Judge James Donato is overseeing Epic v. Google<\/em><\/a>, a case that could determine the future of the Android app store \u2014 but testimony in this case may have more repercussions for Google too. <\/p>\n<\/div>\n On Friday, Judge Donato vowed to investigate Google for intentionally and systematically suppressing evidence, calling the company\u2019s conduct \u201ca frontal assault on the fair administration of justice.\u201d We were there in the courtroom for his explanation.<\/p>\n<\/div>\n \u201cI am going to get to the bottom of who is responsible,\u201d he said, saying he would pursue these issues \u201con my own, outside of this trial.\u201d<\/p>\n<\/div>\n Testimony in the Epic v. Google<\/em> trial \u2014 and in a parallel DOJ antitrust suit against Google in Washington, DC<\/a> \u2014 revealed that Google automatically deleted chat messages between employees, and that employees all the way up to CEO Sundar Pichai intentionally used that to make certain conversations disappear. Pichai, and many other employees, also testified they did not change the auto-delete setting<\/a> even after they were made aware of their legal obligation to preserve evidence. <\/p>\n<\/div>\n And Pichai, among other employees, admitted that they marked documents as legally privileged<\/a> just to keep them out of other people\u2019s hands.<\/p>\n<\/div>\n On November 14th, Pichai told the court <\/a>that he relied on his legal and compliance teams to instruct him properly, particularly Alphabet chief legal officer Kent Walker \u2014 and so Judge Donato hauled Walker into court two days later. <\/p>\n<\/div>\n But the judge was not satisfied with Walker\u2019s testimony<\/a>, either, accusing him of \u201ctap-dancing around.\u201d <\/p>\n<\/div>\n Walker said he never attempted to audit<\/a> whether employees were actually retaining evidence \u2014 it was left up to individual employees to decide which communications might be relevant to a legal case, and more than one employee testified in court they had the wrong idea of what was relevant. <\/p>\n<\/div>\n \u201cThe most serious and disturbing evidence I have ever seen in my decade on the bench\u201d<\/p>\n<\/div>\n<\/div>\n Today, Judge Donato said it was \u201cdeeply troubling to me as a judicial officer of the United States\u201d that Google acted this way, calling it \u201cthe most serious and disturbing evidence I have ever seen in my decade on the bench with respect to a party intentionally suppressing relevant evidence.\u201d<\/p>\n<\/div>\n \u201cThis conduct is a frontal assault on the fair administration of justice. It undercuts due process. It calls into question just resolution of legal disputes. It is antithetical to our system,\u201d said Judge Donato.<\/p>\n<\/div>\n And yet, the judge decided today that he would not issue a \u201cmandatory inference instruction\u201d \u2014 one that would tell the jury they should proceed with the understanding that Google destroyed evidence that could have been detrimental to its case. <\/p>\n<\/div>\n Instead, there will be a \u201cpermissive\u201d jury instruction \u2014 the jury \u201cmay\u201d infer that the missing evidence might have helped Epic and hurt Google. <\/p>\n<\/div>\n \u201cThe best course of action is for the jury itself to decide whether it will make an inference. I am not going to constrain the jury\u2019s discretion by making that inference for them,\u201d he said. <\/p>\n<\/div>\n \u201cEven though it would be well within bounds to issue a mandatory inference instruction,\u201d said Judge Donato, \u201cI can pursue these issues on my own, outside of this trial, in subsequent trials.\u201d<\/p>\n<\/div>\n \u201cI am going to get to the bottom of who is responsible,\u201d he said. \u201cThat is going to be separate and apart from anything that happens here, but that day is coming.\u201d<\/p>\n<\/div>\n Google declined to comment to The Verge<\/em> on Judge Donato\u2019s statements.<\/p>\n<\/div>\n Today, Epic and Google rested their case in Epic v. Google<\/em>. We\u2019ll be returning on December 11th <\/a>for closing arguments and jury instructions.<\/p>\n<\/div>\n<\/div>\n