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Judge Donato has dismissed Google’s Kent Walker. “What are we going to do about this?” he asks.

It feels like the judge has made up his mind to some degree. He’s asking Epic what it believes would be a sufficient remedy, and Epic is asking for a mandatory jury instruction.

In September, Epic had simply proposed a “permissive” jury instruction: “that the jury may, if it chooses, infer that the evidence Google destroyed would have been harmful to Google’s case and helpful to Plaintiffs’ cases.”

But Judge Donato is not 100 percent sure what good the mandatory instruction will do.