[…] back in 2020 Epic added an option to Fortnite on mobile that let players buy Fortnite’s in-game V-Bucks currency directly from the company at a discount, bypassing both Apple’s and Google’s app store fees. This violated Apple and Google policies Epic agreed to and quickly led to both companies removing Fortnite from their respective mobile phone app stores. That triggered a lawsuit from Epic and led to a protracted 2021 legal fight against Apple over how Apple ran its app store, the monopoly it may have had, and the fees it charged app developers on in-app purchases. And now Epic is waging a similar legal battle against Google.
As reported by The Verge on November 6, the first day of the trial, Epic was allowed to tell the jury that Google may have destroyed or hidden relevant evidence. And throughout the first six-days of the trial, Epic’s lawyers have continued to bring up how few chatlogs Google provided during discovery and grilled Google execs over deleted chats and jokes about hiding conversations.
On November 7, Google Information Governance Lead Genaro Lopez was questioned multiple times about the seemingly missing chatlogs, and the company’s policy of telling employees to chat “off the record” about sensitive issues that could cause problems later down the line. Epic’s legal team also went after Google’s chat system, which includes a tool that lets its employees prevent chat history from being saved, and pointed out that Google employees were doing this even after a legal hold was put on the company following the Fortnite lawsuit. Asked if Google could have changed this policy and forced chats to be saved, Lopez agreed that it could have been altered, but wasn’t.
“You cannot guarantee that the documents that were destroyed will contradict the testimony we’re going to hear?” asked Epic’s lawyer. Lopez couldn’t make that guarantee.
On November 8, Google Play’s VP of Apps and Games Purnima Kochikar was also questioned about deleted chats and explained that the court won’t ever see her chat logs.
“During this case, you had your default setting to delete chats every 24 hours, correct?” Epic’s legal team asked.
“That was the default,” Kochikar said. She also confirmed she didn’t take any steps to change this setting.
On November 9, some saved chat messages from Google’s head of platforms & ecosystems strategy for Android, Margaret Lam, showed her directly asking someone to turn off chat history due to “sensitivity with legal these days :)”.
Lam claimed in court that no Google attorney had briefed her on preserving chats during Epic’s legal hold. However, Epic’s lawyers weren’t done, and continued to show messages in which Lam asked people to turn off chat history. The Verge reports that one of these situations included a colleague pushing back and insisting that he was on a legal hold. In response, Lam messaged: “Ok maybe I take you off this convo :)”.
At another point, Lam messaged someone else: “also just realized our history is on 🙊 can we turn it off? Haha”.
Lam did push back, claiming that she went to legal for better advice after these conversations and now understands she failed to comply with the legal hold.
Then on November 13, James Kolotouros, VP of Android platform partnerships, admitted that he can’t remember a single instance when he might have turned on his chat history.
Google’s CEO wasn’t saving evidence, either
And today, during Google CEO Sundar Pichai’s time on the stand, Epic was able to get him to confirm that he also wasn’t saving his chats, letting messages auto-delete after 24 hours. Epic also showed evidence of Pichai asking for chat history to be turned off and then trying to delete that message, though the Google CEO claimed that was a glitch.
Not only that, Pichai confirmed that he has in the past marked documents with attorney/client privilege even when he was not seeking legal advice just so those emails didn’t get forwarded. Pichai told Epic’s lawyers that nobody told him that was wrong, though he now admits that he shouldn’t have done that.
Epic’s goal for all of this has been to show that Google might have been deleting chats or hiding evidence. That would help it make the case to the jury that the Android platform creator is trying to avoid creating a legal paper trail which could imply the company has something to hide from the court. That in turn makes Google seem less trustworthy and helps color all of its actions in a different light, something that could ultimately swing a jury one way or the other.
Regardless of if the jury cares about what has happened, the judge in the case very much seems to. Judge James Donato appears so fed up with the situation that on November 13, he demanded that Google’s chief legal officer show up in court by November 16 to explain what’s going on. If he doesn’t show or can’t give a good enough reason for why so much evidence was seemingly destroyed, the judge is considering instructing the jury to not trust Google as much as they might have before.
Needless to say, such a turn would not be good for Google’s fortunes in its continuing proceedings with Epic.
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