While this doesn't necessarily mean that Google will be sanctioned for the systematic deletion of company-internal chats, the plaintiffs in the Google Play antitrust case in the Northern District of California have achieved a potential breakthrough:
Less than a week after the plaintiffs filed their reply brief in support of their motion for discovery sanctions, Judge James Donato of the United States District Court for the Northern District of California has determined that this matter is worthy of further scrutiny. An evidentiary hearing that is anticipated to "go for no more than 3 hours" will be held on January 10, 11, or 12. It's like a discovery-specific minitrial (in court, not arbitration where the term is used more frequently).
Judge Donato's order lays out the agenda as follows:
"In addition to anything else the parties would like to present at the hearing, the Court anticipates testimony by Google witnesses about the use and operation of the electronic chat system, including storage and deletion policies, guidelines for chat content, and examples of typical chat communications. Google will present this information through direct examinations of the witnesses, and plaintiffs will cross-examine. The Court will hear argument on the discovery dispute immediately after the close of evidence." (emphasis added)
In my commentary on the reply brief I said it was difficult to form an opinion on the merits of the motion from the outside: some key passages (quoting testimony) were sealed. What I deduce from the order is that what Judge Donato has seen is serious enough that evidence must be taken. And it appears to be too relevant for the court to just deny the motion on the papers. At the same time, the plaintiffs' preferred sanction, which would be an adverse inference--not like a procedural equivalent of the death penalty, but incisive and impactful. Before the court could do that, Google is given another chance to justify its conduct. But above all, it's a chance for three dozen U.S. states, Epic Games, Match Group, and the consumer class-action plaintiffs to argue that an adverse inference is warranted (or, as a fallback position, a curative instruction).
If not for the Epic Games v. Apple appellate hearing on my Monday (initial commentary considering a remand the most likely outcome; and a follow-up explaining why "failure of proof" is a hurdle that I believe Epic can overcome), this decision to hold an evidentiary hearing over the systematic and automatic deletion of Google Chats would be the most significant development in the App Store antitrust lawsuits this week.
