Google Staff’s Efforts to Conceal Messages May Backfire

Over the past few weeks, lawyers for the Justice Department have informed a Virginia court that Google employees frequently labeled their emails as “privileged and confidential” and communicated “off the record” through chat messages, despite being instructed to preserve their communications for investigators.

This approach could have serious repercussions if the judge presiding over Google’s second antitrust trial concludes that the company deliberately destroyed evidence that could negatively impact its case. The judge may impose an adverse inference regarding missing documents, implying they would have been detrimental to Google’s position.

Documents presented in court often display the words “privileged and confidential” as business executives discuss their work, occasionally with a legal team member included. On Friday, former Google sell-side ad executive Chris LaSala testified that, following a litigation hold instruction, Google chat messages were set with history off by default. LaSala believed this setting needed to be adjusted for each chat involving substantive work conversations. Multiple former employees testified that they rarely changed this default setting while sometimes discussing substantive business matters over chat.

LaSala also occasionally took advantage of the default setting. In a 2020 chat shown by the government, an employee asked LaSala if they should email two other employees about an issue and then queried if it was too sensitive for email and should be kept on ping. LaSala responded by instructing them to “start a ping with history turned off.” In another 2020 exchange, LaSala advised starting an “off the record ping thread” with other employees.

LaSala explained that using “off the record ping” was a common practice and admitted he often used it. He testified, “Everyone used the phrase ‘off the record ping.’ My MO was mostly off the record, so old tricks die hard.”

Despite this, LaSala claimed he “tried to follow the terms of the litigation hold” but acknowledged making mistakes. He recounted an instance where he turned chat history on after a training session but was uncertain if the first message would be preserved, so he documented it in an email. LaSala emphasized that his mistakes were unintentional and that Google was generally meticulous in documenting communications.

Brad Bender, another Google ad tech executive, testified earlier, likening chat conversations to informal hallway encounters. The DOJ also questioned former executive Rahul Srinivasan about emails marked as privileged and confidential, for which he could not recall the specific legal advice he sought.

The DOJ argued that Google employees were well aware of how their written communications could be used against the company, highlighting the “Communicate with Care” training provided to employees. In a 2019 email, Srinivasan cautioned colleagues to frame their language carefully, especially regarding terms like “circumvention,” noting that documents and emails could be scrutinized by regulators. This email was labeled “PRIVILEGED and CONFIDENTIAL.”

DOJ-presented documents indicated that while Google discussed business decisions in writing, they sometimes intentionally limited documentation. A 2021 document noted the limited notes “due to sensitivity of the subject” and mentioned that privileged emails would follow up on specific action items.

Peter Schottenfels, a Google spokesperson, asserted that the company takes its obligations to preserve and produce relevant documents seriously. He stated that Google has responded to numerous inquiries and litigations, educating employees about legal privilege, and has produced millions of documents, including chat messages and unprivileged documents, in the DOJ cases alone.

The judge in Google’s first antitrust case with the DOJ over its search business previously refrained from imposing an adverse inference, though he ruled against Google on other fronts. He remarked that companies relying on employees to identify and preserve relevant evidence do so at their own risk and cautioned that Google might not avoid sanctions in future cases.

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