With another round of antitrust litigation between Epic Games and Google ramping up – and a new participant, Samsung, at its heart – a federal judge advised Google today that its conduct on evidence discovery must improve or he'll seek sanctions up to and including disbarment for lawyers who hide or delete evidence. Donato’s pointed threat and other similar discovery orders suggest judges in the US Northern District of California are increasingly fed up with tech companies testing their authority.
With another round of antitrust litigation between Epic Games and Google ramping up — and a new participant, Samsung, at its center — a federal judge gave a stern and unusual directive to Google today that its conduct on evidence discovery must improve or he will seek sanctions up to and including disbarment of lawyers.Epic’s new suit alleges Google and Samsung colluded to switch a feature in Samsung’s Android called Auto Blocker on by default (see here), making it more difficult for Android phone users to access app stores that compete with the Google Play app store. At a hearing today in San Francisco, US District Judge James Donato, who presided over the 2023 trial in which a jury concluded Google violated the antitrust laws over its app store policies, told Google and its outside counsel that he will have zero tolerance for discovery abuses this time around.
Donato’s blunt and uncommon disbarment threat accompanies other aggressive discovery sanction orders, such as one issued in 2023 by US District Judge Vince Chhabria accusing Meta Platforms and the law firm Gibson Dunn of a “sustained, brazen stonewalling campaign” in a privacy case around the Cambridge Analytica data leak (see here). And together they suggest judges in the Northern District of California, where so many tech industry legal cases play out, are increasingly fed up with having their authority tested by powerful tech companies and their law firms.
Just yesterday, another judge in the Northern District, US District Judge Yvonne Gonzalez Rogers, warned Apple that she would factor in its discovery “delay” tactics when making her decision about whether the company complied with an injunction requiring it to change the App Store’s anti-steering rules (see here).
Donato, who summoned Google Chief Legal Officer Kent Walker for a hearing in November 2023 to scrutinize Google's failure to properly preserve internal communications on Google Chat related to the first Epic Games case (see here), said today that he has decided not to seek the disbarment of “counsel” involved in the first Epic Games case. Outside groups have asked the California bar to have Walker disbarred, however (see here).
Donato appeared to be willfully imprecise about who faced the threat of disbarment in the previous antitrust case, suggesting he may have wanted his threat to apply equally to in-house and outside counsel.
The judge did not name which lawyer or lawyers he was considering recommending for disbarment. He declined to comment when asked by MLex for clarification after the hearing whether he was referring to Walker or outside counsel, with the firms Morgan Lewis & Bockius and Munger Tolles & Olson, which represented Google in the previous Epic Games case.
But Donato made it abundantly clear in court today that Google’s new legal team — both in-house lawyers and outside counsel, headed by Jeannie S. Rhee and Karen L. Dunn for the firm Paul, Weiss, Rifkind, Wharton & Garrison — will have no latitude for the kind of questionable attorney-client privilege claims or deleted internal communications that the judge said he heard in the first Epic Games case.
“It’s a new crew from Google. I’m looking forward to that,” Donato said, adding that over three years of litigation in the previous Epic Games he had witnessed an “egregious history of discovery abuses” by the tech giant. Because of that history, Donato warned Google’s new team that they will not start with “a clean slate” in Epic’s suit against Samsung and Google.
Donato said his decision to avoid seeking disbarment of counsel for Google “will not happen again” if discovery abuses continue. “I will not tolerate a single example of that in this case. You know better now. One thing Google can’t say is it hasn’t been told. It has.” Donato added that he will not accept “the slightest slip” on discovery by Google or its outside counsel.
Donato said he had been assured by Google’s “chief legal counsel” — Walker — that the company had changed the default settings on its internal chat features that caused problems with deleted chats in the first Epic Games case.
“Mr. Bornstein, you know what to look for. I’m going to rely on you” to flag abuses by Google, Donato said, addressing Epic’s lead counsel, Gary Bornstein.
A Google spokesperson declined to comment following the hearing. Epic also declined comment through a spokesperson.
Donato had a charged exchange with Walker over discovery issues during the 2023 trial.
At that time, for Google employees, the default setting for their Google Chat conversations was previously set to "History off," meaning chats would be permanently deleted after 24 hours. That setting didn’t change after around 360 employees were put on legal hold after the lawsuit was filed. The default was turned to “on” in the first quarter of 2023, Google CEO Sundar Pichai testified during that trial.
Google said it instructed employees on legal hold not to communicate on matters related to the lawsuit via chats, or to turn History on if using chats. But Google left the decision to turn on History to employees themselves. Walker said Google didn’t have the capability to automatically start preserving chats for employees put on legal hold for a lawsuit.
Donato cut him off, saying testimony refuted that assertion. “That finding is carved in stone.”
Donato also intervened when Walker answered several questions with “I believe.”
“Your CEO said the buck stops with you,” Donato told Walker. “If you don't know, just say it. Saying ‘you believe’ is not helpful.”
While Epic’s new 2024 complaint against Samsung (see here) alleges different conduct than was at issue in the 2023 trial, Epic says the effect of Samsung’s alleged conduct with Auto Blocker could affect the remedy from the 2023 Epic Games case by making it tougher for Samsung phone users to access competing Android app stores.
"The intended effect of Auto Blocker is clear: it would undo the remedies the Court imposes on Google and doom any attempt to open for competition the market for Android App Distribution," Epic said in the complaint filed in September.
Samsung moved to dismiss Epic’s new antitrust claims this week (see here), saying that it wouldn’t make sense for Samsung to conspire with Google to force Android users to Google’s app store when Samsung would be a key beneficiary of the remedy in the first Epic case.
“Epic does not explain why the second-largest competitor in the relevant market would conspire to neuter injunctive remedies that would greatly benefit it, all for no economic or monetary gain,” Samsung said in the motion.
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