I thought we were done — but we came back to decide a few last things.
First, Google tried to argue Epic didn’t have enough evidence for a jury to win. Judge Donato dismissed that, saying he saw “more than enough evidence for the jury to find for plaintiff on each of their claims.”
Second, Judge Donato says the whole jury verdict will follow the rule of reason standard — no per se, not even for the Activision Blizzard Project Hug deal.
Third and perhaps most intriguingly, Judge Donato says he has has been “forced” to investigate Google, on his own, outside of this trial, for conducting “a frontal assault on the fair administration of justice” by intentionally deciding not to preserve chats. But he also says he will let the jury decide to infer whether Google destroyed evidence in this case — he will not issue a mandatory inference instruction in this trial, he says.
He has decided “the best course of action is for the jury itself to decide whether it will make an inference. I am not going to constrain the jury’s discretion by making that inference for them,” he says.
We’re still hearing more argument over jury instructions — I’ll update this post if there’s more that feels notable.