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DoJ accuses Google of deleting chats in its antitrust investigation, similar to Fortnite's case

In a new filing late last week, the U.S. Department of Justice alleged that Google "routinely destroyed" an entire category of written communications in its antitrust investigation against the company. The communications -- chat messages between Google employees -- were deleted over the course of several years, the DoJ stated. A similar issue had been brought up by Epic Games in its ongoing trial involving the Fortnite maker accusing Google of anticompetitive conduct with regard to its Play Store and rules over in-app purchases.

This latest claim, however, has to do with the Justice Department's antitrust suit filed in 2020 against Google for monopolizing the search and advertising market.

In it, the DoJ states that the Federal Rules of Civil Procedure should have required Google to stop its practice of auto-deleting chat histories as soon as it anticipated the coming litigation back in mid-2019. But Google did not, the government claims. Instead, Google employees continued to be able to turn their messaging app's chat history from on to off anytime they saw fit.

It explains that the program Google uses, Google Hangouts, an instant messaging product, offers a feature for "off the record" chats, which are automatically deleted by the system after 24 hours. Google had even trained its employees how to use the feature to discuss sensitive topics instead of using email, the filing says.

It also points to a written policy weeks after the litigation was filed that authorized Google employees to control the preservation of their chat history by either selecting "history on" chats, which retained messages for 30 days to 18 months, depending on the user's selection, or the "history off" texts, which disappear 24 hours later. For one-on-one chats, the default setting is "history off."

What's more, the U.S. government alleges Google lied about its chat preservation policies, falsely claiming it had "put a legal hold in place" to suspend auto-deletion. The company claimed it was preserving all its custodial chats, the filing continues, but in reality, it failed to disclose to the U.S. government and the court anything about its 24-hour deletion policy, which continued up until this month -- years after the case was filed.

"As we now know, over the last four years, Google routinely destroyed these written communications," the filing reads. "In fact, Google continued automatically deleting these 'off the record' chats after it reasonably anticipated litigation, throughout the United States’ investigation, and even when the company became a defendant in this litigation — every 24 hours up until February 8, 2023."

Of particular interest to Epic Games, the filing additionally references the Fortnite lawsuit as another example of this issue, noting that even after Epic had confronted Google with its concerns, it still withheld its 24-hour deletion policy from the U.S. government.

The messages could have provided the Justice Department with key communications to support its case or names of witnesses to call. It's asking the court to remedy the situation by way of sanctions and wants the court to order Google to provide further information about the deleted chat practices, including written declarations and oral testimony, in advance of the requested hearing.

The allegations here are notable not only because of the weight they have in the current antitrust litigation between Google and the government, but also because similar concerns are also now being played out in the Epic Games trial. In the latter, the judge has already said he will not let Google "get away with" deleting the chats. At present, the court in Epic's case is still in the process of collecting additional chats from Google, including those related to the litigation as well as any others that mention terms like "sensitive," "history off," "history is not off," "history on," "history is on," "off the record," or "on the record."

Google denied the claims made by the DoJ in a statement.

“We strongly refute the DOJ's claims. Our teams have conscientiously worked for years to respond to inquiries and litigation. In fact, we have produced over 4 million documents in this case alone, and millions more to regulators around the world," a Google spokesperson said.