Google caught 'red handed' lying and destroying evidence during latest trial

U.S. District Judge James Donato asked the plaintiffs' lawyers to provide an amount in legal fees they seek as a sanction by April 21. Separately, the plaintiffs will have a chance to urge the judge to tell jurors that Google destroyed information that was unfavorable to them. The judge said he wanted to see "the state of play" later in the case. Separately, Google is fighting claims of destroyed chat records in a US Justice Department antitrust case in federal Court in Washington, D.C.

According to the judge's ruling, evidence shows that "Google intended to subvert the discovery process, and that Chat evidence was 'lost with the intent to prevent its use in litigation' and 'with the intent to deprive another party of the information's use in litigation.'" He also said that the chats that Google made public last month in response to a court order "provided more proof of very shady practices in responding to litigation hold notices."

For example, Donato quoted one newly produced chat: "an team member said he or she was 'on legal hold' but that they preferred to keep chat history off."

Google finally agreed on February 7 to turn the history setting to "on" for all 383 employees subject to a legal hold, at least temporarily. "These employees will not have the ability to turn history off.' "Google will meet and confer with Plaintiffs regarding which of these 383 legal hold recipients are the 'core set of relevant custodians' for which this setting should remain and then report back to the Court," the judge wrote.

Donato hasn't decided yet how Google should be punished. He says that "determining an appropriate non-monetary sanction requires further proceedings." In their motion for sanctions, Epic Games and the other plaintiffs asked the Court to "issue adverse inference jury instructions to fix Google's spoliation of Google Chats" or, as an alternative, to "issue a curative jury instruction."

In its brief against the motion for sanctions, Google said that how it handles chats where the history is turned off is "reasonable" and follows federal rules. "Plaintiffs do not come close to showing Google acted with the intent to deprive plaintiffs of evidence," Google wrote in November.