Antitrust Sanctions: The Duty to Preserve Chats

By: Tyson Y. Herrold & Edward J. Jacobs (BakerHostetler/Antitrust Advocate)

On August 5, 2024, District Judge Amit P. Mehta (U.S. District Court, District of Columbia) ruled in United States v. Google LLC that Google had violated §2 of the Sherman Act by monopolizing the internet search engine market. While this decision is poised to be one of the most significant of the year, a key takeaway lies within the court’s three-page ruling on spoliation sanctions, found at the end of the 286-page opinion – the duty to preserve chat communications remains a critical concern for courts and government enforcers.

Last year, the Department of Justice (DOJ) sought sanctions and requested an adverse inference under Federal Rule 37(e), citing Google’s “systemic destruction of documents.” The court found that the company had engaged in a “long-time practice (since 2008) of deleting [Google] chat messages among . . . employees after 24 hours,” a practice that reportedly persisted for three years after litigation commenced. The focus of the sanctions motion was on “ephemeral” messaging platforms, which automatically erase information after a brief period (e.g., daily) or once the recipient views it, often as the default setting.

Ultimately, Judge Mehta declined to impose sanctions because (i) there was sufficient evidence of an antitrust violation without the chat messages, and (ii) intent was deemed irrelevant to the monopolization claims in question. Nonetheless, Judge Mehta issued a warning:

The court’s decision not to sanction Google should not be interpreted as an endorsement of Google’s failure to preserve chat evidence. Any company that leaves the responsibility to its employees to identify and preserve relevant evidence does so at its own risk. Google avoided sanctions this time. It may not be so fortunate in the future.

Judge Mehta’s warning comes after a March 2023 sanctions ruling by District Judge James Donato in Epic Games, Inc. v. Google, Inc. (U.S. District Court, Northern District of California). Addressing much of the same conduct as Judge Mehta, Judge Donato imposed attorneys’ fees for Google’s failure to preserve internal chat communications. Although employees were instructed to enable chat history for case-related discussions, ensuring their preservation for litigation, Judge Donato found that a voluntary protocol managed by employees was insufficient to meet the company’s Rule 37(e) obligations. At trial, Judge Donato also informed the jury that they could consider Google’s failure to comply with Rule 37 when evaluating whether the company had engaged in anticompetitive conduct…

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