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Epic Games v. Google: Spoliation Lessons Learned

Sophie Pollack

Epic Games v. Google: Spoliation Lessons Learned
Westend61 via Getty Images

Epic Games, Inc. v. Google LLC (3:20-cv-05671)

On August 13, 2020, Epic Games sued Google in United States District Court for the Northern District of California, seeking injunctive relief over Google’s alleged unlawful monopoly over the Android operating system’s Google Play store. Leading up to the lawsuit, Epic Games had introduced an alternative payment system within Fortnite, its most popular game, which allowed Android users to bypass Google’s in-app purchase system; this violation of Google’s policies led to Fortnite’s removal from the Google Play Store. Shortly thereafter, Epic Games filed suit against Google, with state’s joining in MDL.

As the trial unfolded, a crucial aspect to Epic’s case emerged – the spoliation claims against Google. During discovery, the plaintiffs obtained information that Google had not preserved communications from its Google Chat internal messaging system. The plaintiffs inquired into Google’s Chat records, and by October 2021 had learned from the company that Google Chats were typically deleted after 24 hours, that the company had not suspended the auto-deletion after litigation had begun, and instead, allowed employees to make their own decision on whether to preserve their individual chats.

The plaintiffs requested sanctions under Federal Rule of Civil Procedure 37(e), and in March 2023, the court concluded that sanctions were warranted. Seemingly critical to the sanctions decision against Google was the company’s policy to leave chat preservation to individual employees. The court held an evidentiary hearing to detail the findings of fact pursuant to Federal Rule of Civil Procedure 52(a), which heavily emphasized testimony from various Google employees on their personal management of chat preservation – with the finding of fact stating that “the record demonstrates that Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat preservation instructions, and sometimes disregarded the instructions altogether.” The Court noted that the employee testimony “highlighted a fundamental problem with Google’s approach to Chat preservation. Google left their employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation.”

The Court also found that Google “did nothing in the way of auditing or monitoring Chat preservation.”

Practitioners can take several lessons away from this case. First, when advising clients on document preservation, practitioners should assess whether the client’s preservation guidelines are clear and objective. And because leaving document retention up to the discretion of individual employees could increase the risk of spoliation, practitioners should carefully assess the degree (if any) of discretion to be afforded individual employees. Similarly, counsel should assess whether, given the needs of the case, the client should implement auditing and monitoring systems for custodians and employees under litigation holds.

Further, accusations of evidence tampering, or destruction, can significantly impact the credibility of the accused party and influence the outcome of the case. This reputational harm could have been relevant in Epic’s case against Google as on December 11, 2023, the jury found Google guilty on all counts. When U.S. District Judge James Donato turned the case over to the jurors after the month-long trial, he instructed the jury not to give the company the benefit of the doubt over what was in the messages. The jury instructions furthered this, with instruction No. 13 stating “[y]ou may have seen that Google Chat communications were deleted with the intent to prevent their use in litigation. You may infer that the deleted Chat messages contained evidence that would have been unfavorable to Google in this case.” In a post-verdict interview, at least one juror confirmed they had found Google’s failure to preserve internal chats “concerning” and had “taken that into account” during deliberations.

Beyond the jury verdict, the case underscores the growing importance of informal chat messaging systems as an evidentiary tool in showcasing relevant business practices among employees. Further, as companies navigate complex legal challenges, they should also consider the broader implications for their reputation, consumer trust, and regulatory compliance.