Google Chrome’s customer support page says that when internet users browse in Incognito mode, neither the information they enter in forms nor their browsing history, cookies and site data are saved on their device. While Incognito mode may prevent other users on the same device from seeing this information, it did not keep Google from illegally collecting private user information, according to Brown, et al., v. Google, LLC, a federal court suit filed in California in June 2020.

The complaint alleges that a class of likely millions of users who browsed the internet in Incognito since June 1, 2016, is owed at least $5,000 of damages per user for violations of federal wiretapping and California privacy laws.

During discovery, the plaintiffs accused Google of concealment of key employees and data and eventually spoliation of that data. U.S. Magistrate Judge Susan van Keulen ultimately agreed, indicating that while Google probably had not acted in bad faith, the conduct was so egregious as to merit monetary sanctions in the form of attorneys’ fees and costs incurred by plaintiffs’ counsel in bringing the sanctions motion.  

Because some discovery orders were filed under seal, it is unclear whether Van Keulen imposed non-monetary sanctions to bar Google from asserting particular arguments in the litigation, but a statement that Google’s attorney Andrew Schapiro made to Blomberg Law suggests no additional sanctions.  

Van Keulen deducted about $100,000 from the amount the plaintiffs requested, shaving off about $22,000 billed by attorneys that spent 10 hours or less on the case; about $20,000 for time spent on computer research; and about $53,000 for review of the document production, as counsel would have had to review the production even absent any misconduct by Google.

The magistrate judge did approve reimbursement for time billed by the chairman of the plaintiffs’ firm at an hourly rate of $1,950, despite questions raised by Google’s attorneys as to whether the chairman’s work on the sanctions motion was necessary. In a statement, the chairman told Bloomberg Law that the sanctions were commensurate with Google’s serious misconduct in failing to comply with its discovery obligations, misleading the plaintiffs and the court, occluding the identities of key personnel, and concealing, then destroying, key documents.

The amount of the monetary sanction may be striking, but it’s also illustrative of the significant time and money investment that plaintiffs’ representatives make in their cases. Demands on that investment can grow exponentially when lawyers must work to uncover and prove defendants’ discovery misconduct.  

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