Attachment/Exhibit(s) re [232] MOTION to Seal Portion of Exhibit to Motion to Compel re Successor-Custodians and Source Code. (Teitelbaum, Aaron) Modified on 6/14/2023 to unseal per Order of JFA 06/14/23, Dkt. 265) (pmil, ).
Page 1 PageID#
EXHIBIT to Plaintiffs’ Motion to Compel
(filed on May 26, 2023)Page 2 PageID#
Liberty Square Building
450 5th Street, N.W.
Washington, DC May 25, CONFIDENTIAL
Via Email
Robert McCallum, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW
Washington DC 20005-Re:
United States, et al. v. Google LLC, No. 1:23-cv-108 (E.D. Va.)
Dear Counsel:
We are writing to summarize our efforts to reach resolution on a number of outstanding
discovery requests in this litigation.
Source code and related explanatory documents. On March 27, 2023, the first day
of fact discovery in this litigation, Plaintiffs served Plaintiffs’ First Set of Requests for
Production of Documents (“RFPs”), which included requests for source code repositories,
pseudocode, explanatory manuals, Product Requirements Documents (PRDs), and related
materials describing the operation of features described in detail in the Complaint. On April
11, 2023, Google served its Objections to the RFPs. The parties met and conferred to discuss
Google’s Objections, and discussed RFPs 39–43 (the “Source Code RFPs”) on April 20, 2023.
During our initial meet and confer on these issues, Plaintiffs explained that the Source
Code RFPs seek information necessary to allow our experts to analyze and explain to a jury
features that are set forth in the Complaint. We noted that Google expressed concerns in its
written Objections that the information sought, if disclosed, “could create a substantial risk of
serious harm to Google.” 1 But we reminded you that the parties’ Protective Order, which was
approved by the Court on April 4, 2023, provided for a detailed process under which source
code could be made available to a limited number of Plaintiffs’ experts under highly restrictive
conditions. This procedure was jointly crafted, with significant input by Google, to ensure
substantial and sufficient protection for any Google source code. Plaintiffs then explained that,
if Google believed something short of source code (e.g., pseudocode and explanatory manuals)
could provide sufficient information to allow our experts to analyze the relevant features and
explain the challenged conduct to a jury, Plaintiffs were open to discussing an alternative
Defendant Google LLC’s Objections to Plaintiffs’ First Set of Requests for Production of Documents,
Apr. 11, 2023 at 44, 46.
1Page 3 PageID# approach that might allow Google to sufficiently respond to the Source Code RFPs. We
recommended a proposal that included the production of a full set of responsive pseudocode,
which we understand was not produced during the investigation, but may contain sufficient
detail showing how the relevant features worked. You agreed to take this information back to
Google for Google’s consideration.
On April 26, 2023, Google filed its Responses to the RFPs, including the following
response to the Source Code RFPs: “Google agrees to continue to meet and confer regarding
production of source code, or in lieu of source code, as discussed with Plaintiffs, documents
that explain source code.” 2 The following week, Plaintiffs requested a May 3, 2023 meet and
confer to discuss the Source Code RFPs. Counsel did not respond to this email, but we raised
the issue at our next scheduled meet and confer on May 5, 2023. Counsel explained that
Google was still working through how to respond to our Source Code RFPs. On that call, we
offered a concrete proposal: If Google agreed to produce a full set of relevant pseudocode by a
reasonable date, Plaintiffs’ experts would work expeditiously to review the pseudocode.
Specifically, within two weeks of Google’s production of this set of pseudocode, Plaintiffs
would agree to tell Google whether the production was a sufficient response to the Source
Code RFPs, and if not, Plaintiffs would agree to provide details on what additional information
we believed we needed from Google and what source code Plaintiffs no longer needed. You
agreed to take this proposal back to Google for Google’s consideration.
The following week, on May 9, we asked for an update on whether Google was willing
to agree to our proposal. Counsel explained that Google appreciated the proposal, but that it
was not immediately clear that our proposal would expedite matters. We asked how much
time Google believed it would need to compile a full set of pseudocode. Counsel explained
that Counsel did not yet know whether a full set of relevant pseudocode exists. Plaintiffs
explained that, if there is no full set of pseudocode and our proposal is not workable, we
needed to know soon. We asked for a final answer from Google as soon as possible.
We did not receive any response. Two weeks later, after we had not heard back from
you regarding our proposal to respond to the Source Code RFPs, Plaintiffs sent an email asking
that Google agree to produce (i.e., make available under the terms set forth in the Modified
Protective Order) source code repositories, as well as produce all relevant pseudocode,
manuals, and other explanatory documents. We asked for a substantive response to our request
by no later than Tuesday, May 23 at 5:00 p.m. On Tuesday, May 23, Counsel responded:
“Regarding RFP Nos. 39-42, as you can appreciate, source code is extremely sensitive and our
inquiries so far have involved speaking with a number of Google employees regarding the
possibility of producing source code and/or related documents. We anticipate being able to
provide a substantive update on Google’s response to these RFPs by May 30.” On May 24, the parties met and conferred a final time to discuss Google’s response to
our Source Code RFPs. Counsel shared that Google was attempting to craft a solution that
would work for both Plaintiffs and the MDL Plaintiffs, and that Google expected an update on
May 30 because that is a compliance deadline in the MDL. We explained that Counsel’s offer
to provide an update by May 30 would not work for Plaintiffs. We also explained that we have
legitimate concerns that May 30 would come and go without the parties reaching resolution on
these issues. We also provided detailed explanations about the importance of source code, its
Defendant Google LLC’s Responses to Plaintiffs’ First Set of Requests for Production of Documents, Apr. 26,
2023 at 50-54.
May 23, 2023 email from R. McCallum to K. Garcia, “RE: Source Code // Request for M&C.”
2Page 4 PageID# relevance to our claims and Google’s defenses, and the importance of discovery of the source
code to resolve central issues in this litigation. We explained that our experts need access to
sufficient information to describe to a jury how Google’s ad tech features work. We noted that
Google’s Answer, including its denial of Complaint paragraphs 218 and 219 (in which
Plaintiffs describe how Project Poirot operates) makes clear that how these algorithms work
will be a disputed issue in this case. We explained that our experts need sufficient time with
these materials and that we could not wait any longer to hear Google’s proposal.
We explained that we believe Google’s lack of a substantive response up to this point
puts us at an impasse and makes this issue ripe for a motion to compel, which we intend to file
Friday, May 26. You disagreed that we were at an impasse and suggested that your proposal to
MDL plaintiffs should satisfy our requests. We noted that we still did not have any concrete
proposal from Google, but that we would be willing to continue discussions to try to reach
resolution. Given the importance of the information sought, the protocols that must be
followed before experts are granted access to this information, and the lack of information
currently available to Plaintiffs, however, we could not wait any longer to file our motion.
Successor custodians. Google’s April 11, 2023 letter, served contemporaneously with
Google’s Objections to the RFPs, included a “proposal for identifying custodial documents
responsive to” Plaintiffs’ RFPs. The letter explained that Google had “undertaken to review
millions of additional documents and produce as many responsive documents as possible by
May 30, 2023” in the MDL. 4 As part of that process, Google stated that it was applying search
terms to documents collected from 119 custodians. 5 You explained that the list of custodians (the “MDL Ad Tech Custodians”) included 113 custodians from the Division’s
investigation. In response, Plaintiffs raised concerns about relying on a set of custodians negotiated
years ago as part of the DOJ’s investigation. These custodians were negotiated in an effort to
identify documents responsive to a Civil Investigative Demand issued in October 2020.
Plaintiffs sought additional information on whether Google’s proposed custodians remained in
their roles during the October 2020 through January 2023 time period. To facilitate
discussions, we asked that Google provide a list of successors to the “MDL Ad Tech
Custodians” that had changed roles after October 2020.
We made this request in our April 14 letter and raised it on our April 17 meet and
confer, at which time Counsel explained that they had conveyed the request to Google. On
May 1, Plaintiffs sent a letter requesting an update, and on May 5, Counsel told Plaintiffs that
our request for a list of successors was in and of itself “too burdensome.” Counsel stated that
Google could not obtain information about successors without conducting “dozens of
interviews,” and thus, Google would not pursue our request for more information unless we
provided a narrower list of employees.
On May 10, Plaintiffs sent Counsel an email with information about certain Google
employees on Google’s “MDL Ad Tech Custodians” list who, based on publicly-available
information and internet searches, appeared to have left the roles they held in October 2020.
We also identified Google employees from Google’s “MDL Ad Tech Custodians” list with
titles, roles, and responsibilities that made them highly likely to have relevant information,
J. Elmer Ltr. to J. Wood and A. Teitelbaum, Apr. 11, 2023 at 1.
Id. at 2.
Id.
3Page 5 PageID# asking that Google confirm these individuals were still employed by Google and still held their
previous roles during the October 2020 through January 2023 time period.
After a week passed without hearing back from Counsel, Plaintiffs followed up on May
18 to request that Google provide a response, including whether Google would agree to add
successor custodians described in our May 10 email (to the extent they were not already on the
custodian list), by no later than Tuesday, May 23, at 5:00 p.m. On May 23, Counsel replied
that “Google is working in good faith to assess your May 10 email and we expect to be in a
position to provide an update by the end of this week.” On May 24, during another meet and confer, Counsel provided a partial update.
Counsel explained that Google had confirmed four employees were still in the role that they
held in 2020, and two of the employees had been succeeded by individuals that were already
custodians. Fifty-seven additional employees were listed on our May 10 request for additional
information, and we do not know how many of those remaining employees are still in the roles
that they held in 2020.
We expressed appreciation for the updates, but noted our concern that the substantial
compliance deadline was fast approaching. We explained that we intended to file a motion to
compel on Friday, May 26. You asked for clarification on the relief we would be seeking, and
we explained that we have requested and would request that successor employees described in
our May 10 email be added to Google’s custodian list, if they are not on the list already.
Again, we explained that we would be willing to continue discussions to try to reach
resolution, even after the motion is filed, but that we needed to resolve these issues promptly.
Document retention practices employed by potential witnesses. On April 13, 2023,
Plaintiffs served their Second Set of RFPs, which included Request for Production No. (“RFP 58”), a request for documents that address or reference Google’s “Communicate with
Care” policy, Google’s auto-deletion of Google Chat messages, and “history off” or “off the
record” conversations. Google’s April 28, 2023 Objections to Plaintiffs Second Set of RFPs
claimed the information called for in this request was not relevant, dismissing the request as
“‘discovery on discovery’ in this matter.” On May 9, Plaintiffs met and conferred with counsel and explained why Plaintiffs
believe information sought in RFP 58 is relevant. As discussed, RFP 58 seeks information
about potential witnesses’ efforts to evade their obligation to preserve documents concerning
the issues presented in Plaintiffs’ Complaint. We explained that, to the extent Google
employees involved in digital advertising insisted on discussing business decisions “off the
record,” that fact could be evidence of anticompetitive intent. We explained that the jury,
when asked to evaluate whether Plaintiffs have met their burden of proof, should be allowed to
consider evidence that relevant chats have been destroyed. We also explained that RFP sought information that would be relevant to the credibility of Google’s trial witnesses, who we
expect Google will call to testify about factual issues. Plaintiffs proposed that Google respond
to this request by running targeted search terms through the files of Google employees who
have already been identified as likely to have relevant information in this case (i.e., the agreedupon custodians).
May 23, 2023 email from R. McCallum to K. Garcia, “RE: Source Code // Request for M&C.”
Defendant Google LLC’s Objections to Plaintiffs’ Second Set of Requests for Production of Documents, Apr.
28, 2023 at 9.
4Page 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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PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 1 of 7 PageID# 1954
EXHIBIT 1
to Plaintiffs’ Motion to Compel
(filed on May 26, 2023)
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 2 of 7 PageID# 1955
Liberty Square Building
450 5th Street, N.W.
Washington, DC 20530
May 25, 2023
CONFIDENTIAL
Via Email
Robert McCallum, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW
Washington DC 20005-3950
Re:
United States, et al. v. Google LLC, No. 1:23-cv-108 (E.D. Va.)
Dear Counsel:
We are writing to summarize our efforts to reach resolution on a number of outstanding
discovery requests in this litigation.
Source code and related explanatory documents. On March 27, 2023, the first day
of fact discovery in this litigation, Plaintiffs served Plaintiffs’ First Set of Requests for
Production of Documents (“RFPs”), which included requests for source code repositories,
pseudocode, explanatory manuals, Product Requirements Documents (PRDs), and related
materials describing the operation of features described in detail in the Complaint. On April
11, 2023, Google served its Objections to the RFPs. The parties met and conferred to discuss
Google’s Objections, and discussed RFPs 39–43 (the “Source Code RFPs”) on April 20, 2023.
During our initial meet and confer on these issues, Plaintiffs explained that the Source
Code RFPs seek information necessary to allow our experts to analyze and explain to a jury
features that are set forth in the Complaint. We noted that Google expressed concerns in its
written Objections that the information sought, if disclosed, “could create a substantial risk of
serious harm to Google.” 1 But we reminded you that the parties’ Protective Order, which was
approved by the Court on April 4, 2023, provided for a detailed process under which source
code could be made available to a limited number of Plaintiffs’ experts under highly restrictive
conditions. This procedure was jointly crafted, with significant input by Google, to ensure
substantial and sufficient protection for any Google source code. Plaintiffs then explained that,
if Google believed something short of source code (e.g., pseudocode and explanatory manuals)
could provide sufficient information to allow our experts to analyze the relevant features and
explain the challenged conduct to a jury, Plaintiffs were open to discussing an alternative
Defendant Google LLC’s Objections to Plaintiffs’ First Set of Requests for Production of Documents,
Apr. 11, 2023 at 44, 46.
1
1
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 3 of 7 PageID# 1956
approach that might allow Google to sufficiently respond to the Source Code RFPs. We
recommended a proposal that included the production of a full set of responsive pseudocode,
which we understand was not produced during the investigation, but may contain sufficient
detail showing how the relevant features worked. You agreed to take this information back to
Google for Google’s consideration.
On April 26, 2023, Google filed its Responses to the RFPs, including the following
response to the Source Code RFPs: “Google agrees to continue to meet and confer regarding
production of source code, or in lieu of source code, as discussed with Plaintiffs, documents
that explain source code.” 2 The following week, Plaintiffs requested a May 3, 2023 meet and
confer to discuss the Source Code RFPs. Counsel did not respond to this email, but we raised
the issue at our next scheduled meet and confer on May 5, 2023. Counsel explained that
Google was still working through how to respond to our Source Code RFPs. On that call, we
offered a concrete proposal: If Google agreed to produce a full set of relevant pseudocode by a
reasonable date, Plaintiffs’ experts would work expeditiously to review the pseudocode.
Specifically, within two weeks of Google’s production of this set of pseudocode, Plaintiffs
would agree to tell Google whether the production was a sufficient response to the Source
Code RFPs, and if not, Plaintiffs would agree to provide details on what additional information
we believed we needed from Google and what source code Plaintiffs no longer needed. You
agreed to take this proposal back to Google for Google’s consideration.
The following week, on May 9, we asked for an update on whether Google was willing
to agree to our proposal. Counsel explained that Google appreciated the proposal, but that it
was not immediately clear that our proposal would expedite matters. We asked how much
time Google believed it would need to compile a full set of pseudocode. Counsel explained
that Counsel did not yet know whether a full set of relevant pseudocode exists. Plaintiffs
explained that, if there is no full set of pseudocode and our proposal is not workable, we
needed to know soon. We asked for a final answer from Google as soon as possible.
We did not receive any response. Two weeks later, after we had not heard back from
you regarding our proposal to respond to the Source Code RFPs, Plaintiffs sent an email asking
that Google agree to produce (i.e., make available under the terms set forth in the Modified
Protective Order) source code repositories, as well as produce all relevant pseudocode,
manuals, and other explanatory documents. We asked for a substantive response to our request
by no later than Tuesday, May 23 at 5:00 p.m. On Tuesday, May 23, Counsel responded:
“Regarding RFP Nos. 39-42, as you can appreciate, source code is extremely sensitive and our
inquiries so far have involved speaking with a number of Google employees regarding the
possibility of producing source code and/or related documents. We anticipate being able to
provide a substantive update on Google’s response to these RFPs by May 30.” 3
On May 24, the parties met and conferred a final time to discuss Google’s response to
our Source Code RFPs. Counsel shared that Google was attempting to craft a solution that
would work for both Plaintiffs and the MDL Plaintiffs, and that Google expected an update on
May 30 because that is a compliance deadline in the MDL. We explained that Counsel’s offer
to provide an update by May 30 would not work for Plaintiffs. We also explained that we have
legitimate concerns that May 30 would come and go without the parties reaching resolution on
these issues. We also provided detailed explanations about the importance of source code, its
Defendant Google LLC’s Responses to Plaintiffs’ First Set of Requests for Production of Documents, Apr. 26,
2023 at 50-54.
3
May 23, 2023 email from R. McCallum to K. Garcia, “RE: Source Code // Request for M&C.”
2
2
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Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 4 of 7 PageID# 1957
relevance to our claims and Google’s defenses, and the importance of discovery of the source
code to resolve central issues in this litigation. We explained that our experts need access to
sufficient information to describe to a jury how Google’s ad tech features work. We noted that
Google’s Answer, including its denial of Complaint paragraphs 218 and 219 (in which
Plaintiffs describe how Project Poirot operates) makes clear that how these algorithms work
will be a disputed issue in this case. We explained that our experts need sufficient time with
these materials and that we could not wait any longer to hear Google’s proposal.
We explained that we believe Google’s lack of a substantive response up to this point
puts us at an impasse and makes this issue ripe for a motion to compel, which we intend to file
Friday, May 26. You disagreed that we were at an impasse and suggested that your proposal to
MDL plaintiffs should satisfy our requests. We noted that we still did not have any concrete
proposal from Google, but that we would be willing to continue discussions to try to reach
resolution. Given the importance of the information sought, the protocols that must be
followed before experts are granted access to this information, and the lack of information
currently available to Plaintiffs, however, we could not wait any longer to file our motion.
Successor custodians. Google’s April 11, 2023 letter, served contemporaneously with
Google’s Objections to the RFPs, included a “proposal for identifying custodial documents
responsive to” Plaintiffs’ RFPs. The letter explained that Google had “undertaken to review
millions of additional documents and produce as many responsive documents as possible by
May 30, 2023” in the MDL. 4 As part of that process, Google stated that it was applying search
terms to documents collected from 119 custodians. 5 You explained that the list of 119
custodians (the “MDL Ad Tech Custodians”) included 113 custodians from the Division’s
investigation. 6
In response, Plaintiffs raised concerns about relying on a set of custodians negotiated
years ago as part of the DOJ’s investigation. These custodians were negotiated in an effort to
identify documents responsive to a Civil Investigative Demand issued in October 2020.
Plaintiffs sought additional information on whether Google’s proposed custodians remained in
their roles during the October 2020 through January 2023 time period. To facilitate
discussions, we asked that Google provide a list of successors to the “MDL Ad Tech
Custodians” that had changed roles after October 2020.
We made this request in our April 14 letter and raised it on our April 17 meet and
confer, at which time Counsel explained that they had conveyed the request to Google. On
May 1, Plaintiffs sent a letter requesting an update, and on May 5, Counsel told Plaintiffs that
our request for a list of successors was in and of itself “too burdensome.” Counsel stated that
Google could not obtain information about successors without conducting “dozens of
interviews,” and thus, Google would not pursue our request for more information unless we
provided a narrower list of employees.
On May 10, Plaintiffs sent Counsel an email with information about certain Google
employees on Google’s “MDL Ad Tech Custodians” list who, based on publicly-available
information and internet searches, appeared to have left the roles they held in October 2020.
We also identified Google employees from Google’s “MDL Ad Tech Custodians” list with
titles, roles, and responsibilities that made them highly likely to have relevant information,
J. Elmer Ltr. to J. Wood and A. Teitelbaum, Apr. 11, 2023 at 1.
Id. at 2.
6
Id.
4
5
3
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 5 of 7 PageID# 1958
asking that Google confirm these individuals were still employed by Google and still held their
previous roles during the October 2020 through January 2023 time period.
After a week passed without hearing back from Counsel, Plaintiffs followed up on May
18 to request that Google provide a response, including whether Google would agree to add
successor custodians described in our May 10 email (to the extent they were not already on the
custodian list), by no later than Tuesday, May 23, at 5:00 p.m. On May 23, Counsel replied
that “Google is working in good faith to assess your May 10 email and we expect to be in a
position to provide an update by the end of this week.” 7
On May 24, during another meet and confer, Counsel provided a partial update.
Counsel explained that Google had confirmed four employees were still in the role that they
held in 2020, and two of the employees had been succeeded by individuals that were already
custodians. Fifty-seven additional employees were listed on our May 10 request for additional
information, and we do not know how many of those remaining employees are still in the roles
that they held in 2020.
We expressed appreciation for the updates, but noted our concern that the substantial
compliance deadline was fast approaching. We explained that we intended to file a motion to
compel on Friday, May 26. You asked for clarification on the relief we would be seeking, and
we explained that we have requested and would request that successor employees described in
our May 10 email be added to Google’s custodian list, if they are not on the list already.
Again, we explained that we would be willing to continue discussions to try to reach
resolution, even after the motion is filed, but that we needed to resolve these issues promptly.
Document retention practices employed by potential witnesses. On April 13, 2023,
Plaintiffs served their Second Set of RFPs, which included Request for Production No. 58
(“RFP 58”), a request for documents that address or reference Google’s “Communicate with
Care” policy, Google’s auto-deletion of Google Chat messages, and “history off” or “off the
record” conversations. Google’s April 28, 2023 Objections to Plaintiffs Second Set of RFPs
claimed the information called for in this request was not relevant, dismissing the request as
“‘discovery on discovery’ in this matter.” 8
On May 9, Plaintiffs met and conferred with counsel and explained why Plaintiffs
believe information sought in RFP 58 is relevant. As discussed, RFP 58 seeks information
about potential witnesses’ efforts to evade their obligation to preserve documents concerning
the issues presented in Plaintiffs’ Complaint. We explained that, to the extent Google
employees involved in digital advertising insisted on discussing business decisions “off the
record,” that fact could be evidence of anticompetitive intent. We explained that the jury,
when asked to evaluate whether Plaintiffs have met their burden of proof, should be allowed to
consider evidence that relevant chats have been destroyed. We also explained that RFP 58
sought information that would be relevant to the credibility of Google’s trial witnesses, who we
expect Google will call to testify about factual issues. Plaintiffs proposed that Google respond
to this request by running targeted search terms through the files of Google employees who
have already been identified as likely to have relevant information in this case (i.e., the agreedupon custodians).
May 23, 2023 email from R. McCallum to K. Garcia, “RE: Source Code // Request for M&C.”
Defendant Google LLC’s Objections to Plaintiffs’ Second Set of Requests for Production of Documents, Apr.
28, 2023 at 9.
7
8
4
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Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 6 of 7 PageID# 1959
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
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Case 1:23-cv-00108-LMB-JFA Document 233 Filed 05/26/23 Page 7 of 7 PageID# 1960
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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