Amicus Brief: Epic Games v. Google LLC
By Lee Hepner and Laurel Kilgour
INTEREST OF AMICUS CURIAE
American Economic Liberties Project (“AELP”) is an independent nonprofit organization that works to promote competition, combat monopolistic corporations, and advance economic liberty for all. AELP organizes and employs a diverse set of leading policy experts in areas impacted by concentrated power that include community development, the airline industry, healthcare, international trade, national security, and small business entrepreneurship. It advocates for policies that address today’s crisis of concentration through legislative efforts and public policy debates.
AELP supports robust antitrust remedies that open markets to full and fair competition on the merits—and meaningful consequences for litigants that engage in spoliation and other litigation misconduct as Appellant Google LLC (“Google”) has done here. AELP’s previous efforts in this regard include calling for the State Bar of California to investigate potential violations of the California Rules of Professional Conduct by Google’s former General Counsel and other Google attorneys for
discovery misconduct in this and several other federal antitrust cases. All parties consent to the filing of this amicus brief. No counsel for a party has authored this brief in whole or in part, and no party, party’s counsel, or any other person—other than amicus curiae or its counsel— has contributed money that was intended to fund preparing or submitting this brief.
INTRODUCTION
Google does not come to this appeal with clean hands. Extensive testimony at multiple sanctions hearings led district court Judge James Donato to conclude that Google engaged in an intentional and prejudicial program whereby it “willfully failed to preserve relevant, substantive business communications that were made by employees on the Google Chat system” that employees “used daily.” Judge Donato found that Google was “not truthful” about its ability to change default chat preservation settings, or the completeness of its evidence preservation, and obstructed the litigation process to such an extent that its conduct amounted to “a frontal assault on the fair administration of justice” and was indeed the “most serious and disturbing evidence” he had “ever seen in [his] decade on the bench with respect to a party intentionally suppressing potentially relevant evidence in litigation.”
This was not the isolated assessment of just one judge. Two other federal judges have drawn similar conclusions about Google’s “shocking” misconduct. In the instant case, the district court sanctioned Google by instructing the jury that they were permitted to draw adverse inferences that the destroyed evidence would have disfavored Google, while noting that stronger sanctions would be “amply warranted” by the record.
Contrary to Google’s assertion—buried in a single footnote in its Opening Brief—that the “Chats issue” is “not relevant to any legal argument Google makes in this appeal,” spoliation has an ongoing impact on the fair administration of justice on appeal as well. In particular, Google argues that certain remedies should be overturned for lack of a “causal connection” to Google’s illegal maintenance of “network effects.” Although styled as a reversible legal error, Google is in fact arguing that the district court failed to make sufficient factual findings. As a threshold matter, we agree with Appellee’s assertion that the district court established a sufficient causal connection to support the catalog-access and app store-distribution injunctive relief issued in this case. To the extent additional evidence supporting a “causal connection” might be wanting in a case not plagued by a “rampant and systemic culture of evidence suppression,” here that missing evidence resulted in an instruction at trial allowing the jury to find that that evidence would have disfavored Google. Furthermore, the record in this case reveals that the deleted chats of at least one key Google executive would have been probative of the existence of a “causal connection” between Google’s illegal magnification of network effects through anticompetitive conduct.
As the Supreme Court has recognized, “all doubts” with respect to the appropriateness of an antitrust remedy are to be resolved in favor of the plaintiff, not the wrongdoer. Ford Motor Co. v. United States, 405 U.S. 562, 573 (1972). That principle must hold greater force in the context of a record prejudiced by pervasive spoliation.