Google has employed various strategies over the past 15 years to avoid legal scrutiny in anti-trust cases, according to a report by The New York Times. The tech giant, currently facing multiple anti-trust lawsuits in the United States, allegedly instructed employees to delete evidence from text messages, refrain from using specific language in internal communications that could be used against the company in court, and frequently involve lawyers to shield correspondence under attorney-client privilege. These practices reportedly date back to 2008, when Google was under investigation for an advertising deal with its then-competitor Yahoo.
An executive memo warned employees that regulators might exploit casually or carelessly written words, urging them to “think twice” before writing about “hot topics.” US regulations require companies under potential legal scrutiny to preserve relevant documents, but Google’s internal communication systems were reportedly configured to default to deletion, leaving employees to decide individually whether to retain their chat history in cases of legal relevance.
A 2011 internal memo advised employees to avoid using “metaphors involving wars or sports, winning or losing,” and to steer clear of terms like “markets,” “market share,” or “dominance.” Instead of such language, phrases like “putting products in the hands of new customers” were flagged as potentially problematic, as regulators might interpret them as evidence of denying consumer choice, according to the report.
The NYT highlighted several anti-trust testimonies revealing Google’s efforts to suppress internal communications. Employees were reportedly encouraged to label documents as “attorney-client privileged” and include company lawyers in conversations, even when the topics did not involve legal matters.
In the Google vs. Epic Games case, a California district court judge criticized the company for an “ingrained systemic culture of suppression of relevant evidence,” describing it as “a frontal assault on the fair administration of justice.” Similarly, in a case concerning Google’s advertising technology, a Virginia district court judge stated that the company’s document retention policies meant that “an awful lot of evidence has likely been destroyed.”
In another lawsuit brought by the US Justice Department over Google’s search engine dominance, a district court in Columbia reviewed documents marked as privileged by Google and concluded that many did not merit such protection after all.
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Statement from Google
In response to the allegations, Google stated that it takes its obligations to preserve and produce relevant documents seriously. “We have for years responded to inquiries and litigation, and we educate our employees about legal privilege,” the company said.
Agnieszka McPeak, a law professor at Gonzaga University, told The New York Times that Google’s internal practices gave the appearance of dishonesty. “Google had a top-down corporate policy of ‘Don’t save anything that could possibly make us look bad.’ And that makes Google look bad. If they’ve got nothing to hide, people think, why are they acting like they do?” McPeak added.
During the Epic Games trial, a company lawyer testified that the average Google employee writes 13 times more emails than employees at other companies. Changes to the company’s policies were implemented, they argued, to prevent the situation from becoming “worse.”
In the same case, Google was accused of abusing attorney-client privilege to withhold documents from legal scrutiny. The company denied fostering a “culture of concealment,” asserting that its employees were “unsure” of the meaning of certain terms. Google maintained that it had done its best to provide the necessary documents to the government and argued that the Justice Department failed to prove the deleted conversations were crucial to its case. However, the department countered that it couldn’t prove it because the materials had been “deleted.”
Amid intensifying legal scrutiny, Google reportedly adjusted its practices again, this time opting to preserve everything, including chats. Employees under litigation are no longer allowed to turn off their chat history.
Ironically, in response to the company’s updated policies, Google employees reportedly formed a group on WhatsApp, Meta’s end-to-end encrypted messaging app, to discuss the developments.
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