Holding back documents as evidence is a big court problem – Image Credit: Pavel Danilyuk/Pexels
Big tech’s lawyers are doing an great deal of work to protect companies like Apple, Google, and Amazon, and there’s a new trend of turning attorney-client privilege into a sketchy legal strategy.
Apple’s constant legal wrangling has caused a lot of work for its lawyers, just like many other tech giants. However, big tech legal battles are now so massive and important to the company’s bottom line that new legal tactics need to be employed.
In a profile of how the major courtroom fights have played out, The Wall Street Journal alleges that the legal teams of big tech outfits are enabling the companies to hide evidence. Or at the very least, delay handing over requested documents until the last possible moment.
This is a tactic Apple has certainly demonstrated, but one that is becoming more prevalent in similar legal battles.
Purposeful misrepresentations
The most recent and egregious example of this was uncovered at the start of May, as part of Apple’s ongoing App Store fight with Epic Games. Judge Yvonne Gonzalez Rogers ruled at the time that Apple had violated a 2021 injunction to remove anti-steering barriers, but also over deception on Apple’s side.
It was determined by Judge Rogers that Apple VP of Finance Alex Roman “outright lied” to the court. The lie was to maintain the belief that evidence of internal discussions about a 27% commission fee for purchases linked to the App Store were real, but really it was not.
Rogers warned that Apple’s handling was deceptive to the court and forced the executive into the lie. Instead, Apple presented evidence of internal discussions that were “tailor-made for litigation,” rather than what was actually discussed.
Business documents later revealed that Apple knew what it was doing, that it went for the most anti-competitive option at every turn, and that Roman “outright lied under oath” to cover it up.
Apple was also accused of withholding documentation about a June 2023 meeting involving CEO Tim Cook concerning the 2021 court order. The meeting’s existence was shielded from the court until 2025.
Rogers admonished Apple, accusing it of abusing its privilege to avoid sharing those documents. This was particularly in instances where the decisions involved senior executives, seemingly to protect them.
As a result, Rogers referred the case for potential criminal contempt charges, both against Roman and Apple.
A growing problem
The instance with Apple is only one of a number of instances where Big Tech lawsuits are affected by attempts to hide documents or to protect executives from harm.
The report points to instances such as Amazon facing the prospect of sanctions. In that lawsuit against the Federal Trade Commission, it allegedly withheld thousands of business records, which supposedly included some that impacted founder Jeff Bezos.
The FTC referred to Amazon’s actions as being a “systemic abuse of privilege.” Amazon later withdrew 92% of its legal claims, and produced approximately 70,000 withheld documents.
Meanwhile, in Google’s own fight against Epic Games in 2023, it was ruled that the search giant hadn’t properly preserved evidence for that case. Internal chat messages that should’ve been saved were not.
Unusually, Alphabet’s top lawyer testified that Google took its obligations on preserving evidence seriously. The judge disagreed, and called the testimony evasive and inconsistent with other witnesses.
At the time, Judge James Donato said it was “the most serious and disturbing case I have ever seen in my decade on the bench” when it comes to intentional evidence suppression.
Penalty better than the truth
Evidently, it seems that massive companies feel that the penalties of not playing ball with the courts are lesser than providing evidence of a more damning reality.
Former FTC deputy director and University of Miami law professor John Newman believes that the lawyers should be telling the companies off for such behavior, but they simply don’t anymore. “They aren’t even failing that duty,” he declares. “They are actively encouraging this stuff.”
This behavior and encouragement creates a “culture of lawlessness,” Newman continues, which wouldn’t necessarily have existed if the big tech companies weren’t considered “crown jewels” to the country.
While the activity could be plausibly considered sloppiness in handling a highly complex case, albeit faintly, it’s probably more on purpose.
Antitrust lawyer Megan Gray proposes that it’s down to “rich privilege.” At this level, Gray offers that the lawyers employed by big tech may feel invulnerable for crossing lines, as the consequences may not seem to be tough enough to care.
The lawyers are well paid enough that “the worst possible consequences are that you get disbarred,” Gray reasons.
While the punishments for disobeying the court can be extremely painful for individuals and smaller companies, it seems that they don’t scale up enough to worry such massive companies and the lawyers who work for them.
