Google blasted as ‘negligent’ over evidence destruction as landmark DOJ antitrust case wraps up

A federal judge blasted Google for its “negligent” policy that resulted in the deletion of employee chat records as closing arguments wrapped up Friday in a landmark antitrust case that could result in unprecedented changes to the tech giant’s core business.

Justice Department attorneys asked Judge Amit Mehta to sanction Google for failing to preserve evidence despite a court order and to rule that its conduct was intended to conceal anticompetitive behavior. Google has denied wrongdoing.

Mehta said it was “negligent” of Google to implement the policy, which automatically destroyed employee messages after 24 hours.

“Google’s document retention policy leaves a lot to be desired,” Mehta said. “It’s shocking to me that a company would leave it to its employees to decide when to preserve documents.”

Mehta did not indicate whether he would sanction Google over the policy. An attorney for the tech giant said the auto-erase policy was explicitly disclosed to plaintiffs years earlier, undercutting the feds’ claims that it showed intent to destroy evidence.

Google was already sanctioned over the same evidence destruction claims in a separate federal case filed by “Fortnite” maker Epic Games. Late last year, US District Judge James Donato said Google’s “willful and intentional suppression of relevant evidence in this case is deeply troubling.”

“This conduct is a frontal assault on the fair administration of justice. It undercuts due process. It calls into question just resolution of legal disputes. It is antithetical to our system,” Donato said in December.

Earlier in the DOJ’s antitrust case, Google CEO Sundar Pichai testified that the automatic chat deletion policy was already in place when he took the job in 2015 and said he had since taken action to end it.

Much of the second and final day of closing arguments was focused on Google’s conduct toward advertisers in the online search market.

The DOJ said Google’s market dominance allows it to jack up prices on advertisers – and cited internal documents to argue that the company has at times tweaked search results in a way that hurt quality in order to boost its profits.

“Only a monopolist can make a product worse and still make more money,” DOJ attorney David Dahlquist said.

A day earlier, Google faced tough questions over claims by its lawyers that the company faces stiff competition for user eyeballs. The company’s defense team pointed to other tech platforms such as Microsoft and Amazon as well as travel sites like Expedia, smaller search engines like DuckDuckGo and media outlets like ESPN as rivals for search traffic.

Mehta appeared skeptical of the argument that Google, which has a 90% share of the online search market, faced meaningful competition from those firms.

“You really think that DuckDuckGo is a competitor on Google?” the judge asked Google’s lawyers at one point on Thursday.

The judge also scrutinized the DOJ’s arguments, warning that the feds faced a “hard road” to prove that Google had failed to innovate in online search over the last decade.

He cited Microsoft’s admission during the trial that it hadn’t spent enough resources to build out its own mobile search business to challenge Google.

Mehta is expected to issue a decision on whether Google has maintained an illegal monopoly over online search later this year. When initial court testimony concluded last fall, Mehta admitted he had “no idea” how he would rule on the case.

If Mehta rules against Google, a separate trial will be held to determine what remedies should be implemented. The DOJ has not specified what remedies it is seeking.

Options could include mandated “choice screens” allowing users to pick their own default search engine or even a breakup of Google’s business empire.

The Justice Department argued that Google has relied for years on billions of dollars in payments to partners such as Apple and AT&T – including $26.3 billion in 2021 alone – to ensure that its search engine is enabled by default on most smartphones. The feds say the deals stifle competition and hurt consumers by limiting choice and search quality.

Ahead of closing arguments, an unredacted document revealed that Google had made a whopping $20 billion to Apple in 2022 to be the default search engine on iPhones and other devices. The DOJ has pointed to the size of the deals as evidence of their importance to Google.

Google has denied operating a monopoly and asserted that it faces intense competition in the online search market. The company has described the default deals as fair competition and claims the public gravitates toward its search tool because of its quality.

Closing arguments came months after witness testimony that began in mid-September and lasted for 10 weeks. Key witnesses included Microsoft CEO Satya Nadella – who testified that Google’s default deals made the concept of user choice in online search “completely bogus.”

Google CEO Sundar Pichai also took the witness stand last October, as did Apple executive Eddy Cue and a cadre of economists, professors and business executives who gave detail on how the company’s search empire functions.

With Post wires