Google advised its employees to systematically delete messages and avoid certain terms to evade evidence in various antitrust cases.

The tech giant Google has adopted a strategic approach over the past 15 years to avoid legal risks by creating an internal “deletion culture.” This approach involved instructing employees to delete messages, avoid sensitive terms, and always include attorneys in communications. These policies became known in detail during three antitrust cases (Epic Games, the U.S. Department of Justice, and the European Commission) over the past year.

Foundations Laid in 2008

According to the New York Times, in 2008, Google laid the foundation for this process after a Yahoo advertising deal faced antitrust scrutiny and a series of patent, trademark, and copyright lawsuits. Managers emphasized in a confidential note to employees that they should think twice before writing about “sensitive issues.”

Google also modified its instant messaging tools, setting messages to be sent “off the record” by default, ensuring that carelessly written comments were automatically deleted the next day.

Attorney-Client Privilege Used as a Shield

Google also implemented a policy of using attorney-client privilege as a kind of legal shield. Employees were instructed to mark emails with “attorney-client privilege” and, if possible, include a Google attorney in the recipients. This was done even if the communication had no legal discussion.

Furthermore, despite requirements to retain documents for legal proceedings, Google excluded instant messages from this obligation. Employees involved in litigation could choose to keep chat histories at their discretion, but most did not use this feature.

These strategies received harsh criticism from judges in antitrust cases. U.S. District Court Judge James Donato, who presided over the Epic case in the Northern District of California, stated that Google had created a “culture of suppressing evidence” that was “a direct assault on the administration of justice.”

Besides Google, other major companies like Amazon and Albertsons have also come under scrutiny for similar practices, suggesting that such approaches are a widespread trend in the tech and business world. For example, the Federal Trade Commission (FTC) alleged that Amazon executives used messaging apps like Signal to discuss competition issues. The FTC also claimed that Albertsons violated legal requirements by deleting work messages.

“Likely, Many Pieces of Evidence Were Destroyed”

Google faced harsh criticism from U.S. District Judge Leonie Brinkema in the Eastern District of Virginia, who presided over an antitrust case concerning ad technology. In an August hearing, Judge Brinkema stated that Google's document retention policies “did not reflect the behavior of a responsible corporate entity” and suggested that “likely, many pieces of evidence were destroyed.” The Justice Department sought to have missing documents create an adverse inference against Google, applicable in cases concerning its monopoly power and anticompetitive behavior. Closing arguments in the case are expected in the coming days.

The “Marie Kondo” of Corporations

Google’s document management policies, which have effectively turned it into the Marie Kondo of corporations, are seen by some experts as a “corporate effort at organization and minimalism,” but others argue this has a negative impact on transparency. Gonzaga University Law School professor Agnieszka McPeak said, “Google has adopted a top-down policy of ‘not keeping anything that might make us look bad.’” However, she added that this approach ultimately makes the company seem more suspicious.

The Shadow of Microsoft

Google's adoption of such measures is believed to have been influenced by the 1998 antitrust case against Microsoft. The Department of Justice used internal company documents to demonstrate Microsoft's monopolistic behavior in the internet browser market. These documents revealed aggressive and threatening language from top executives. For instance, an executive trying to convince Apple to remove a feature said, “We want you to knife the baby,” which became a key point in the case.

Microsoft lost the case, although the decision was partially overturned on appeal. Nevertheless, the incident has remained a precedent for Google and others.

Google's Vocabulary Became Restricted as It Grew

As Google grew, it further restricted its employees’ language and communications. In 2011, a document titled “Antitrust Basics for the Search Team” advised employees not to use terms like “market,” “market share,” or “dominance.” The company also required employees to avoid war or sports metaphors and any mention of gains or losses.

The methods Google used to keep its communications away from legal scrutiny were once again subject to criticism. Documents, especially in the Epic Games case, revealed that Google encouraged employees to include attorneys in communications to create a “legal privilege” shield. An email sent by Google CEO Sundar Pichai in 2018 to an executive, labeled as “Attorney Client Privileged, Confidential,” was withheld from the court even though it had no actual legal context. This document was later removed from protection after Epic's objection.

During the trial, Google’s chief legal officer Kent Walker argued that employees confused the concept of “privilege” with “confidentiality.” However, evidence in the Epic case showed that some Google lawyers mockingly referred to this practice as “fake privilege.” Walker said he was “disappointed” and “surprised” to hear such comments.

The jury ultimately sided with Epic Games on all claims. Following this decision, an investigation was requested by the California State Bar into Kent Walker for allegedly encouraging Google to destroy documents.

“What Happens in Vegas Stays in Vegas” Culture

In September 2023, while Google was on trial for its dominance in internet search, the Department of Justice accused the company of withholding tens of thousands of documents under the claim of privilege. Upon court review, none of these documents were found to be privileged.

Judge Amit P. Mehta stated that Google had clearly learned from Microsoft and effectively trained its employees not to create “bad” evidence. However, Judge Mehta concluded that this ultimately did not matter: In August, Google was found guilty of being a monopoly.

Google’s culture of withholding and destroying evidence was so ingrained in employees that some, like former YouTube business development director Robert Kyncl, once opted to fax a confidential document instead of emailing it. In a 2021group chat, one employee asked, “Is there any harm in keeping the history here? I need to retain some information for memory purposes.”

At an August hearing in the ad tech case, one of the Justice Department's lawyers mentioned that Google employees referred to these off-the-record chats as “Vegas.” But as we know from Hollywood, what happens in Vegas doesn’t usually stay in Vegas.

By 2023, the Federal Trade Commission (FTC) and the Department of Justice had made it clear that communications via messaging apps should be considered legal documents. In response, Google changed its messaging policies and made saving all messages the default setting. Employees involved in litigation could no longer turn off chat history. However, old habits die hard, and some employees continued to communicate secretly on Meta's secure messaging app, WhatsApp.

In conclusion, Google’s antitrust battles are just beginning. Following the designation of the company as a “monopoly,” a series of cases are expected throughout 2025. The Department of Justice aims to break up Google, with discussions centering on selling Chrome and making significant changes to Search.