Google Antitrust Suit and the DOJ’s Warning about Third-Party Messaging Apps

On March 3, 2023, the Department of Justice (DOJ) released a new policy announcing that when considering leniency for companies under investigation, the companies must have produced their employees’ digital communications, according to an article by the Volkov Law Group. DOJ prosecutors will be questioning companies on whether they can access employee chats, how their messaging policies are communicated to employees, and whether those policies are enforced.

In a recent multi-district antitrust case, District Judge James Donato sanctioned Google for failing to preserve employee “chat” evidence. Specifically, Judge Donato ruled that the company fell strikingly short of the requirement to preserve records in the case.

Google had been charged with an illegal monopoly for distributing Android mobile applications, as reported by Alex Cotoia and Daniela Melendez on JDSupra.com. Despite a preservation order directing them to retain these records, Google had failed to preserve its chat data. Further, the court found that Google did not effectively emphasize to its employees that they were required to follow the order.

In line with its document retention policy, Google maintains records of such chats for only 24 hours. Google’s failure to adhere to the letter of the Court’s order resulted in the loss of communications that could have been critical.

The Google case demonstrates that companies across the board must be proactive in maintaining business communications to comply with the DOJ’s new policy. It underscores the criticality of applying document preservation policies to all media, including ephemeral messaging, used by an organization’s employees to conduct company business.

In addition, companies must provide guidance to employees on complying with data protection laws and protection of a company’s sensitive information. As is patently evident in the Google case, serious consequences will result from failing to preserve relevant data in an ongoing or foreseeable litigation, or a corporate internal investigation.