Federal Judge Orders Epic v. Google Settlement Talks, Plans New Google Investigation

The federal judge overseeing Epic v. Google has ordered the two firms to seek a settlement before the jury returns with a verdict. And he’s not happy with Google’s purposeful destruction of evidence in the case, and he has vowed to open a new investigation

Epic and Google are now facing off in court, and it’s fair to say that the online giant is not faring as well as did Apple when it went to court against Epic previously for nearly identical antitrust charges. And when U.S. district judge James Donato discovered that the two companies had never formally tried to settle their dispute earlier last week, he ordered them to hold settlement talks before the jury convenes to reach a verdict.

The judge also appeared to approve of two Epic settlement requirements, that Google allow Epic and other third parties to open unrestricted app and game stores on Android and use their own billing systems for in-app and in-game purchases. And he noted that since Spotify has a special deal with Google that lets it use its own billing system, a similar agreement between Epic and Google was possible. Google now has until Monday to provide a “detailed response” to Epic’s requirements. The two firms must then hold an in-person settlement conference.

But things got even worse for Google on Friday when the judge lashed out at the company for systematically destroying evidence related to this case and the separate U.S. v. Google antitrust case with the U.S. Department of Justice.

“This conduct is a frontal assault on the fair administration of justice,” Judge Donato said Friday. “It undercuts due process. It calls into question [the] just resolution of legal disputes. It is antithetical to our system … I am going to get to the bottom of who is responsible … on my own, outside of this trial.”

The outburst was triggered by repeated mentions of Google’s in-house policy of automatically deleting all internal chats between employees. Multiple Google executives, from CEO Sundar Pichai on down, have admitted to not disabling the auto-delete function even after being informed of their legal requirement to do so. Pichai was also among those at Google who also admitted that they routinely marked documents as legally privileged to keep them secret from court proceedings.

Judge Donato demanded that Google’s chief legal officer, Kent Walker, explain this behavior, but this went poorly as well, with Donato accusing Walker of “tap-dancing” around the questions.

“It is deeply troubling to me as a judicial officer of the United States [that Google did this],” the Judge said. “This is the most serious and disturbing evidence I have ever seen in my decade on the bench with respect to a party intentionally suppressing relevant evidence.”

Donato said that he would instruct the jury about Google’s auto-delete chat policies.

“The best course of action is for the jury itself to decide whether it will make an inference [that evidence specific to this case was destroyed],” he said. “I am not going to constrain the jury’s discretion by making that inference for them. Even though it would be well within bounds to issue a mandatory inference instruction, I can pursue these issues on my own, outside of this trial, in subsequent trials.”

Mr. Walker told Donato that chat auto-delete is now disabled by default for all Google employees.