As Justice Department lawyers explained in a Virginia court in recent weeks, Google employees generously described their emails as “privileged and confidential” and spoke “off the record” in chat messages, even after they had been instructed to keep their communications for investigators.
This strategy could backfire if the judge in the second antitrust case against Google believes that the company intentionally destroyed evidence that would have cast a bad light on the company. The judge might even go so far as to destroy Google's missing documents, assuming that they would have been bad for Google's case.
Court documents regularly feature the words “privileged and confidential” when company executives talk about their work, occasionally with a member of Google's legal team chiming in. On Friday, Chris LaSala, a former advertising manager on Google's sell-side, said that wasn't Google's only strategy. He testified that Google Chat message history was disabled by default after a stay of court proceedings related to law enforcement investigations, and that his understanding was that this had to be changed for each individual chat that involved substantive work conversations. Several former Google employees testified that they never changed the default setting and occasionally had substantive business conversations in chats, although these were largely limited to casual conversations.
LaSala also sometimes used that default to his advantage, according to documents the government presented in court. In one 2020 chat, an employee asked LaSala if he should email two other Google employees about an issue, and soon after asked, “Or is this too sensitive for email, so keep pinging?” LaSala responded, instructing the employee to “start a ping with history turned off.” In a separate 2020 exchange, LaSala again instructed his employee to “maybe start a confidential ping thread with Duke, you, me.”
“That was just the way we talked. Everyone used the phrase 'ping off the record,'” LaSala testified. “My modus operandi was mostly confidential, so old tricks die hard.”
“That's just how we talked. Everyone used the term 'off-the-record ping.'”
Still, LaSala said he “tried to comply with the terms of the hold,” but acknowledged he “made a mistake.” Shortly after a hold training session, he recalled receiving a chat from a colleague. Although LaSala said he had history turned on, he wasn't sure if the first message would be preserved. LaSala said he put that message in an email just in case. In general, LaSala said, “We've been really good about documenting everything … and to the extent that I've made a mistake a couple of times, it wasn't intentional.”
Brad Bender, another Google ad tech executive who testified earlier this week, described chat conversations with colleagues as more like “stumbling into the hallway and saying, 'Hey, we should chat.'” The Justice Department also questioned former Google executive Rahul Srinivasan about emails he had marked as privileged and confidential, and asked him what legal advice he sought in those emails. He said he could not remember.
Google employees are well aware that their written words could be used against the company, the Justice Department argued, pointing to the company's legal training for employees, “Communicate with Care.” In one 2019 email, Srinivasan put a lawyer on an email to colleagues about an ad tech feature and cautioned the group to be careful with their language. “We should be especially careful when portraying something as 'circumvention,'” he wrote. “We should assume that every document (and email) we create is likely to be seen by regulators.” The email was marked “PRIVILEGED and CONFIDENTIAL.”
While the numerous documents provided by the Justice Department show that Google often discussed business decisions in writing, at other times the documentation seemed to be intentionally sparse. “Notes were limited due to the sensitivity of the subject matter,” a 2021 Google document says. “Separate confidential emails are sent to people to provide explicit [action items].”
“We take our obligation to preserve and provide relevant documents seriously,” Google spokesman Peter Schottenfels said in a statement. “We have been responding to inquiries and litigation for years and educating our employees about attorney-client privilege. In the Department of Justice cases alone, we have provided millions of documents, including chat messages and documents not covered by attorney-client privilege.”
The judge in Google's first antitrust battle with the Justice Department over its search business declined to reach an adverse conclusion. although he ruled against Google in most other cases. Still, he made it clear that he “does not condone Google's failure to preserve chat evidence,” saying, “Any company that places the responsibility of identifying and preserving relevant evidence on its employees does so at its own peril. Google escaped sanctions in this case. It may not be so lucky in the next case.”