View the full research report here
WASHINGTON, DC – As the Department of Justice and the Federal Trade Commission continue their efforts to end Google’s illegal digital advertising and search monopolies, the company’s gatekeeping and predatory business practices, and their manipulation of the broader economy, the Tech Oversight Project released a research report showing how the tech giant has abused the courts to stack the deck in their favor.
“For nearly two decades, Big Tech behemoths like Google have gobbled up competitors as a deliberate strategy to gatekeep the online marketplace, and only in recent years have they come under greater scrutiny. By continuing to cement their monopoly power in search and online ads — manipulating the digital marketplace in the process, it comes as no surprise that the Department of Justice Antitrust Division is investigating Google’s behavior and practices,” said Kyle Morse, Deputy Executive Director of the Tech Oversight Project. “Google refusing to cooperate with investigators is obstructionist, and concealing internal communications from the Department of Justice and withholding evidence from Congress is beyond the pale. They deserved to be shamed, and we hope that the Department of Justice’s new merger guidelines will help curb Google’s anti-consumer practices.”
The research will highlight how Google:
- Habitually deleted or improperly shielded communications relevant to lawsuits against them
- Repeatedly refused to provide investigating agencies with data necessary for their inquiries
- Withheld documents needed by plaintiffs before depositions and acted childishly during legal proceedings
GOOGLE HABITUALLY DELETED OR IMPROPERLY SHIELDED COMMUNICATIONS RELEVANT TO LAWSUITS AGAINST THEM
The Department of Justice Said Google Urged Employees to Discuss Sensitive Topics Using Their Internal Instant Message Platform That Automatically Deleted Chats After 24 Hours
- The DOJ accused Google of failing to suspend a feature of the chat platform deleting internal chats every 24 hours even when they anticipated litigation. The DOJ said Google “urged” employees to discuss sensitive topics via chats that would be automatically deleted after 24 hours. The DOJ said Google “systematically destroyed” instant message chats every 24 hours, which violated federal rules requiring the preservation of potentially relevant communications for litigation. The DOJ said Google failed to timely suspend their policy of allowing the automatic and permanent deletion of employee chat logs. The DOJ further said Google should have turned off the auto-delete feature for internal chats in 2019, “when the company reasonably anticipated” the DOJ’s litigation. The DOJ said Google had “falsely” told the U.S. that it had suspended the auto-deletion feature and was preserving chats as required under a court rule on electronically stored information.
- The DOJ said Google taught its employees to include an attorney, a privilege label, and request for councils advice on any sensitive business communications. The DOJ said the move was a way for Google to shield sensitive communications from discovery. The DOJ asked a judge to rule that Google’s policy was an abuse of attorney-client privilege and an attempt to avoid turning over documents. According to the DOJ, “often, knowing the game, the in-house counsel included in these communicate-with-care emails [did] not respond at all.” The DOJ said the false claims of privilege allowed Google to “improperly” withhold thousands of documents relevant to the DOJ’s antitrust suits against Google. The DOJ said Google had spent years “intentionally mislabeling documents – to hide significant information from civil discovery.” During the DOJ’s antitrust case against Google, Google claimed 140,000 documents were protected under attorney-client privilege but quickly changed course and turned over 98,000 of the 140,000 documents over to the government.
Epic Said Google Was Auto-Deleting Internal Chats Despite Anticipating Their Lawsuit
- During their lawsuit, Epic said Google was auto-deleting internal chats despite anticipating Epic’s lawsuit. In a joint statement by Epic, Match, the State of Utah and DOJ, the Parties accused Google of telling employees not to conduct certain communications on platforms that were subject to preservation – like emails and group chats. The Parties said Google employees warned each other not to conduct the sensitive communications on platforms that have communication preservation turned on. The Parties claimed that Google continued to auto-delete employee chats “even after this litigation commenced.” Google denied that it was required to automatically preserve every chat from every custodian regardless of relevance. Google falsely claimed that it did not have the ability to change default chat preservation settings for individual custodians within their company. It also claimed it had no idea how many of the recipients of the litigation hold for internal chats had personally elected to turn chat history preservation on – or when they chose to do so. Google later argued that Epic should not be allowed to present evidence of Google’s lack of preservation of chats.
Match Inc Similarly Said Google Did Not Monitor or Enforce Employee Compliance With Legal Hold For Their Communications
- Match claimed that Google employees weren’t “sufficiently familiar” with the details of their case to know what to preserve. Match accused Google of “destroying chats that may have been relevant to this case” over the course of many years. Match further said that Google had falsely told the court that it did not have the ability to change default settings of communication custodians to preserve chat history. Google admitted that it did not automatically preserve off the record chats even though custodians of the chats were subject to other litigation holds with relevant subject matter. Match said Google had not administratively turned off the auto-deletion feature even after litigation began, which they believed kept relevant messages from being preserved. Match said it was “highly likely” that many communications relevant to the suit had been automatically deleted after Google had “reasonably anticipated this litigation.”
- During their 2011 copyright lawsuit regarding Java, Oracle said Google refused to answer questions about their non-mobile business. Google rejected Oracle’s request on grounds that the information was not relevant to the case.
The DOJ Said During Discovery in Their Antitrust Lawsuit, Google Refused to Draft Search Terms That Corresponded With The DOJ’s Demands
- The DOJ said Google refused to negotiate a search and custodian protocol that corresponded with information sought in the DOJ’s requests. The DOJ said Google had “taken an impermissible approach to drafting search terms” for discovery. They said Google had “drafted search strings for broad categories” which made it “difficult to discern which (if any) search strings” were “sufficient to locate responsive information.” They said Google’s approach “conflict[ed] with the federal rules of civil procedure.” The DOJ said that Google “ignored the structure of the plaintiffs specific requests for documents” and had instead “fused plaintiffs individual requests into twelve general categories and one ‘catch all’ category.”
- The DOJ said Google continuously delayed providing the DOJ with aggregated search data or the contents of hyperlinks found in discovery documents. Google failed to meet its promised production schedule with the DOJ regarding more aggregated search data. The DOJ said delays by Google “ha[d] been indicative of this process.” Google also refused to provide the DOJ with access to the contents of hyperlinks found in discovery documents, even when the linked-to documents appeared directly relevant to the litigation. DOJ: “Plaintiffs have attempted to negotiate a compromise on this issue, but Google has not offered a meaningful solution.” The DOJ said that in some cases, Google had either not produced the linked-to document or had produced the document “without metadata sufficient to connect it to the parent document.” When the DOJ alerted Google to issue, Google reportedly “adopted a narrow interpretation of its obligation” and “often provided untimely or incomplete information” according to the DOJ.
DURING FEDERAL INVESTIGATIONS, GOOGLE REPEATEDLY REFUSED TO PROVIDE THE INVESTIGATING AGENCY WITH DATA NECESSARY FOR THEIR INQUIRY
Google Refused to Provide The Department of Labor With Compensation Data During an Investigation Into Gender-Pay Discrimination at the Company
- Google tried to refuse the data request, even though they were required to under law because they were a federal contractor. Google argued it was too financially burdensome and logistically challenging to compile and hand over the salary records the DOL requested. However, as a federal contractor Google was required to comply with equal opportunity laws and had to allow investigators to review records. Google continued to stonewall the DOL, forcing the department to sue Google over their refusal. The DOL said that Google had failed to respond to their data request for months.
In 2012, Google “Deliberately Impeded and Delayed” an Investigation by The FCC Into Google’s Unlawful Collection of Personal Data During Their Street View Mapping
- The FCC censured Google for obstructing their investigation into the street view program. In 2012, the FCC said Google had “deliberately impeded and delayed” an investigation into the personal information that was collected by the cars Google used to map streets. In an official report, the FCC said Google “willfully and repeatedly violated Commission orders to produce certain information and documents” the FCC required for its investigation. The FCC said Google had repeatedly failed to respond to their request for emails and had refused to identify the employees involved with the project. Once Google finally did respond, the company told the FCC that searching its employees’ emails would be “a time-consuming and burdensome task.” Google finally turned over the data requested by the FCC after the agency threatened to subpoena the information. When the FCC was able to question the engineer in charge of the street view program, the engineer invoked his 5th amendment right and declined to talk. Separately, Google neglected to delete the data it illegally collected while mapping streets in Europe despite promising to delete it.
During a DOJ Investigation Into a Criminal Cryptocurrency Exchange, Google Refused to Provide Them With Data They Requested in a Search Warrant Then Worked To Hide The Data Overseas
- During a DOJ investigation into the cryptocurrency exchange, Google actively worked to conceal information requested in a search warrant by the DOJ. The DOJ said Google had failed to preserve data they requested. Google responded by saying that because the data the DOJ sought was stored on overseas servers, the U.S. government lacked authority to seize the records under the Stored Communications Act. When a Second Circuit Court Of Appeals declared the warrant did not reach data stored outside the U.S., Google actively worked to create new tools that would prevent the requested data from being repatriated. A year later, Congress clarified that Stored Communications Act did indeed reach data that U.S. providers stored overseas, but according to the DOJ, “in the intervening time, data responsive to the warrant was lost.” Following Google’s actions, the DOJ filed a stipulation and agreement that forced Google to agree to reform and upgrade its legal process compliance program. Google had to retain an independent compliance professional to serve as an outside third-party related to Google’s compliance enhancements.
GOOGLE WITHHELD DOCUMENTS NEEDED BY PLAINTIFFS BEFORE DEPOSITIONS AND ACTED CHILDISHLY DURING LEGAL PROCEEDINGS
The DOJ Said Google “Improperly Withheld Documents” Ahead of Witness Depositions, Put Forth New Witnesses at the Last Minute and Engaged in “Discovery Misconduct”
- The DOJ said Google had “improperly withheld documents from a large number of significant witnesses” and only produced the documents after witnesses were deposed. The DOJ said Google’s improper withholding of documents had prevented them from completing a review of Documents ahead of depositions.
- Google told Epic they planned to put forth a new witness to be deposed without giving Epic the opportunity to conduct a pre-hearing deposition or providing the witnesses background. The witness Google put forth for Epic to depose was entirely new to the litigation and had not been mentioned once in the 3 million documents produced during discovery. Epic called for a pre-hearing deposition, saying it would allow them to prepare “a more informed cross examination.”
- During a lawsuit regarding Google’s unlawful tracking of users in incognito mode, Google was sanctioned for “discovery misconduct.” Google was ordered to pay more than $971,000 in the plaintiffs legal fees as a penalty for litigation misconduct. The judge in the case found that Google had failed to “timely identify witnesses, additional documents and data sources” relevant to the privacy suit.
During a 2010 Deposition, Larry Page Continually Claimed That He Didn’t Recall Crucial Conversations or Negotiations When Google Bought Youtube
- Page said he couldn’t recall whether he even was in favor of the purchase or if – as President of Products – he oversaw YouTube after it was acquired, atop other lost memories… When Page was asked whether he -as President of Products – presided over YouTube, Page merely said “Google ha[d] a wide variety of products.” He refused to answer whether he was in favor of the acquisition of YouTube, saying he couldn’t “remember [his] exact thinking,” but he didn’t think he was “tremendously upset by” the acquisition. Page later refused to answer whether or not he could remember any conversation with Sergey Brin or Eric Schmidt about Google’s acquisition of YouTube. Page said he couldn’t recall whether he was kept advised of negotiations with Viacom over a deal regarding YouTube, saying “again, same answer. I don’t recall.” Page also claimed that he didn’t recall whether Google was in discussions with the Motion Picture Association about copyright compliance issues with YouTube or whether he was advised of full movies being uploaded to YouTube. He also claimed not to know whether Google gave search preference to YouTube in search results or whether Google could block pirating sites like Bit Torrent.