Judge James Donato officiates Epic against GoogleIt’s an issue that could determine the future of the Android App Store, but certification in this case could have larger ramifications for Google as well.
Judge Donato on Friday vowed to investigate Google for its deliberate and systematic suppression of evidence, calling the company’s conduct a “direct assault on the fair administration of justice.” We were there in the courtroom to explain it.
“I will find out who is responsible,” he said, adding that he would pursue these cases “on my own, outside of this trial.”
Certificate in Epic against Google The trial — and in a parallel antitrust lawsuit brought by the Justice Department against Google in Washington, D.C. — revealed that Google automatically deleted chat messages between employees, and that employees all the way up to CEO Sundar Pichai intentionally used it to hide certain conversations. Pichai and several other employees also testified that they did not change the auto-delete setting even after they were made aware of their legal obligation to preserve evidence.
Pichai, among other employees, admitted that they marked documents as legally privileged just to keep them out of other people’s hands.
On November 14, Pichai told the court that he relied on his legal and compliance teams to guide him properly, especially Alphabet’s chief legal officer, Kent Walker — and so Judge Donato brought Walker into court two days later.
But the judge was not satisfied with Walker’s testimony either, and accused him of “tap dancing.”
Walker said he never tried to audit whether employees actually preserved evidence, he left it up to individual employees to identify communications that might be relevant to a legal case, and more than one employee testified in court that they had the wrong idea of what was relevant.
“The most dangerous and dangerous evidence I have ever seen in my decade on the bench.”
Today, Judge Donato said it was “deeply troubling to me as a United States judge” that Google had acted in this way, calling it “the most seriously troubling evidence I have ever seen in my decade on the bench in connection with a case.” The party intentionally suppresses relevant evidence.”
“This conduct is a direct assault on the fair administration of justice. It undermines due process. It calls into question the fair resolution of legal disputes. It is inconsistent with our system,” Judge Donato said.
However, the judge decided today that he would not issue “mandatory inferential instructions” — instructions that would tell the jury they should proceed on the basis that Google destroyed evidence that could have hurt its case.
Instead, there will be a “lenient” jury instruction — the jury “may” conclude that the missing evidence may have helped Epic and hurt Google.
“The best course of action is for the jury to decide for themselves whether to reach a conclusion. I would not restrict the jury’s discretion by offering them that conclusion,” he said.
“Although it would be within bounds to issue mandatory evidentiary instructions, I can pursue these issues on my own, outside of this trial, in subsequent trials,” Judge Donato said.
He added: “I will find out who is responsible.” “It will be separate and apart from anything that happens here, but that day is coming.”
Google declined to comment the edge On the statements of Judge Donato.
Today, Epic and Google settled their case Epic against Google. We will return on December 11 for closing arguments and jury instructions.
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