Three advocacy groups are trying to amp up the pressure on Google for allegedly destroying company records. The American Economic Liberties Project, Check My Ads, and the Tech Oversight Project are urging the State Bar of California to investigate Kent Walker, Google’s President of Global Affairs and a member of the Bar. They claim Walker “coached” the company “to engage in widespread and illegal destruction of records relevant to multiple ongoing federal trials.”
In a letter shared exclusively with The Verge, the groups point to a 2008 memo Walker sent to employees while he served as general counsel. The so-called Walker Memo was highlighted in the Department of Justice’s recent antitrust trial, one of multiple cases where Google has been accused of obscuring potentially incriminating documents. The memo referenced “several significant legal and regulatory matters” Google faced at the time as the rationale for a new policy limiting employee chat message retention. The DOJ claimed it marked a turning point for company secrecy — as Google changed the default setting on chats from “history on” to “history off.”
In a legal filing in the ad tech case, Google dismissed the memo as an old document irrelevant to its evidence retention policies for that case. “[T]he memo was not only written 11 years before DOJ opened its investigation or any duty to preserve existed, but also instructs employees to take steps to preserve relevant Chat messages if they are subject to a litigation hold. That is the opposite of an intent to destroy evidence.”
But Google employees “understood the goal was to remove information that might be discoverable at trial,” the advocacy groups write in their letter to the Bar. Walker also allegedly advised the company implement a “communicate with care” policy, which instructed employees to do things like gratuitously invoke attorney-client privilege on sensitive emails.
Google’s record-keeping has become a regular line of argument against it in court. In at least three trials, including a suit filed by Epic Games and two brought by the DOJ, the company’s opponents have argued that its lack of conversation records should count against it. The recent Google ad tech trial saw government attorneys repeatedly flash documents marked with “privileged and confidential,” as witnesses struggled to explain why lawyers had been looped into email threads. Though Google employees often testified that history-off chats were just for water cooler-type conversation, several acknowledged that they at least occasionally had substantive business conversations on them.
The company’s practices haven’t won it any favors in court, but judges have stopped short of serious consequences so far. Judge James Donato told Epic v. Google jurors they could assume Google deleted important documents, though he didn’t go as far as saying they should assume Google deleted evidence that would make it look bad. (Google lost the case and is appealing.) In the DOJ’s search antitrust trial, Judge Amit Mehta declined to impose sanctions on Google, but he warned the company that it “may not be so lucky” in its next case.
“We take seriously our obligations to preserve and produce relevant documents,” Google spokesperson Peter Schottenfels said in a statement. “Our legal team has for years responded comprehensively to inquiries and litigation. In the DOJ cases alone, we produced millions of documents, including emails, chat messages, and other materials.”
The advocacy groups seek to hold Walker, a Google executive who frequently publicly defends Google from antitrust charges, responsible for his part in the secrecy. “At minimum, Mr. Walker’s failure to ‘take affirmative steps to preserve and safeguard relevant evidence’ is conduct unbecoming of an attorney licensed by the California State Bar,” says the letter. “The behavior is plainly unethical and violates both California State Law and Walker’s ethical obligations as a member of the California State Bar.” They urged the Bar’s chief trial counsel to investigate Walker and any other California attorneys at Google or outside counsel that were aware of the policies. They are calling for the Bar “to take swift action to penalize Mr. Walker to the full extent of the law.”
Disciplinary actions can include suspension or, in extreme cases, disbarment. All these measures are relatively rare. In fiscal year 2023, it says it opened 17,000 cases, but only 243 attorneys were ultimately disciplined, including 76 disbarments.
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