Judge reprimands Google for 'destroying' evidence as another Justice Department antitrust case looms

Google committed a “clear abuse of its privileges” by introducing a policy to automatically delete employee chat recordings, according to the judge presiding over a major Justice Department antitrust case targeting the company's alleged digital advertising monopoly.

U.S. District Judge Leonie Brinkema struck down Google during a hearing to consider the U.S. Department of Justice's request for an “adverse inference” against the company for deleting records it was required to keep. If granted, that request could mean the court could find that Google acted intentionally to destroy evidence relevant to the case.

At the heart of the motion was a policy outlined in a 2008 memo from Kent Walker, Google's general counsel. Walker advised his employees to turn off their chat history by default – a practice known internally as “Vegas mode.”

This meant that employee messages were automatically deleted after 24 hours.

“I certainly have nothing against saying [this] is not the way a responsible company should operate,” Brinkema said Tuesday, according to a transcript obtained by AdWeek. “A clear abuse of privilege.”

The judge's comments represent a serious setback for Google. The company is threatened with the breakup of its digital advertising technology empire, which generated sales of over 300 billion dollars last year alone.

The adtech trial, which does not involve a jury, begins on September 9, just weeks after U.S. District Judge Amit Mehta ruled that Google violated antitrust laws in another Justice Department lawsuit involving Google's online search business.

Brinkema, who will ultimately decide Google's fate in the proceedings, said the Walker memo contained “incredible smoking guns.”

While the judge did not issue a formal ruling, she noted that she would draw “conclusions” as both sides called witnesses to testify.

“A lot of evidence was probably destroyed,” Brinkema added.

A Google spokesperson declined to comment. In the past, the company has denied wrongdoing while claiming it provided millions of records in response to disclosure requests.

Google has been repeatedly criticized in court for failing to preserve employee chat recordings relevant to the various antitrust investigations against its company. Experts have long called the issue a critical weakness in the company's defense strategy, The Post reported.

While Mehta declined to punish Google for misconduct related to the destruction of documents during the online search process, he called the company's handling of evidence “negligent.”

“The court's decision not to impose sanctions on Google should not be read as an endorsement of Google's failure to preserve chat evidence,” Mehta said. “Any company that places the responsibility of identifying and preserving relevant evidence on its employees does so at its own peril.”

During the trial, Google CEO Sundar Pichai said he had since taken action to end the automatic deletion policy.

US District Judge James Donato was similarly critical when he presided over the antitrust case against “Fortnite” maker Epic Games against the Google Play App Store last December. Google ultimately lost the case in another landmark ruling.

During a hearing on December 1 last year, Donato said he had “never seen anything so egregious” after seeing “disturbing evidence” that Google's automatic deletion feature had deleted reams of chat logs from key employees.

“This behavior is a frontal attack on the fair administration of justice. It undermines due process. It challenges the fair resolution of legal disputes. It is contrary to our system,” Donato said at the time.