Judge James Donato is presiding over the Epic v. Google case, which could determine the future of the Android App Store, but the testimony in this case could also have a bigger impact on Google. On Friday, Judge Donato announced an investigation into Google's deliberate and systematic suppression of evidence, calling the company's actions a "frontal attack on fair justice." He said he would pursue the issues on his own "outside of trial."
Testimony during the Epic v. Google trial, as well as in the Justice Department’s antitrust lawsuit against Google that was ongoing simultaneously in Washington, D.C., revealed that Google automatically deleted chat messages between employees, and that employees from CEO Sundar Pichai on up intentionally used this method to make certain conversations disappear. Pichai and many other employees also testified that they did not change automatic deletion settings even though they knew they had a legal obligation to preserve evidence.
Pichai and other employees admitted they marked the documents as legally privileged just to keep others from getting them.
On November 14, Pichai told the court that he relied on his legal and compliance teams to guide him correctly, especially Alphabet Chief Legal Officer Kent Walker (Kent Walker), so Judge Donato dragged Walker to court two days later. But the judge was also not satisfied with Walker's testimony, accusing him of "jumping around."
Walker said he never attempted to review whether employees actually withheld evidence -- it was up to individual employees to decide which communications might be relevant to the legal case, and more than one employee testified in court that they had misconceptions about which communications were relevant.
Judge Donato said that this behavior by Google "is deeply disturbing to me as a judicial officer in the United States," calling it "the most serious and disturbing case of intentional suppression of relevant evidence by one party that I have seen in my ten years as a judge. This behavior is a frontal attack on the impartial administration of justice. It undermines due process. It calls into question the fair resolution of legal disputes. It runs counter to our system."
However, the judge decided today that he would not issue a "coercive instruction" - telling jurors they should proceed with the understanding that Google destroyed evidence that could be detrimental to their case. Instead, the jury will be given a "permissible" instruction -- the jury "can" infer that the missing evidence might be helpful to Epic and detrimental to Google.
"The best approach is for the jury to decide for themselves whether to draw an inference. I will not limit the jury's discretion to draw that inference for them," Judge Donato said. "While it is well within my authority to issue mandatory inference instructions, I can handle these issues myself outside of this trial and in future trials. I'm going to find out who is responsible. That will be separate from anything that happened here, but that day is coming."