In late 2008, as Google faced antitrust scrutiny over an advertising deal with its rival Yahoo and confronted lawsuits involving patent, trademark and copyright claims, its executives sent out a confidential memo.
“We believe that information is good,” the executives told employees in the memo. But, they added, government regulators or competitors might seize on words that Google workers casually, thoughtlessly, wrote to one another. To minimise the odds that a lawsuit could flush out comments that might be incriminating, Google said, employees should refrain from speculation and sarcasm and “think twice” before writing to one another about “hot topics”.
The technology was tweaked, too. The setting for the company’s instant messaging tool was changed to “off the record”. An incautious phrase would be wiped the next day.
The memo became the first salvo in a 15-year campaign by Google to make deletion the default in its internal communications. Even as the internet giant stored the world’s information, it created an office culture that tried to minimise its own.
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Among its tools: using legal privilege as an all-purpose shield and imposing restraints on its own technology, all while continually warning that loose lips could sink even the most successful corporation.
How Google developed this distrustful culture was pieced together from hundreds of documents and exhibits, as well as witness testimony, in three antitrust trials against the Silicon Valley company over the last year. The plaintiffs – Epic Games in one case, the US department of justice in the other two – were trying to establish monopoly behaviour, which required them to look through emails, memos and instant messages from hundreds of Google engineers and executives.
The exhibits and testimony showed that Google took numerous steps to keep a lid on internal communications. It encouraged employees to put “attorney-client privileged” on documents and to always add a Google lawyer to the list of recipients, even if no legal questions were involved and the lawyer never responded.
Companies anticipating litigation are required to preserve documents. But Google exempted instant messaging from automatic legal holds. If workers were involved in a lawsuit, it was up to them to turn their chat history on. From the evidence in the trials, few did.
Google is far from the only company trying to keep newer forms of communication out of the courtroom. But it has faced the broadest criticism for its actions, with the judges in all three antitrust cases chastising the company for its communications practices.
Judge James Donato of US district court for the northern district of California, who presided over the Epic case, said there was “an ingrained systemic culture of suppression of relevant evidence within Google” and that the company’s behaviour was “a frontal assault on the fair administration of justice”.
Judge Leonie Brinkema of US district court for the eastern district of Virginia, who is overseeing Google’s antitrust case involving advertising technology, said at a hearing in August that the company’s document retention policies were “not the way in which a responsible corporate entity should function”. She added: “An awful lot of evidence has likely been destroyed.”
In a statement, Google said it took “seriously our obligations to preserve and produce relevant documents. We have for years responded to inquiries and litigation, and we educate our employees about legal privilege”. The company said it had provided “millions of documents” in the justice department cases alone.
From Google’s point of view, it was the Marie Kondo of corporations, merely tidying up its records and files. But it did this so comprehensively and obsessively that it created the illusion of deceit that it was trying so hard to dispel, said Agnieszka McPeak, a professor at Gonzaga University School of Law who has written about evidence destruction.
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“Google had a top-down corporate policy of, ‘Don’t save anything that could possibly make us look bad,’” she said. “And that makes Google look bad. If they’ve got nothing to hide, people think, ‘Why are they acting like they do?’”
As Google became bigger, its vocabulary became smaller. In a memo from 2011 titled Antitrust Basics for Search Team, the company recommended avoiding “metaphors involving wars or sports, winning or losing”, and rejecting references to “markets”, “market share” or “dominance.”
And if using the right words and deleting messages did not keep Google out of the courthouse, the company concluded, invoking the lawyers would.
In the Epic case, the plaintiff contended that Google’s many evocations of attorney-client privilege were merely for show, to keep the documents out of the courtroom. Sundar Pichai, Google’s chief executive, wrote in one 2018 email to another executive, “Attorney Client Privileged, Confidential, Kent pls advice,” referring to Kent Walker, Google’s top lawyer. The email, about a non-legal issue, was withheld by Google and stripped of its privilege only after Epic challenged it.
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Walker was asked to explain Google’s behaviour to the judge. He denied that there was “a culture of concealment” but said one problem was Googlers unsure of the meaning of certain words. “They think of the word ‘privilege’ as similar to ‘confidential’,” he said.
A message surfaced in the Epic trial in which a Google lawyer identified the practice of copying lawyers on documents as “fake privilege” and seemed rather amused by it. Walker said he was “disappointed” and “surprised” to hear that term.
The jury hearing the case ruled in favour of Epic on all 11 counts in December 2023.
In September 2023, as Google went on trial in an antitrust case over its dominance in internet search, the justice department asserted that the company had withheld tens of thousands of documents, saying they were privileged. When the documents were reviewed by the court, they were deemed not privileged after all.
“The court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants,” Judge Amit Mehta of US district court for the District of Columbia wrote. Google, he noted, had clearly learned Microsoft’s lesson: It had effectively trained its employees not to create “bad” evidence.
Julia Tarver Wood, a justice department lawyer, said at an August hearing in the ad-tech case that Google employees referred to their off-the-record chats as ‘Vegas’: “What happens in Vegas stays in Vegas.”
Google maintained that it did its best to provide the government with the documents it could, and that, in any case, the justice department did not establish that the deleted conversations were crucial to its case. The justice department said it could not do that because the material had been deleted.
Regulators have recently underlined that there is no “Vegas” in chats. This year, the Federal Trade Commission and the justice department’s antitrust division made it “crystal clear” in an enforcement memo: Communications through messaging apps are documents and must be preserved if there is threat of litigation.
Last year, Google changed its procedures. The default became saving everything, including chats. Employees on litigation holds can no longer turn chat history off.
Old habits die hard, however. In one chat, employees responded to the news by forming a group to secretly communicate on WhatsApp, Meta’s secure messaging app. – This article originally appeared in The New York Times.
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