“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.
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.”
