MOTION to Compel Production of Successor-Custodian Documents and Relevant Source Code 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. (Attachments: # (1) Exhibit 1, # (2) Proposed Order)(Teitelbaum, Aaron)
Page 1 PageID#
EXHIBIT to Plaintiffs’ Motion to Compel
(filed on May 26, 2023)Page 2 PageID# 1930Page 3 PageID# 1931Page 4 PageID# 1932Page 5 PageID# 1933Page 6 PageID# On May 12, the parties met and conferred again. Plaintiffs explained that public filings
in the Play Store litigation and Judge Donato’s related orders 9 suggested that several Google
employees engaged in efforts to avoid creating a discoverable record. RFP 58 seeks
information that would reveal whether or not the potential witnesses in this litigation engaged
in similar conduct. Plaintiffs suggested running search terms identified in Judge Donato’s
order (e.g., “off the record,” “history off,” etc.) through custodial files. We explained that, as
described in Judge Donato’s order, it would be appropriate to run search terms through a
broader population of documents—not just documents that were responsive to other search
terms—to ensure Google captured and produced documents that would reveal employee abuse
of certain policies, if it exists in this case. You agreed to take this proposal back to Google for
Google’s consideration. We made clear that we needed to know whether Google would agree
to run search terms responsive to this request as soon as possible.
On May 17, Counsel sent Plaintiffs an email explaining that Google was “continuing to
diligently work on these issues and aim to respond tomorrow with more information.” 10 We
asked for a substantive response to our proposal by no later than noon on Thursday, May 18.
On May 18, Counsel sent Plaintiffs an email that included the following note: “We expect to
get you a substantive response on RFP 58 later today. Apologies for the delay.” 11 On May 19,
2023, Counsel sent us an email explaining that Counsel had discussions with Google about this
request and would come back Plaintiffs with a response as soon as possible that day. We did
not hear from you about this request, and on Monday, May 22, we requested a meet and confer.
You proposed times for a meet and confer on May 24, and suggested you wanted to discuss
RFP 58 further.
On May 24, during our meet and confer, Plaintiffs requested an update on this issue.
You explained that you tested our search terms and found this hit on a high volume of
documents. You asked that we consider, instead, a production of a subset of materials already
produced in the Play Store litigation, but only for overlapping custodians (between the Play
Store litigation and this litigation). We asked how many custodians overlapped, and you said
that you have identified seven overlapping custodians. We asked whether Google’s proposal
was to run search terms through the seven overlapping custodians, and you stated that Google
was instead willing to produce documents already produced in the Play Store litigation for
those seven custodians.
Plaintiffs explained that we were nearing the substantial compliance deadline. Given
the limited overlap between the two cases of only seven of the approximately 150 Google
custodians with knowledge of the relevant issues in this case, we would not be inclined to
agree to Google’s proposal. You noted that Judge Donato’s order limited searches to chats,
rather than running search terms across all documents, and that Google was interested in
reaching a compromise. We explained that we would consider an alternative proposal from
Google, if Google would be willing to agree to run the search terms through chats of all
custodians in this litigation. We made clear that, even if we moved to compel a response to
RFP 58, we would be willing to continue discussions and consider Google’s counterproposals
E.g., In re Google Play Store Antitrust Litig., No. 21-md-2981-JD (N.D. Cal. Mar. 28, 2023) ECF No. 469 at 8,
10 (“[a]n abundance of evidence establishes that Google employees routinely used Chat to discuss substantive
business topics, including matters relevant to this antitrust litigation” and “[o]verall, the record demonstrates that
Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat
preservation instructions, and sometimes disregarded the instructions altogether.”).
May 17, 2023 email from R. McCallum to K. Garcia, “RFPs 44 and 58.”
May 18, 2023 email from R. McCallum to K. Garcia, “RE: RFPs 44 and 58.”
5Page 7 PageID# if and when they offered them. Plaintiffs intend to file a motion to compel Google’s response
to RFP 58 on Friday, May 26, 2023.
*
*
*
Please contact me at (202) 262-3719 or kelly.garcia@usdoj.gov if you have any
questions regarding this letter.
Sincerely,
/s/ Kelly D. Garcia
Kelly D. Garcia
Trial Attorney
Antitrust Division
U.S. Department of Justice
6
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Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 1 of 7 PageID# 1929
EXHIBIT 1
to Plaintiffs’ Motion to Compel
(filed on May 26, 2023)
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 2 of 7 PageID# 1930
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 3 of 7 PageID# 1931
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 4 of 7 PageID# 1932
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 5 of 7 PageID# 1933
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 6 of 7 PageID# 1934
On May 12, the parties met and conferred again. Plaintiffs explained that public filings
in the Play Store litigation and Judge Donato’s related orders 9 suggested that several Google
employees engaged in efforts to avoid creating a discoverable record. RFP 58 seeks
information that would reveal whether or not the potential witnesses in this litigation engaged
in similar conduct. Plaintiffs suggested running search terms identified in Judge Donato’s
order (e.g., “off the record,” “history off,” etc.) through custodial files. We explained that, as
described in Judge Donato’s order, it would be appropriate to run search terms through a
broader population of documents—not just documents that were responsive to other search
terms—to ensure Google captured and produced documents that would reveal employee abuse
of certain policies, if it exists in this case. You agreed to take this proposal back to Google for
Google’s consideration. We made clear that we needed to know whether Google would agree
to run search terms responsive to this request as soon as possible.
On May 17, Counsel sent Plaintiffs an email explaining that Google was “continuing to
diligently work on these issues and aim to respond tomorrow with more information.” 10 We
asked for a substantive response to our proposal by no later than noon on Thursday, May 18.
On May 18, Counsel sent Plaintiffs an email that included the following note: “We expect to
get you a substantive response on RFP 58 later today. Apologies for the delay.” 11 On May 19,
2023, Counsel sent us an email explaining that Counsel had discussions with Google about this
request and would come back Plaintiffs with a response as soon as possible that day. We did
not hear from you about this request, and on Monday, May 22, we requested a meet and confer.
You proposed times for a meet and confer on May 24, and suggested you wanted to discuss
RFP 58 further.
On May 24, during our meet and confer, Plaintiffs requested an update on this issue.
You explained that you tested our search terms and found this hit on a high volume of
documents. You asked that we consider, instead, a production of a subset of materials already
produced in the Play Store litigation, but only for overlapping custodians (between the Play
Store litigation and this litigation). We asked how many custodians overlapped, and you said
that you have identified seven overlapping custodians. We asked whether Google’s proposal
was to run search terms through the seven overlapping custodians, and you stated that Google
was instead willing to produce documents already produced in the Play Store litigation for
those seven custodians.
Plaintiffs explained that we were nearing the substantial compliance deadline. Given
the limited overlap between the two cases of only seven of the approximately 150 Google
custodians with knowledge of the relevant issues in this case, we would not be inclined to
agree to Google’s proposal. You noted that Judge Donato’s order limited searches to chats,
rather than running search terms across all documents, and that Google was interested in
reaching a compromise. We explained that we would consider an alternative proposal from
Google, if Google would be willing to agree to run the search terms through chats of all
custodians in this litigation. We made clear that, even if we moved to compel a response to
RFP 58, we would be willing to continue discussions and consider Google’s counterproposals
E.g., In re Google Play Store Antitrust Litig., No. 21-md-2981-JD (N.D. Cal. Mar. 28, 2023) ECF No. 469 at 8,
10 (“[a]n abundance of evidence establishes that Google employees routinely used Chat to discuss substantive
business topics, including matters relevant to this antitrust litigation” and “[o]verall, the record demonstrates that
Google employees who received a litigation hold in this case were unable or unwilling to follow the Chat
preservation instructions, and sometimes disregarded the instructions altogether.”).
10
May 17, 2023 email from R. McCallum to K. Garcia, “RFPs 44 and 58.”
11
May 18, 2023 email from R. McCallum to K. Garcia, “RE: RFPs 44 and 58.”
9
5
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 229-1 Filed 05/26/23 Page 7 of 7 PageID# 1935
if and when they offered them. Plaintiffs intend to file a motion to compel Google’s response
to RFP 58 on Friday, May 26, 2023.
*
*
*
Please contact me at (202) 262-3719 or kelly.garcia@usdoj.gov if you have any
questions regarding this letter.
Sincerely,
/s/ Kelly D. Garcia
Kelly D. Garcia
Trial Attorney
Antitrust Division
U.S. Department of Justice
6
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