Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 1 of 17
`
`
`
`Brian C. Rocca, S.B. #221576
`brian.rocca@morganlewis.com
`Sujal J. Shah, S.B. #215230
`sujal.shah@morganlewis.com
`Michelle Park Chiu, S.B. #248421
`michelle.chiu@morganlewis.com
`Minna Lo Naranjo, S.B. #259005
`minna.naranjo@morganlewis.com
`Rishi P. Satia, S.B. #301958
`rishi.satia@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`One Market, Spear Street Tower
`San Francisco, CA 94105
`Telephone: (415) 442-1000
`
`Richard S. Taffet, pro hac vice
`richard.taffet@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`101 Park Avenue
`New York, NY 10178
`Telephone: (212) 309-6000
`
`
`Counsel for Defendants Google LLC et al.
`
`
`
`Glenn D. Pomerantz, S.B. #112503
`glenn.pomerantz@mto.com
`Kuruvilla Olasa, S.B. #281509
`kuruvilla.olasa@mto.com
`Nicholas R. Sidney, S.B. #308080
`nick.sidney@mto.com
`MUNGER, TOLLES & OLSON LLP
`350 South Grand Avenue, Fiftieth Floor
`Los Angeles, California 90071
`Telephone: (213) 683-9100
`
`Kyle W. Mach, S.B. #282090
`kyle.mach@mto.com
`Justin P. Raphael, S.B. #292380
`justin.raphael@mto.com
`Emily C. Curran-Huberty, S.B. #293065
`emily.curran-huberty@mto.com
`Dane P. Shikman, S.B. #313656
`dane.shikman@mto.com
`MUNGER, TOLLES & OLSON LLP
`560 Mission Street, Twenty Seventh Floor
`San Francisco, California 94105
`Telephone: (415) 512-4000
`
`Jonathan I. Kravis, pro hac vice
`jonathan.kravis@mto.com
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW, Suite 500E
`Washington, D.C. 20001
`Telephone: (202) 220-1100
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA,
`SAN FRANCISCO DIVISION
`
`Case No. 3:21-md-02981-JD
`
`DEFENDANTS’ OPPOSITION TO
`PLAINTIFFS’ MOTION FOR
`SANCTIONS
`
`Judge:
`
`
`Hon. James Donato
`
`IN RE GOOGLE PLAY STORE
`ANTITRUST LITIGATION
`
`This Document Relates To:
`Epic Games Inc. v. Google LLC et al., Case No.
`3:20-cv-05671-JD
`In re Google Play Consumer Antitrust
`Litigation, Case No. 3:20-cv-05761-JD
`State of Utah et al. v. Google LLC et al., Case
`No. 3:21-cv-05227-JD
`
`Match Group, LLC et al. v. Google LLC et al.,
`Case No. 3:22-cv-02746-JD
`
`
`
`
`
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 2 of 17
`
`
`
`I.
`II.
`
`III.
`
`IV.
`
`TABLE OF CONTENTS
`
`Page
`
`Introduction ............................................................................................................................1
`Background ............................................................................................................................2
`A.
`Google’s Chat Product ...............................................................................................2
`B.
`Google’s Preservation Efforts ....................................................................................4
`C.
`Procedural History ......................................................................................................4
`Argument ................................................................................................................................4
`A.
`Google Took Reasonable Steps to Preserve Relevant Chats. ....................................5
`B.
`Plaintiffs Fail to Demonstrate That They Suffered Any Prejudice. ...........................7
`C.
`Plaintiffs Fail to Show that Google Intended to Deprive Plaintiffs of
`Information. ................................................................................................................9
`Conclusion ............................................................................................................................10
`
`
`
`
`
`-i-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 3 of 17
`
`
`
`
`FEDERAL CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Apple, Inc. v. Samsung Elecs. Co.,
`881 F. Supp. 2d 1132 (N.D. Cal. 2012) .......................................................................................6
`
`CAT3, LLC v. Black Lineage, Inc.,
`164 F. Supp. 3d 488 (S.D.N.Y. 2016) ........................................................................................10
`
`Chinitz v. Intero Real Est. Servs.,
`No. 18-cv-05623-BLF, 2020 WL 7389417 (N.D. Cal. May 13, 2020) .......................................5
`
`Colonies Partners, L.P. v. County of San Bernardino,
`No. 5:18-cv-00420-JGB (SHK), 2020 WL 1496444 (C.D. Cal. Feb. 27, 2020) .......................10
`
`Fast v. GoDaddy.com LLC,
`No. CV-20-01448-PHX-DGC, 2022 WL 325708 (D. Ariz. Feb. 3, 2022) ................................10
`
`FTC v. Qualcomm Inc.,
`969 F.3d 974 (9th Cir. 2020) ........................................................................................................2
`
`Function Media, L.L.C. v. Google, Inc.,
`No. 2:07–cv–279–CE, 2011 WL 4017953 (E.D. Tex. Sept. 9, 2011) .........................................9
`
`Glaukos Corp. v. Ivantis, Inc.,
`No. SACV 18-620 JVS (JDEx), 2020 WL 10501850 (C.D. Cal. June 17, 2020)........................6
`
`John v. County of Lake,
`No. 18-cv-06935-WHA(SK), 2020 WL 3630391 (N.D. Cal. July 3, 2020) ..............................10
`
`Leon v. IDX Sys. Corp.,
`464 F.3d 951 (9th Cir. 2006) ........................................................................................................7
`
`Lokai Holdings LLC v. Twin Tiger USA LLC,
`No. 15cv9363 (ALC) (DF), 2018 WL 1512055 (S.D.N.Y. Mar. 12, 2018) ................................8
`
`Matthew Enterprise, Inc. v. Chrysler Group LLC,
`No. 13-cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016) .......................................8
`
`Sanchez v. Jiles,
`2012 WL 13005996 (C.D. Cal. June 14, 2012) ............................................................................7
`
`Small v. Univ. Med. Ctr.,
`No. 2:13-cv-0298-APG-PAL, 2018 WL 3795238 (D. Nev. July 31, 2018) ................................5
`
`U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co.,
`857 F.2d 600 (9th Cir. 1988) ........................................................................................................7
`
`
`
`
`
`-ii-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 4 of 17
`
`
`
`WeRide Corp. v. Kun Huang,
`No. 5:18-cv-07233-EJD, 2020 WL 1967209 (N.D. Cal. Apr. 24, 2020) ...............................6, 10
`
`Youngevity Int’l v. Smith,
`No. 3:16-cv-704-BTM-JLB, 2020 WL 7048687 (S.D. Cal. July 28, 2020) ................................9
`
`FEDERAL RULES
`
`Fed. R. Civ. P. 37 ...................................................................................................................1, 5, 7, 9
`
`Fed. R. Civ. P. 37, Comment (2015) ..................................................................................................6
`
`Fed. R. Civ. P. 37(e) ............................................................................................................. 1, passim
`
`Fed. R. Civ. P. 37(e)(1) ..................................................................................................................2, 5
`
`Fed. R. Civ. P 37(e)(2) ...............................................................................................................2, 5, 9
`
`Fed. R. Civ. P. 37(e) & Comment (2015) ......................................................................................1, 5
`
`
`
`
`
`
`
`-iii-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 5 of 17
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`INTRODUCTION
`Google fully complied with its discovery obligations by taking robust steps to preserve
`relevant chats, including by issuing litigation hold notices regarding chat preservation and
`automatically preserving certain categories of chats. As a result of its efforts, Google has
`produced thousands of chats and millions of other documents in this litigation.
`Plaintiffs disregard Google’s preservation efforts and contend that Google is required to
`automatically preserve every chat from every custodian, regardless of relevance. But that is not
`the law; Rule 37 requires “reasonable steps” not “perfection.” Adv. Comm. Notes to 2015
`Amend. of Fed. R. Civ. P. 37(e). Nor do Plaintiffs show that Google acted with the “intent to
`deprive” Plaintiffs of information in this litigation—a prerequisite for imposing the extreme
`sanction of an adverse inference instruction. To the contrary, Google’s efforts to preserve and
`produce chats and other information dispel any notion that Google sought to deprive Plaintiffs of
`evidence. The Court should deny this meritless motion.
`First, Google took reasonable steps to preserve relevant ESI. Google automatically
`preserved relevant employees’ emails, custodial documents, and certain categories of chats. In
`addition, Google issued timely litigation hold notices and reminders to custodians regarding the
`preservation of chats. As a result of these efforts, Google has produced over 3.1 million
`documents in this litigation, including 3,084 relevant chats from a collection of over 176,000
`chats. Plaintiffs appear to contend these efforts were not just inadequate, but also irrelevant—that
`Google was subject to a per se rule requiring preservation of every chat by every custodian. Mot.
`at 6. That is not the law, and Plaintiffs do not cite any case establishing this purported per se rule.
`In fact, Rule 37(e) “does not call for perfection,” and recognizes that “reasonable steps to
`preserve suffice.” Adv. Comm. Notes to 2015 Amend. of Fed. R. Civ. P. 37(e). As deposition
`testimony in this case confirms, unlike emails, chats are typically used by Google employees to
`discuss non-substantive issues and coordinate simple logistics, such as employees’ availability for
`meetings or video calls. In light of this fact, Google reasonably relied on a combination of
`litigation hold instructions regarding chats and automatic preservation for some categories of chats
`(as accurately described in Google’s retention policy, contrary to Plaintiffs’ selective misquoting).
`
`-1-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`I.
`
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 6 of 17
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`To further confirm the reasonableness of its chat preservation efforts, Google offered to
`share the relevant portions of its litigation hold notices (without waiving privilege). But because
`Plaintiffs insist on a per se chat preservation rule that is unsupported by case law, they refused
`Google’s offer, calling such notices “irrelevant.” See Status Conference Hearing Transcript
`(“5.12.22 Hr’g Tr.”) 27:8-10), ECF No. 229.
`Second, Plaintiffs do not show they suffered any prejudice under Rule 37(e)(1). The focus
`of this antitrust litigation is on (1) defining the “relevant market,” (2) whether Plaintiffs can show
`evidence of “reduced output, increased prices, or decreased quality” as a result of Google’s alleged
`conduct, and (3) Google’s “procompetitive rationale[s].” FTC v. Qualcomm Inc., 969 F.3d 974,
`989, 991-92 (9th Cir. 2020). Plaintiffs fail to explain why any unique evidence regarding their
`claims would be found in chats rather than in the massive corpus of contracts, emails,
`presentations, strategy documents, and transactional data produced by Google. As this Court
`previously recognized: “When you have email and memos and documents and everything else, the
`chats seems [like] the tail on the dog, in terms of where you’re going to find good evidence.” See
`5.12.22 Hr’g Tr. 29:8-11.
`Third, Plaintiffs’ requested sanction—an adverse inference instruction—is reserved for
`those situations where a party has destroyed evidence with the “intent to deprive” another of use in
`litigation. See Fed. R. Civ. P 37(e)(2). The premise of an adverse inference instruction is that “a
`party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a
`reasonable inference that the evidence was unfavorable to the party responsible for loss or
`destruction of the evidence.” Adv. Comm. Notes to 2015 Amend. of Fed. R. Civ. P. 37(e). That
`inference makes no sense here in light of Google’s extensive efforts to preserve custodial ESI and
`its issuance of litigation hold instructions regarding chat preservation. For these reasons,
`described more fully below, Plaintiffs’ Motion should be denied.
`BACKGROUND
`II.
`Google’s Chat Product
`A.
`Currently, and as relevant here, Google offers Chat, a product that can be used for: (1)
`one-on-one chats and group chats, and (2) so-called “Threaded Rooms / Spaces,” which are a
`
`-2-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 7 of 17
`
`
`
`variation of a group chat. (See Declaration of Andrew Rope ¶ 2 (“AR Decl.”).) Google
`employees generally use chats for short, non-substantive “pings” on logistics, scheduling, or
`personal matters. For instance, Tian Lim, VP of User Experience & Product Management,
`testified, “[W]e call them pings to various members of our team to coordinate meetings, quickly
`check in on the status of something. But it’s typically quite logistics – logistical in nature.” (Ex. 4
`to Joint Statement Regarding Google’s Preservation of Instant Messages (Lim Dep. 442:16-22),
`ECF No. 257-5.) Similarly, Mike Marchak, Director of Play Partnerships, Strategy & Operations,
`testified that “[c]hats are generally used for like quick updates for a meeting or need to reschedule
`or something like that.” (Declaration of Lee M. Mason (“Mason Decl.”) Ex. 5 (Marchak Dep.
`32:18-21), ECF No. 348-7.) Jamie Rosenberg, VP of Strategy & Operations for Platforms &
`Ecosystems, testified that he generally used chats for similar purposes, such as “to see if they are
`available on short notice for a call or to join a meeting.” (Mason Decl. Ex. 3 (Rosenberg Dep.
`127:14-21), ECF No. 348-5.)
`One-on-one and certain group chats can be set to “history on” or “history off,” and users
`can toggle between those two settings at any time. (AR Decl. ¶ 3.) Google’s default setting for
`such chats is “history off.” Id. “Threaded Rooms / Spaces,” however, are always set to “history
`on,” and users cannot turn “history off.” (AR Decl. ¶ 4.) In the normal course of business,
`“history on” chats are preserved for 30 days to 18 months depending on the type of chat, and
`“history off” chats are retained for 24 hours1. (AR Decl. ¶ 3.) When an employee becomes
`subject to a legal hold, Google retains “history-on” chats, including all chat threads within
`Threaded Rooms / Spaces in which the employee has participated, for as long as the legal matter is
`pending. (Mason Decl., Ex. 1 at Ex. A (“Retention Policy”), ECF No. 348-3.) Google’s
`Retention Policy separately instructed employees subject to a legal hold not to “manually delete
`any chats relevant to the matter at issue under any circumstances.” (Retention Policy at 2.)
`
`
`1 The preservation period for “history off” chats is not Google-specific functionality; rather it is
`part of the functionality of the Google Chat product and applies equally to all companies and users
`of the product. (AR Decl. ¶ 3)
`
`-3-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 8 of 17
`
`
`
`Contrary to Plaintiffs’ misleading assertions, Mot. at 2, 6, Google does not represent to employees
`that all chats are automatically preserved when an employee is on hold. (Retention Policy.)
`Google’s Preservation Efforts
`B.
`Google timely issued litigation hold notices in September 2020, shortly after these cases
`were filed. Plaintiffs do not argue that Google’s litigation hold was untimely. The hold notices,
`including a March 2021 update, instructed custodians on chat preservation. In addition, Google
`sent reminders to particular custodians on November 30, 2020, June 29, 2021, July 23, 2021, and
`July 26, 2021, that included instructions on chat preservation. (AR Decl. ¶ 12.) Plaintiffs first
`raised concerns about Google’s retention of chats with the Court in the parties’ December 9, 2021
`Joint Case Management Statement. See ECF No. 159 at 6-14. Google subsequently issued two
`additional hold updates, in January and May 2022, both of which contained instructions on chat
`preservation. Ultimately, Google produced more than 3.1 million documents in this case totaling
`more than 21 million pages. (AR Decl. ¶ 12, 17.)
`Procedural History
`C.
`After Plaintiffs raised the issue of chats preservation with the Court on December 9, 2021,
`the parties served and responded to additional interrogatories about preservation,2 then met and
`conferred on February 7 and again on February 17. (Declaration of Emily Curran-Huberty ¶ 2, 4
`(“ECH. Decl.”).) Plaintiffs then did nothing for nearly three months. (ECH. Decl. ¶ 6.) On May
`6, 2022, Plaintiffs notified Google that they intended to move for sanctions and raised the issue
`just days later with the Court. (See 5.12.22 Hr’g Tr. 22:2-21.) The Court subsequently issued a
`briefing schedule. (Oct. 5, 2022 Order, ECF No. 340.)
`III. ARGUMENT
`Under Rule 37(e), sanctions for a party’s failure to preserve ESI are available only if
`Plaintiffs can show: (1) that electronically stored information (“ESI”) “that should have been
`
`
`2 The State AG Plaintiffs categorically refused to respond to any of the preservation interrogatories
`and refused to state whether and when they issued any hold notices, refused to state whether or
`how they preserved any text messages or chats, refused to state whether any text or chat messages
`were destroyed, and refused to describe their document preservation or retention practices. (Ex. 1
`to ECH Decl.).
`
`-4-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 9 of 17
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`preserved” was lost “because a party failed to take reasonable steps to preserve it”; (2) that any
`lost ESI “cannot be restored or replaced through additional discovery”; and (3) “prejudice . . .
`from the loss of the information.” Chinitz v. Intero Real Est. Servs., No. 18-cv-05623-BLF, 2020
`WL 7389417, at *2 (N.D. Cal. May 13, 2020) (quoting Fed. R. Civ. P. 37(e)).
`Even when a plaintiff has met these elements, sanctions must be limited to “measures no
`greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Sanctions in the form of an
`adverse inference instruction may be imposed “only upon a finding that the party acted with the
`intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2).
`Plaintiffs fail to make this showing.
`Google Took Reasonable Steps to Preserve Relevant Chats.
`A.
`Rule 37(e) requires “reasonable steps” to preserve electronically stored information, and
`“does not call for perfection.” Fed. R. Civ. P. 37(e) & cmt. (2015). Google took the requisite
`reasonable steps to preserve potentially relevant chats in this litigation:
`● Automatically preserved all custodians’ “history on” chats as part of document
`collections, accounting for over 176,000 chats;
`● Issued a legal hold at the beginning of the litigation that instructed custodians about
`chat preservation;
`● Sent four reminders and three litigation hold updates, all of which included
`instructions on chat preservation.
`Plaintiffs either misrepresent or ignore those efforts, and have repeatedly refused Google’s offer to
`review the legal hold language under a privilege non-waiver agreement.
`Instead, Plaintiffs’ position appears to be that the law imposes a per se obligation on
`Google to preserve every single chat sent by every employee, regardless of whether that
`ephemeral data is relevant to this case or such retention is proportional. But they cite no case to
`support such a broad proposition. To the contrary, since the amendment of Rule 37, courts have
`stressed the importance of “evaluat[ing] proportionality in allowing discovery and considering
`sanctions for the loss of relevant or potentially relevant ESI.” Small v. Univ. Med. Ctr., No. 2:13-
`cv-0298-APG-PAL, 2018 WL 3795238, at *68 (D. Nev. July 31, 2018). Google’s preservation
`
`-5-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 10 of 17
`
`
`
`efforts—which included automatic preservation for “history on” chats, hold instructions regarding
`chats, and automatic preservation for other categories of ESI—were reasonable and proportional,
`particularly considering the typical use of chats for non-substantive purposes, (see supra, at p. 3).
`Plaintiffs’ authorities do nothing to support their Motion, beginning with their misplaced
`reliance on Apple, Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132 (N.D. Cal. 2012)—a case that
`was decided before Rule 37(e) was amended to emphasize proportionality in the wake of case law
`that “caused litigants to expend excessive effort and money on preservation in order to avoid the
`risk of severe sanctions if a court finds they did not do enough.” Fed. R. Civ. P. 37, cmt. (2015).
`In any event, Google’s preservation efforts differ markedly from the defendant’s conduct in
`Samsung, where after previously being sanctioned for failing to preserve emails in another matter,
`Samsung “failed to send litigation hold notices . . . beyond a select handful of employees” for
`seven months after litigation became reasonably foreseeable, with thousands of employees left to
`delete potentially relevant emails during that time frame. Samsung, 881 F. Supp. 2d at 1147. This
`is a far cry from Google’s efforts that began in earnest at the very beginning of the litigation,
`including consistent reminders to custodians about their preservation obligations. Notably,
`Plaintiffs do not argue that Google’s litigation hold was untimely. Moreover, Samsung also
`involved the preservation of email communications, which are often used for substantive business
`purposes and are automatically preserved by Google. See id. at 1138-39.
`Plaintiffs’ only other authorities are likewise distinguishable. In Glaukos Corp. v. Ivantis,
`Inc., No. SACV 18-620 JVS (JDEx), 2020 WL 10501850, at *4 (C.D. Cal. June 17, 2020), a party
`failed to suspend the automatic deletion of all e-mail for eight years. Similarly, in WeRide Corp.
`v. Kun Huang, the company “had not turned off an auto-delete setting on the company’s email
`server leading to the company-wide destruction of emails” and had “wiped the[] laptops and
`deleted the[] email accounts” of employees who left the company. No. 5:18-cv-07233-EJD, 2020
`WL 1967209, at *3, *8 (N.D. Cal. Apr. 24, 2020) (emphasis added). In sum, Plaintiffs fall far
`short of establishing that Google’s preservation efforts were not reasonable.
`
`
`
`
`
`-6-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 11 of 17
`
`
`
`Plaintiffs Fail to Demonstrate That They Suffered Any Prejudice.
`B.
`Plaintiffs fall far short of establishing that Google’s chat preservation policy has somehow
`“impaired [their] ability to go to trial or threatened to interfere with the rightful decision of the
`case.” Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (alterations in original) (quoting
`U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 604 (9th Cir.
`1988)). If anything, Google’s efforts here facilitated Plaintiffs’ discovery of relevant information.
`Google produced millions of internal documents. These documents provide a detailed
`record of Google’s business strategy and decisions, its product design, its dealings and
`negotiations with third-parties, and its financial records. Particularly relevant for an antitrust case,
`Google also produced over one hundred unique datasets, including extensive transactional data,
`for many years, which comprises 13 terabytes of data. Plaintiffs’ experts have relied upon these
`documents in their nearly 2000 pages of expert reports—many of which recite Google documents
`at length. Plaintiffs also relied on Google’s extensive productions to move for class certification,
`brief a Preliminary Injunction motion, and depose dozens of Google witnesses, belying any
`prejudice argument.3
`With this extensive record, Plaintiffs fail to articulate why key evidence would be buried in
`the midst of chats regarding lunch plans and meeting requests. Because Google preserved over
`176,000 chats, those messages were searched and reviewed: less than 1.8% were produced as
`responsive, showcasing how chats are largely a fishing expedition for irrelevant information that
`does nothing to bolster Plaintiffs’ claims.
`To argue that they were prejudiced, Plaintiffs point to three chats about YouTube and
`Google Play billing, app distribution competition, and sideloading. Mot. at 8-9. Those chats
`
`
`3 This is also why Plaintiffs have not demonstrated the second of the three requirements under
`Rule 37(e), that the chats cannot be “replaced” through existing discovery. As recognized by the
`Advisory Committee Notes to the 2015 Amendment: “[T]he content of the lost information may
`be fairly evident, the information may appear to be unimportant, or the abundance of preserved
`information may appear sufficient to meet the needs of all parties. ” Fed. R. Civ. P. 37 advisory
`committee’s note to 2015 amendment (emphasis added); see also Sanchez v. Jiles, 2012 WL
`13005996, at *14 (C.D. Cal. June 14, 2012) (“The fact that other evidence exists that duplicates or
`serves the same function as the evidence that was purportedly lost therefore weighs further against
`the admission of evidence of the spoliation and against giving the jury a spoliation instruction.”).
`
`-7-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 12 of 17
`
`
`
`were, of course, preserved and produced, reinforcing the reasonableness of Google’s preservation
`efforts. But even had they not been preserved, Plaintiffs have countless other documents
`regarding these issues. For example, Plaintiffs’ experts point to numerous internal documents
`about app distribution competition, Google Play billing, and sideloading. See, e.g., Giulianelli
`Decl. in Support of Consumer Plaintiffs’ Mot. for Class Cert. Ex. 4 (D. Schmidt Class Cert. Rep.
`at 22-23, 28), ECF No. 250-6; Id. at Ex. 2 (H. Singer Class Cert. Rep. at 101-103, 266), ECF No.
`250-4.
`Plaintiffs’ reliance on Lokai Holdings LLC v. Twin Tiger USA LLC, No. 15cv9363 (ALC)
`(DF), 2018 WL 1512055 (S.D.N.Y. Mar. 12, 2018), is thus misplaced. The court in that case
`rejected an adverse inference and refused to grant any jury instruction regarding the loss of
`evidence unless the party could show “material gaps in the records” of its adversary’s financial
`information that would harm its ability to prove damages. Id. at *17. Unlike Lokai, Plaintiffs here
`have failed to identify a gap in any information needed to prosecute their claims–nor could they,
`having received over 21 million pages of discovery. Where Plaintiffs’ “own evidentiary
`presentation shows that [they have] not been so prejudiced as to preclude [them] from pursuing”
`their claims, their claim to have been “greatly hindered” in proving their case “is overly
`conclusory and unpersuasive.” See id. at *13.
`Similarly, Plaintiffs’ authority, Matthew Enterprise, Inc. v. Chrysler Group LLC, No. 13-
`cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016), actually supports Google’s position
`that Plaintiffs did not suffer the prejudice required for sanctions. The Court in that case found no
`prejudice where a party deleted internal e-mails where, as here, the other party had “not come
`forward with plausible, concrete suggestions about what the internal emails might have
`contained.” Id. at *4 (internal quotation marks omitted). The court found prejudice only as to
`external communications because the case “hinge[d] on . . . negotiations with customers and the
`reasons that customers chose other dealerships,” and the “customer contact information and
`salespeople’ shorthand notes” were “not nearly as valuable as what salespeople and customers
`actually said.” Id.
`
`
`
`
`
`-8-
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SANCTIONS
`Case Nos. 3:21-md-02981-JD; 3:20-cv-05671-JD; 3:20-cv-05761-JD; 3:21-cv-05227-JD; 3:22-cv-02746-JD
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:22-cv-02746-JD Document 86 Filed 11/03/22 Page 13 of 17
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`C.
`
`Plaintiffs Fail to Show that Google Intended to Deprive Plaintiffs of
`Information.
`To obtain the severe sanction of an adverse inference instruction, Plaintiffs must establish
`that Google “acted with the intent to deprive another party of the information’s use in the
`litigation,” Fed. R. Civ. P. 37(e)(2) (emphasis added). “Negligent or even grossly negligent
`behavior” is insufficient. Fed. R. Civ. P. 37, Advisory Committee Notes (2015); see e.g.,
`Youngevity Int’l v. Smith, No. 3:16-cv-704-BTM-JLB, 2020 WL 7048687, at *4 (S.D. Cal. July
`28, 2020). This is because the “premise” of an adverse inference instruction is that a party’s
`“intentional loss or destruction of evidence to prevent its use in litigation” supports a “reasonable
`inference that the evidence was unfavorable to the party.” Fed. R. Civ. P. 37, Advisory
`Committee Notes (2015).
`Plaintiffs do not come close to showing Google acted with the intent to deprive plaintiffs
`of evidence. To the contrary, the record shows that Google worked to preserve relevant evidence:
`Google (a) ensured that “history on” chats are automatically preserved, (b) provided users with a
`way to set history on for any potentially relevant chats, and (c) provided relevant employees with
`litigation hold instructions—and multiple reminders—on chat preservation. See, e.g., Function
`Media, L.L.C. v. Google, Inc., No. 2:07–cv–279–CE, 2011 WL 4017953, at *3 (E.D. Tex. Sept. 9,
`2011) (no spoliation jury instruction necessary where Google inst