This post is part of Revisiting Litigation Alleging Google Discovery Violations.
In re: Google Digital Advertising Antitrust Litigation. 1:21-md-03010-PKC. (S.D.NY.)
MDL docket originated August 12, 2021. First filing as to spoliation May 30, 2025.
May 30, 2025 letter presents MDL Plaintiffs’ request to file motions seeking an adverse inference against Google based on its spoliation — grounded in its scheme to encourage employees to use Google Chat set to automatically delete messages for employees subject to litigation hold; its failure to ensure that employees complied with litigation holds; and its policy to mislabel sensitive information as “privileged and confidential” to attempt to avoid discovery.
Explains the evidence of Google’s intent to spoliate evidence, including employees discussing what information they should discuss where and how.
Summarizes critical remarks from other courts that examined Google’s spoliation. Donato: “a permissive adverse inference instruction is a reasonable and proportionate remedy to Google’s intentional failure to preserve relevant evidence.” Mehta: “Google’s failure to preserve chat messages might” “warrant” sanctions. Brinkema: “systematic disregard of the evidentiary rules regarding spoliation of evidence … may well be sanctionable.”
Criticizes’s Google’s “systematic abuse of privilege” including by CEO Sundar Pichai personally, noting his admission that he “marked e-mails privileged, not because [he was] seeking legal advice, but just to indicate that they were confidential.” Notes criticism from other courts: Donato: “frankly astonishing abuse of the attorney-client privilege designation to suppress discovery.” Mehta: “the court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants.” Brinkema: “misuse of the attorney-client privilege may well be sanctionable.” Notes that other courts only withheld an adverse instruction because it would have been superfluous given the liability findings already made.