(Bing Clip Art via Barry Law School)
The Google case discussed here on Wednesday, July 12, 2023 continued on. On March 28, 2023 the Court once again declined the opportunity, as it had previously declined the same opportunity earlier in this case, "to issue terminating sanctions against Google." Quite simply, the Court remained inclined to decide the antitrust case before it on grounds other than Google's "lost Chat communications." In re Google Play Store Antitrust Litig., ___ F. Supp. 3d ___, No. 21-md-02981-JD, 2023 WL 2673109, at *10 (N.D. Cal. March 28, 2023).
The Court was equally inclined, however, to sanction Google for its performance in discovery in that case. What non-monetary sanctions would be appropriate will have to await further proceedings, the Court held:
The determination of an appropriate non-monetary sanction requires further proceedings. The Court fully appreciates plaintiffs’ dilemma of trying to prove the contents of what Google has deleted. Even so, the principle of proportionality demands that the remedy fit the wrong, and the Court would like to see the state of play of the evidence at the end of fact discovery. At that time, plaintiffs will be better positioned to tell the Court what might have been lost in the Chat communications.
In re Google Play Store Antitrust Litigation, 2023 WL 2673109, at *10 (emphasis supplied).
Not so with respect to monetary sanctions. In that regard, the remedy was clear and it fit the wrong with comparative ease, in the eyes of this Court:
For monetary sanctions, it is entirely appropriate for Google to cover plaintiffs’ reasonable attorneys’ fees and costs in bringing the Rule 37 motion, including the joint statement that preceded the motion and the evidentiary hearing and related events. Plaintiffs are directed to file ... a statement of proposed attorneys’ fees and costs with adequate documentation. The parties will meet and confer on the proposal ....
In re Google Play Store Antitrust Litigation, 2023 WL 2673109, at *10 (emphasis supplied).
More is undoubtedly yet to come.
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