share Agreement) contracts, mobile app distribution agreements, and a topic called “Project Runway.” the internal codename for a project where Google Play’s commission rate was changed in response to developer complaints and the threat of regulation.

In another example, Margaret Lam, Google’s Head of Platforms & Ecosystems Strategy for Android, notes, “I talk about RSA-related stuff all day and I don’t have history on all my chats :)”, after a another employee had informed her that any conversation about RSA had to have chat history enabled “per policy”.

“We can’t remove it. I also have multiple legal holds,” the employee advised her, to which she replied, “Okay, maybe I’ll take you off this conversation,” followed by a laughing emoji. When asked why she went against the company’s training, Lam said, “It just adds more touchpoints on my end,” adding that she would ping others directly — seemingly a choice meant to make the chats with history to get around, instead of having the conversation documented.

In other conversations, Lam is again spotted asking employees to turn off history, the exhibits show.

In a separate conversation in 2021, a Google employee asks another if they can discuss Project Runway and was reminded to “communicate carefully” because anything said could be discovered if regulatory or legal proceedings ensue. They were also reminded that group chat history cannot be disabled, “unlike 1:1 chat threads where you can disable history and they will disappear in 24 hours.”

In a few more conversations, Google VP Tian Lim (who has since changed jobs to join Roblox) is asked to turn off chat history. But the same employee had testified on January 12, 2023 that he had “made a good faith effort to comply with obligations to preserve chat communications that were subject to legal hold.”

Of course, again, it’s not clear from the documents that Lim’s subsequent conversations would have been relevant to Epic’s case, but the point of these pieces is to raise the question of why disabling chat was so common.

Epic originally filed a lawsuit against Google in August 2020 for alleged antitrust violations, shortly after it forced Google to remove its Fortnite mobile game from the Play Store by deliberately violating Google Play’s policies around 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.) Since most of the chats filed in this new discovery were from the following year be, it would have been clear to Google employees by then that a lawsuit to hold their conversations was necessary.

That said, in the 35 new exposés featuring various Google employees discussing when and whether to disable chat history, or asking others to do so, it’s not clear they actively intended to bring Epic Games or its antitrust claims into the game. particular to discuss. Instead, it appears that the Google employees were having business conversations that may or may not ultimately have been relevant to the case — something that will be difficult to determine at this point, as many chats had been moved to off-the-record locations .

What the records try to show is that many at Google were in the habit of turning off chat history or moving conversations to places where they couldn’t be tracked. However, it is up to a judge to determine whether or not Google should be penalized for this conduct. But the judge’s determination could then be used in the DoJ case against Google, which makes similar claims about Google’s alleged destruction of evidence.

Google has been asked for comment.

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