Memorandum in Support re [217] MOTION to Seal Exhibits and Portions of Appendix and Memorandum in Support of Motion to Compel filed by Commonwealth of Virginia, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Illinois, State of Michigan, State of Minnesota, State of Nebraska, State of New Hampshire, State of New Jersey, State of New York, State of North Carolina, State of Rhode Island, State of Tennessee, State of Washington, State of West Virginia, United States of America. (Teitelbaum, Aaron)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO SEAL
Pursuant to Local Civil Rule 5, Plaintiffs, through their undersigned counsel, hereby
respectfully submit the instant memorandum of law in support of their motion to seal portions of
their Memorandum of Law in Support of Plaintiffs’ Motion for In Camera Inspection and To
Compel Production of Documents Wrongfully Withheld as Privileged, portions of the appendix
to the motion, and the exhibits referenced therein. These exhibits and the redactions in the brief
and appendix contain information designated by Defendant Google or non-party Lazard Frères &
Co. LLC as confidential or highly confidential under the parties’ protective order (Dkt. 98 ¶ 23).
The unredacted appendix, the exhibits, and the unredacted brief have been filed electronically
using the sealed filing events at Dkts. 218-220, the redacted brief is filed on the public docket at
Dkt. 215, and the redacted appendix is filed at Dkt. 214-1.
INTRODUCTION
Plaintiffs’ Memorandum of Law references, among other exhibits: (i) documents
produced by Google during the course of the United States’ pre-complaint investigation and
designated by Google as highly confidential; 1 (ii) transcripts of depositions of Google employees
Google branded all documents produced in response to the United States’ civil investigative
demands with a “highly confidential” label.Page 2 PageID#
designated by Google as highly confidential; (iii) a document produced by non-party Lazard and
designated by Lazard as highly confidential; (iv) correspondence from Google to the United
States designated by Google as confidential; and (v) correspondence from the United States to
Google referencing documents, deposition testimony, and correspondence designated by Google
as confidential or highly confidential. Pursuant to paragraph 23 of the Protective Order (Dkt. 98),
through this motion Plaintiffs inform the Court of the confidentiality designations of these
materials and requests that the Court seal these exhibits from the public docket, and maintain the
redacted brief on the public docket, in order to provide Google and Lazard sufficient time to
provide the Court with support for the need to seal these documents. But for the requirements of
the Protective Order, Plaintiffs would not seek to seal these documents.
ARGUMENT
Public access to judicial records is “protected both by the common law and the First
Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The
common law presumes a right of the public to inspect and copy ‘all judicial records and
documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The
common law presumption in favor of public access can be overcome only by a showing that a
litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a
document, a district court must “(1) provide public notice of the request to seal and allow
interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to
sealing the document[], and (3) provide specific reasons and factual findings supporting its
decision to seal the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., F.3d 288, 302 (4th Cir. 2000); see also Local Civ. R. 5(C).Page 3 PageID#
Plaintiffs do not believe the information referenced in their memorandum or the exhibits
cited therein is of a type that outweighs the presumption in favor of public access. Nonetheless,
because the material was designated as confidential or highly confidential by Google and Lazard,
Plaintiffs have filed the present motion in accordance with their obligations under paragraph of the Protective Order. As stated in the notice filed concurrently with this memorandum, any
interested member of the public and any other party may indicate their position on the motion.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court seal Dkts. 218220, and permit the redacted version of Plaintiffs’ brief and appendix (Dkts. 214-1 and 215) to
remain on the public docket.Page 4 PageID#
Dated: May 19, Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 307-Fax: (202) 616-Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA Telephone: (804) 692-Facsimile: (804) 786-Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 221 Filed 05/19/23 Page 1 of 4 PageID# 1913
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO SEAL
Pursuant to Local Civil Rule 5, Plaintiffs, through their undersigned counsel, hereby
respectfully submit the instant memorandum of law in support of their motion to seal portions of
their Memorandum of Law in Support of Plaintiffs’ Motion for In Camera Inspection and To
Compel Production of Documents Wrongfully Withheld as Privileged, portions of the appendix
to the motion, and the exhibits referenced therein. These exhibits and the redactions in the brief
and appendix contain information designated by Defendant Google or non-party Lazard Frères &
Co. LLC as confidential or highly confidential under the parties’ protective order (Dkt. 98 ¶ 23).
The unredacted appendix, the exhibits, and the unredacted brief have been filed electronically
using the sealed filing events at Dkts. 218-220, the redacted brief is filed on the public docket at
Dkt. 215, and the redacted appendix is filed at Dkt. 214-1.
INTRODUCTION
Plaintiffs’ Memorandum of Law references, among other exhibits: (i) documents
produced by Google during the course of the United States’ pre-complaint investigation and
designated by Google as highly confidential; 1 (ii) transcripts of depositions of Google employees
1
Google branded all documents produced in response to the United States’ civil investigative
demands with a “highly confidential” label.
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 221 Filed 05/19/23 Page 2 of 4 PageID# 1914
designated by Google as highly confidential; (iii) a document produced by non-party Lazard and
designated by Lazard as highly confidential; (iv) correspondence from Google to the United
States designated by Google as confidential; and (v) correspondence from the United States to
Google referencing documents, deposition testimony, and correspondence designated by Google
as confidential or highly confidential. Pursuant to paragraph 23 of the Protective Order (Dkt. 98),
through this motion Plaintiffs inform the Court of the confidentiality designations of these
materials and requests that the Court seal these exhibits from the public docket, and maintain the
redacted brief on the public docket, in order to provide Google and Lazard sufficient time to
provide the Court with support for the need to seal these documents. But for the requirements of
the Protective Order, Plaintiffs would not seek to seal these documents.
ARGUMENT
Public access to judicial records is “protected both by the common law and the First
Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The
common law presumes a right of the public to inspect and copy ‘all judicial records and
documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The
common law presumption in favor of public access can be overcome only by a showing that a
litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a
document, a district court must “(1) provide public notice of the request to seal and allow
interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to
sealing the document[], and (3) provide specific reasons and factual findings supporting its
decision to seal the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218
F.3d 288, 302 (4th Cir. 2000); see also Local Civ. R. 5(C).
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 221 Filed 05/19/23 Page 3 of 4 PageID# 1915
Plaintiffs do not believe the information referenced in their memorandum or the exhibits
cited therein is of a type that outweighs the presumption in favor of public access. Nonetheless,
because the material was designated as confidential or highly confidential by Google and Lazard,
Plaintiffs have filed the present motion in accordance with their obligations under paragraph 23
of the Protective Order. As stated in the notice filed concurrently with this memorandum, any
interested member of the public and any other party may indicate their position on the motion.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court seal Dkts. 218220, and permit the redacted version of Plaintiffs’ brief and appendix (Dkts. 214-1 and 215) to
remain on the public docket.
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 221 Filed 05/19/23 Page 4 of 4 PageID# 1916
Dated: May 19, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-0077
Fax: (202) 616-8544
Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA 23219
Telephone: (804) 692-0485
Facsimile: (804) 786-0122
Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
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