Google's failure to preserve internal chats 'concerning,' juror from Epic Games trial in the US tells MLex

Google suffered a historic loss this week as a federal jury in San Francisco found, at the conclusion of litigation filed by Epic Games, that it runs an illegal monopoly through its Android app store and engaged in anticompetitive conduct.

Following the verdict, a juror from the case told MLex® Senior Correspondent Xu Yuan that Google’s failure to preserve internal chats related to the US litigation was “concerning” and cast doubts on the company's integrity.

Keep scrolling for this exclusive, or start your 14-day free trial now for full access to our forensic archive on a memorable month for antitrust.

12 December 2023
By Xu Yuan

Google’s failure to preserve internal chats related to the US litigation filed by Epic Games was “concerning” and cast doubts on the company's integrity, a juror told MLex today.

Google suffered a historic loss yesterday as a federal jury in San Francisco found it runs an illegal monopoly through its Android app store and engaged in anticompetitive conduct.

A member of the nine-person jury said in an interview that the missing chats — internal communications carried out on the Google Chat instant messaging platform — were “concerning.”

“I did take that into account,” said the juror, who declined to be identified by name.

The default setting for one-on-one chats has been set to “history off” by Google, meaning chats would be permanently deleted after 24 hours. After the Epic litigation stated, Google left the decision to turn history on to employees themselves, including those on legal hold.

“Honestly I had a hard time with some of the integrity of the Google employees … A lot of it has to do with the Google chats and the history-off setting,” the juror said. The decision made it hard to tell if the employees were hiding something, the juror said.

The juror said Google’s practice of labeling nonconfidential materials as client-attorney privileged was also “pretty concerning.”

The juror works on the security and integrity team at the Social Security Administration. “Integrity is a big part of what we do … I just think they need a refresher on integrity a little bit there.”

But even if the chats had not been deleted, "I think [based on] the evidence of just all the contracts that they were involved in, it seems like they were really trying to limit the competition of competing app stores in that Android world," the juror said.

The verdict, delivered after about three hours of deliberation, shocked many. The juror attributed the speed of the verdict to the fact that the jurors have come to know each other well. “When the time came, we weren't afraid to get down to business,” the juror said.

The CEOs

The juror found Epic CEO Tim Sweeney “very honest,” “a down-to-earth person,” and “very passionate of what he does.”

“I could appreciate Tim’s testimony,” the juror said.

While both CEOs acted professionally, according to the juror, Google CEO Sundar Pichai’s explanation for deleting a request to turn history off in chats didn’t go over well. “You can see he tried to delete that statement, and he said it was a glitch in the in the chat system. So that was a little concerning to me,” the juror said.

At the elevator outside the courtroom after the verdict, the juror said, Sweeney told jurors that there could be a million app developers that wanted to say thank you.

Many members of the jury took the opportunity to take selfies with Sweeney.

“Good for them,” the juror said of Epic’s efforts to take on Google, citing Epic’s refusal to accept a deal from Google valued at $208 million. “It looks like it paid off for them.”

The agreements

Google’s agreements with gaming companies such as Activision Blizzard King (ABK) and Riot Games, and those with smartphone makers about preinstalling Google’s apps, showed that “Google was trying to push down competition there,” according to the juror.

The juror said the evidence showed that potential app stores operated by ABK and Riot never came into existence after talks with Google.

The juror pointed to evidence that a potential deal with phonemaker OnePlus to preinstall Epic’s Fortnite launcher was dropped because of OnePlus’s agreement with Google. The juror said it was “a little alarming to me … that there were these agreements that kind of put a halt to Epic moving forward with their app store.”

Google’s competition

Google, in its defense, relied heavily on its competition with Apple throughout the trial. The juror, however, said that competition only exists at the initial stage of buying a phone. The juror was the only Android user on the nine-person jury.

“When it comes to making a decision on a phone, personally for me, the App Store — I don't take that into consideration,” the juror said.

Google also said that Samsung was allowed to preinstall its Galaxy Store on its phones. That defense was also found unconvincing by the juror, who doesn’t remember ever using the Galaxy Store.

“I just don't think Samsung’s Galaxy store is a real competition to the Play Store,” the juror said.

The experts

During the trial, the market definition proposed by Google’s economist Catherine Tucker prompted much questioning from US District Judge James Donato.

As with Donato, the juror “had a hard time understanding her definition of the market,” which seemed to be “digital goods and transactions everywhere all at once.”

The juror, however, was “pretty impressed” by Epic’s economist, Douglas Bernheim. “He really made it easier to understand, in my opinion ... what point he was trying to get across,” the juror said. “He was a pretty powerful tool for the Epic team, I think.”

The juror made a decision on the case before going into deliberations. While the meter swayed between Epic and Google as different witnesses testified, during Bernheim's testimony, “it kind of became clear to me on my decision,” the juror said.

Bernheim's clear market definition was persuasive, the juror said.

The star attorney

After the trial, jurors also took pictures with Epic’s lawyer, whose style seems to have provided entertaining theater in a trial that sometimes could be dry.

“We were a big fan of Epic’s lawyer … Lauren Moskowitz,” the juror said.

“She was really lively,” the juror said. “We were always looking forward to her … [giving] us a little jolt of energy.”

“She did not mess around. She got down to business,” the juror said.