Abigail Slater, head of the Antitrust Division at the Department of Justice, did not mince words when describing the lengths to which some in Big Tech and Big Law will go to frustrate the antitrust enforcement process. She shared a growing frustration within the Division over “tactics that undermine the investigation process,” ranging from gamesmanship with privilege assertions to outright obstruction.

The Assistant Attorney General expressed concerns and warnings in Columbus, Ohio, last week during a speech to the Federalist Society’s Ohio State Law School Student Chapter and the Columbus Lawyers Chapter.

Slater said the Division’s patience for delays and evasions has worn thin. Citing recent litigation as an example, she said a court decision not to sanction Google for failing to preserve evidence in the form of chat data. This “should not be understood as condoning Google’s failure to preserve chat evidence. Any company that puts the onus on its employees to identify and preserve relevant evidence does so at its own peril. Google avoided sanctions in this case. It may not be so lucky in the next one.” To help combat these tactics, Slater announced the creation of a task force named “Comply with Care,” charged with investigating and responding to discovery abuses and privilege misuses.

“Obstruction and gamesmanship, such as incomplete disclosures and delay tactics, erode the integrity and efficiency of antitrust enforcement.”

This warning signals a hardening stance against what she called “systemic disregard of the evidentiary rules regarding spoliation of evidence and… misuse of the attorney-client privilege” by powerful legal teams representing the tech industry. Slater cited litigation and settlements that demonstrate the cost of obstruction: “Obstruction and gamesmanship, such as incomplete disclosures and delay tactics, erode the integrity and efficiency of antitrust enforcement.” In short, the Division is not just watching for substantive violations of the Hart-Scott-Rodino Act, but also for process abuses that can slow, obfuscate, or undermine the government’s review.

Slater’s address closed saying “enforcement is a two-way street,” that “fairness is expected from both the Division and the parties involved.” For those who would test the limits of the law, Slater’s message was unmistakable: the era of gamesmanship and calculated obstruction are coming to an end.

Private Antitrust Litigants Fight the Power

The challenges Big Tech and Big Law pose to the government also face private antitrust litigants. Private parties challenging anti-competitive behavior meet obstacles that are magnified by a relative lack of resources, limited access to information, and the absence of direct enforcement tools available to agencies.

Private plaintiffs also contend with delays, incomplete document productions, and privilege gamesmanship, frequently without the leverage to impose penalties or expedite discovery. Any expectation of something close to fair dealing in the litigation context goes up in smoke for those not backed by governmental authority.

It may be an idealistic expectation, but the concept (some would say fantasy) of “fair litigation” must be at least aspirational in a nation of laws. The rights of private litigants are equally important to those enjoyed by agencies to the functioning and protection of competitive markets. So, Slater’s call for fairness, transparency, and accountability becomes all the more urgent, as the pursuit of justice for private parties hinges on the same principles driving her enforcement, but with far fewer hammers at their disposal.

Edited by Tom Hagy for Mogin Law LLP.