DKT 373 - 2022.11.10 - Google Chat Deletions

Case 3:21-md-02981-JD Document 373 Filed 11/10/22 Page 1 of 14
1 Karma M. Giulianelli (SBN 184175) Brendan P. Glackin (SBN 199643)

[email protected] Lauren M. Weinstein (pro hac vice)
2 BARTLIT BECK LLP [email protected]
1801 Wewetta St., Suite 1200 [email protected]
3 Denver, Colorado 80202 OFFICE OF THE UTAH ATTORNEY
Telephone: (303) 592-3100 GENERAL
4 160 E 300 S, 5th Floor
Hae Sung Nam (pro hac vice) PO Box 140872
5 [email protected] Salt Lake City, UT 84114-0872
KAPLAN FOX & KILSHEIMER LLP Telephone: (801) 366-0260
6 850 Third Avenue
New York, NY 10022 Counsel for the Plaintiff States
7 Telephone: (212) 687-1980
8 Douglas J. Dixon (SBN 275389)
Co-Lead Counsel for the Proposed Class in In re [email protected]
Google Play Consumer Antitrust Litigation HUESTON HENNIGAN LLP
9
620 Newport Center Drive, Suite 1300
Paul J. Riehle (SBN 115199)
10 [email protected] Newport Beach, CA 92660
FAEGRE DRINKER BIDDLE & REATH Telephone: (949) 229-8640
11 LLP
Four Embarcadero Center, 27th Floor Counsel for Plaintiffs Match Group, LLC, et
12 San Francisco, CA 94111 al.
Telephone: (415) 591-7500
13
Christine A. Varney (pro hac vice)
14 [email protected]
CRAVATH, SWAINE & MOORE LLP
15 825 Eighth Avenue
New York, New York 10019
16 Telephone: (212) 474-1000
17 Counsel for Plaintiff Epic Games, Inc. in Epic
Games, Inc. v. Google LLC et al.
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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS, i
Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA
3 SAN FRANCISCO DIVISION
4
5 IN RE GOOGLE PLAY STORE Case No. 3:21-md-02981-JD

ANTITRUST LITIGATION
6
THIS DOCUMENT RELATES TO: PLAINTIFFS’ REPLY IN SUPPORT OF
7 THEIR MOTION FOR SANCTIONS
Epic Games Inc. v. Google LLC et al.,
8 Case No. 3:20-cv-05671-JD
Judge: Hon. James Donato
9 In re Google Play Consumer Antitrust
Litigation, Case No. 3:20-cv-05761-JD
10
State of Utah et al. v. Google LLC et al.,
11 Case No. 3:21-cv-05227-JD
12 Match Group, LLC et al. v. Google LLC et

al., Case No. 3:22-cv-02746-JD
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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS, ii
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES .......................................................................................................... ii
3
INTRODUCTION ...........................................................................................................................1
4
5 ARGUMENT ...................................................................................................................................1
6 A. Google Destroyed Relevant Chats ...........................................................................1
7 B. Plaintiffs Were Prejudiced by Google’s Destruction of Chats ................................4
8 C. Google Intended to Deprive Plaintiffs of Discoverable Evidence ...........................6
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CONCLUSION ................................................................................................................................7
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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS, i
1 TABLE OF AUTHORITIES
2 Cases
Apple, Inc. v. Samsung Elecs. Co. Ltd.,
3 888 F. Supp. 2d 976 (N.D. Cal. 2012) ........................................................................................ 4
4 DR Distributors, LLC v. 21 Century Smoking, Inc.,
513 F. Supp. 3d 839 (N.D. Ill. 2021) .......................................................................................... 3
5
Exp.-Imp. Bank of Korea v. ASI Corp.,
6 2018 WL 5263185 (C.D. Cal. Aug. 3, 2018).............................................................................. 4
7 John v. Cnty. of Lake,
2020 WL 3630391 (N.D. Cal. July 3, 2020)............................................................................... 4
8
Matthew Enter., Inc. v. Chrysler Grp. LLC,
9 2016 WL 2957133 (N.D. Cal. May 23, 2016) ............................................................................ 3
10 PersonalWeb Techs., LLC v. Google Inc.,
2014 WL 580290 (N.D. Cal. Feb. 13, 2014) .............................................................................. 6
11
RG Abrams Ins. v. L. Offs. of C.R. Abrams,
12 2022 WL 3133293 (C.D. Cal. July 1, 2022),
R&R adopted, 2022 WL 16641829 (Nov. 2022) ........................................................................ 7
13
Sanchez v. Jiles
14 2012 WL 13005996 (C.D. Cal. June 14, 2012) .......................................................................... 6
15 Schmalz v. Vill. of N. Riverside,
2018 WL 1704109 (N.D. Ill. Mar. 23, 2018).............................................................................. 6
16
Small v. Univ. Med. Ctr.,
17 2018 WL 3795238 (D. Nev. July 31, 2018) ............................................................................... 7
18 Ungar v. City of New York,
329 F.R.D. 8 (E.D.N.Y. 2018),
19 aff’d, 2022 WL 10219749 (2d Cir. Oct. 18, 2022) ..................................................................... 7
20
Rules
21 Fed. R. Civ. P. 37 .................................................................................................................... 3, 6, 7
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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS, ii
1 INTRODUCTION
2 Google admits that it has deleted Chats daily and continues to do so, cannot recover those
3 Chats, and had the ability to preserve those Chats with the push of a button but chose not to do so.
4 Unable to contest these facts, Google claims that the Federal Rules do not require “perfection” and
5 that its production of other documents cures its destruction of Chats. Opp. at 1. But Google’s
6 purported compliance with some of its obligations cannot excuse its utter disregard for others. The
7 Federal Rules do not give Google license to systematically destroy a means of communication that
8 its employees regularly use for substantive, candid business conversations.
9 None of Google’s excuses for its ongoing destruction remotely pass muster. First,
10 Google’s argument that its efforts were reasonable is irreconcilable with the systematic and
11 avoidable destruction of relevant Chats as well as its continued failure to explain why it did not
12 suspend automatic deletion, including after being expressly put on notice. Second, Google’s
13 contention that Plaintiffs have not suffered prejudice is refuted by evidence showing that Chats are
14 just as substantive as (and often more candid than) email. Third, Google’s argument that it lacked
15 the requisite intent ignores the facts that Google still, to this day, continues the wholesale
16 destruction of Chats, that Google withheld information about the company’s destruction of Chats
17 for months, and that Google’s custodians intentionally divert sensitive conversations to Chat to
18 avoid discovery. Indeed, Google does not, because it cannot, justify the undisputed fact that most
19 Chats are set to “history off” and that these Chats are deleted every 24 hours—even though Google
20 could easily have changed that setting to “history on.” Google’s ongoing, willful destruction of
21 relevant Chats warrants significant sanctions.
22 ARGUMENT
23 A. Google Destroyed Relevant Chats.
24 Google’s brief confirms that it failed to take reasonable steps to preserve Chats. Even
25 though Google could easily have set its custodians’ Chats to the “history on” setting, Google left
26 the “history off” default setting for individual Chat messages and continues to delete Chats every
27 24 hours. For any Chat to be preserved, a custodian would need to independently determine that it
28 relates to this litigation and take affirmative steps to preserve it, such as printing it out or emailing
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS, 1
1 ” Mot. at 4-5
2 (citing LMM Decl. Ex. 2 at 11, 14, Ex. C).
3 Unable to credibly claim reasonable efforts to preserve Chats, Google looks to a comment
4 to the 2015 amendments to Federal Rule 37, that states the Rule “does not call for perfection.”
5 Fed. R. Civ. P. 37(e) & cmt. (2015); Opp. at 5. But Google’s conduct is far from trivial
6 imperfection—it is a complete failure to preserve a primary means of communication. The
7 advisory committee statements certainly do not permit a party to automatically delete records from
8 one of its two primary communication platforms. On the contrary, the committee notes recognize
9 that “the prospect of litigation may call for reasonable steps to preserve information by intervening
10 in [the] routine operation” of an electronic information system. Fed. R. Civ. P. 37(e) & cmt. (2015).
11 Furthermore, Google ignores that the very same portion of the committee notes advises courts to
12 “be sensitive to the party’s sophistication.” Id. Google is one of the most sophisticated litigants in
13 the world, its resources are unparalleled, and it designed the Chat platform at issue. Google could
14 have easily chosen to turn off its own auto-delete mechanism, but it chose not to. In fact, it
15 continues to delete these Chats today. Such conduct warrants sanctions. See Matthew Enter., Inc.
16 v. Chrysler Grp. LLC, 2016 WL 2957133, at *1 (N.D. Cal. May 23, 2016) (ordering sanctions
17 where defendant did not instruct outside vendor to turn off automatic deletion).
18 Google’s additional arguments as to why it did not need to take the basic step of changing
19 its auto-delete settings are similarly unavailing. First, Google suggests Plaintiffs’ cases are
20 distinguishable because they involved auto-deletion of emails, not Chats. Opp. at 6. This is a
21 distinction without a difference. Chats now have all the functionality of emails and provide
22 additional benefits; they allow employees to communicate instantly with one or multiple others,
23 to share files and provide instant feedback, to collaborate on documents and projects in real time,
24 to post links to external websites, and much more. As noted in Plaintiffs’ opening brief, employees’
25 Chat communications are not limited to scheduling lunch and office gossip. They are a key means
26 for ongoing substantive business communications, and are often far more candid and unguarded
27 than email. Mot. at 8-9. Consistent with the proliferation of workplace instant messaging chat
28 platforms, courts recognize that parties have a duty to preserve them. In DR Distributors, LLC v.
1 21 Century Smoking, Inc., a case Plaintiffs cited and Google ignored, the court ordered sanctions
2 after finding that defendants had a duty to preserve both emails and Yahoo! chats, where the
3 destroyed Yahoo! chats were used for relevant communications. 513 F. Supp. 3d 839, 978-79
4 (N.D. Ill. 2021); see also Exp.-Imp. Bank of Korea v. ASI Corp., 2018 WL 5263185, at *4 (C.D.
5 Cal. Aug. 3, 2018) (ordering production of instant messages). Here too, Google employees used
6 Chat for relevant business communications. Mot. at 2-4, 8-9.
7 Second, Google repeatedly invokes “proportionality,” e.g., Opp. at 5-6, but never explains
8 why or how preventing the daily deletion of relevant Chats from negotiated custodians would
9 impose any burden, much less an undue burden—or why this step would be “disproportionate” in
10 a case where multiple Plaintiffs, including 37 States and a large, proposed class of consumers,
11 challenge core aspects of Google’s business practices. Incredibly, Google relies on the steps it took
12 to stop the auto-deletion of other types of communications—emails and a narrow category of
13 “Threaded Room/Space Chats”—to argue its wholesale destruction of most Chats was reasonable.
14 Opp. at 5. But it establishes the opposite—that Google was fully aware of its obligation to preserve
15 documents, including Chats, and that it inexplicably chose to destroy the vast majority of Chats.
16 B. Plaintiffs Were Prejudiced by Google’s Destruction of Chats.
17 Plaintiffs have been prejudiced by Google’s destruction of Chats. The evidence in
18 Plaintiffs’ opening brief shows that Google employees regularly use Chats for substantive
19 purposes. Indeed, the few Google Chats that were not destroyed illustrate that Google employees
20 use Chats for real-time, candid communication about topics that are highly relevant to this
21 litigation. Mot. at 8-10. Google’s daily deletion of Chats, and the pervasive use of Chats for
22 substantive conversations, establish prejudice.
23 Google argues that Plaintiffs’ motion is a “fishing expedition” because Plaintiffs have
24 failed to “articulate why key evidence would be buried in the midst of chats regarding lunch plans
25 and meeting requests.” Opp. at 7. Google’s argument turns the standard on its head: Plaintiffs are
26 not required to prove the contents of Chats that Google destroyed. Apple, Inc. v. Samsung Elecs.
27 Co. Ltd., 888 F. Supp. 2d 976, 993 (N.D. Cal. 2012); see also John v. Cnty. of Lake, 2020 WL
28
1 ). By systematically deleting its Chats,

2 Google has deprived Plaintiffs of key evidence regarding Google’s motives, among other things.
3 Google dismisses Plaintiffs’ examples of prejudice as merely “three chats.” Opp. at 7.
4 Setting aside that Plaintiffs’ motion cited more than three, Mot. at 8-9, the fact that Plaintiffs were
5 able to locate highly probative documents even among Google’s meager production is more than
6 enough for the Court to infer that many highly probative documents were destroyed—and that
7 Google has not met its “heavy burden” of proving otherwise. See Mot. at 8 (citing PersonalWeb
8 Techs., LLC v. Google Inc., 2014 WL 580290, at *4 (N.D. Cal. Feb. 13, 2014) (“[A] party must
9 only come forward with plausible, concrete suggestions as to what the destroyed evidence might
10 have been before a heavy burden shifts to the spoliating party to show a lack of prejudice.”)).
11 Finally, Google argues that any substantive Chats that were destroyed could be replaced
12 by “contracts, emails, presentations, strategy documents, and transactional data produced by
13 Google.” Opp. at 2. Google has no basis for that assertion. Google nowhere explains how these
14 other documents could replace the candid conversations about Google’s conduct and motives in
15 employees’ Chats. Moreover, Google cannot credibly make this representation because it cannot
16 establish the contents of the Chats it destroyed. The sole case Google cites in support is entirely
17 inapposite; in Sanchez v. Jiles, the Court did not issue an adverse inference for another party’s
18 destruction of evidence where that evidence may have been “largely duplicative” of specifically
19 identified available evidence, including testimony from the witness whose recorded interview was
20 lost. 2012 WL 13005996, at *14 (C.D. Cal. June 14, 2012); see also Schmalz v. Vill. of N.
21 Riverside, 2018 WL 1704109, at *4 (N.D. Ill. Mar. 23, 2018) (rejecting argument that plaintiff
22 could substitute other evidence for deleted text messages and finding prejudice). Google’s
23 conjecture that the documents it produced can replace the untold number of destroyed Chats—
24 which Plaintiffs have shown are categorically different than other documents—should be rejected.
25 C. Google Intended to Deprive Plaintiffs of Discoverable Evidence.
26 Google ignores all Plaintiffs’ evidence of Google’s intent, instead pointing to the steps it
27 took to preserve other non-Chat documents to suggest a lack of intent. Opp. at 9-10. But “a party’s
28 conscious dereliction of a known duty to preserve electronic data” satisfies Rule 37(e)(2)’s intent
Dated: November 10, 2022

1
4 BARTLIT BECK LLP

Karma M. Giulianelli
5
KAPLAN FOX & KILSHEIMER LLP
6 Hae Sung Nam
7 Respectfully submitted,
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By: /s/ Karma M. Giulianelli
9 Karma M. Giulianelli
10 Co-Lead Counsel for the Proposed Class in In

re Google Play Consumer Antitrust Litigation
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PRITZKER LEVINE LLP
13 Elizabeth C. Pritzker
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Respectfully submitted,
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By: /s/ Elizabeth C. Pritzker
16 Elizabeth C. Pritzker
17 Liaison Counsel for the Proposed Class in In re

Google Play Consumer Antitrust Litigation
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CRAVATH, SWAINE & MOORE LLP

1
Christine Varney (pro hac vice)
2 Katherine B. Forrest (pro hac vice)
Gary A. Bornstein (pro hac vice)
3 Timothy G. Cameron (pro hac vice)
Yonatan Even (pro hac vice)
4 Lauren A. Moskowitz (pro hac vice)
Justin C. Clarke (pro hac vice)
5
M. Brent Byars (pro hac vice)
6 Michael J. Zaken (pro hac vice)
7 FAEGRE DRINKER BIDDLE & REATH LLP

Paul J. Riehle (SBN 115199)
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By: /s/ Lauren A. Moskowitz
10 Lauren A. Moskowitz
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Counsel for Plaintiff Epic Games, Inc.
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OFFICE OF THE UTAH ATTORNEY GENERAL
14 Brendan P. Glackin
Lauren M. Weinstein
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17 By: /s/ Lauren M. Weinstein

Lauren M. Weinstein
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Counsel for the Plaintiff States
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HUESTON HENNIGAN LLP
21 Douglas J. Dixon
Christine Woodin
22 Joseph A. Reiter
23 Respectfully submitted,
24 By: /s/ Douglas J. Dixon
Douglas J. Dixon
25
26 Counsel for Plaintiffs Match Group LLC et al
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E-FILING ATTESTATION
1
2 I, Lee M. Mason, am the ECF User whose ID and password are being used to file this
3 document. In compliance with Civil Local Rule 5-1(i)(3), I hereby attest that each of the signatories
4 identified above has concurred in this filing.
5
/s/ Lee M. Mason
6 Lee M. Mason
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Case 3:21-md-02981-JD Document 373 Filed 11/10/22 Page 1 of 14

1 Karma M. Giulianelli (SBN 184175) Brendan P. Glackin (SBN 199643)

1 UNITED STATES DISTRICT COURT

5 IN RE GOOGLE PLAY STORE Case No. 3:21-md-02981-JD

12 Match Group, LLC et al. v. Google LLC et

1 ). By systematically deleting its Chats,

Dated: November 10, 2022

4 BARTLIT BECK LLP

10 Co-Lead Counsel for the Proposed Class in In

17 Liaison Counsel for the Proposed Class in In re

CRAVATH, SWAINE & MOORE LLP

7 FAEGRE DRINKER BIDDLE & REATH LLP

17 By: /s/ Lauren M. Weinstein

26 Counsel for Plaintiffs Match Group LLC et al

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