TRANSCRIPT of motions hearing held on 6-2-23, before Judge John F. Anderson, Court Reporter Stephanie Austin, Telephone number 571-298-1649. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/5/2023. Redacted Transcript Deadline set for 8/7/2023. Release of Transcript Restriction set for 9/5/2023.(Austin, Stephanie)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs, :
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-Friday, June 2, Alexandria, Virginia
Pages 1-
The above-entitled motions hearing was heard before
the Honorable John F. Anderson, United States Magistrate
Judge. This proceeding commenced at 11:02 a.m.
A P P E A R A N C E S:
FOR THE PLAINTIFFS:
KRISTIN STARR, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia (703) 299-
KELLY GARCIA, ESQUIRE
JULIA TARVER WOOD, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. (202) 894-
TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia (804) 786-
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 2 PageID#
A P P E A R A N C E S:
FOR THE DEFENDANT:
ANDREW EWALT, ESQUIRE
SARA SALEM, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. (202) 777-JOSEPH BIAL, ESQUIRE
AMY MAUSER, ESQUIRE
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, NW
Washington, D.C. (202) 223-
CRAIG REILLY, ESQUIRE
LAW OFFICE OF CRAIG C. REILLY
209 Madison Street
Suite Alexandria, Virginia (703) 549-
COURT REPORTER:
STEPHANIE M. AUSTIN, RPR, CRR
Official Court Reporter
United States District Court
401 Courthouse Square
Alexandria, Virginia (571) 298-S.AustinReporting@gmail.com
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 3 PageID#
P R O C E E D I N G S
THE DEPUTY CLERK:
United States of America, et
al. versus Google LLC, Civil Action Number 23-cv-108.
MS. STARR:
Good morning, Judge Anderson.
Kristin Starr from the U.S. Attorney's Office.
are my colleagues from the Department of Justice, Kelly
Garcia and Julia Tarver Wood.
And with me
I'll let the counsel from the State AG's Office
introduce themselves.
THE COURT:
Who's going to be arguing for the
United States?
MS. STARR:
Kelly Garcia will be arguing for the
United States, Your Honor.
THE COURT:
Thank you.
MS. GARCIA:
THE COURT:
MS. TARVER WOOD:
MR. HENRY:
Good morning, Your Honor.
Good morning.
Good morning, Your Honor.
Good morning, Your Honor.
Ty Henry
from the Virginia Attorney General's Office on behalf of the
plaintiff states.
THE COURT:
Thank you.
MR. EWALT:
Good morning, Your Honor.
Andrew Ewalt from Freshfields on behalf of Google.
I'm
joined by Joseph Bial from Paul, Weiss, who will be arguing
this morning; as well as Sara Salem from Freshfields;
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 4 PageID#
Amy Mauser from Paul, Weiss; and, of course, Craig Reilly.
THE COURT:
Okay.
Thank you.
All right.
Well, I got a motion that has two parts in front
of it.
deal with that completely, and then we'll get to the other
issue after that.
I want to deal with the custodian issue first and
So let's go ahead -- and I've read what everybody
submitted.
You know, it -- I appreciate your trying to keep
the briefs brief, but there's -- and this goes to both of
the issues, but it relates a little less so to the custodian
issue.
A significant amount of substantive information
really hasn't been provided to me.
identified 63 custodians.
relating -- at least provided to me, I assume you all know
it -- as to, you know, who these custodians really were,
what they really did, what their role really was based on
the information that you provided.
provided some information as to those 63, and you've gotten
some information, you haven't gotten some information.
They've agreed to produce custodians or follow-on custodians
for some but not the others.
You talk about we
There's no information
And, you know, they
But I don't have any real substance behind the
numbers, and that's a little concerning.
And I know your
argument is, you know, they had information back in -- or
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 5 PageID#
the person who was in this position back in 2020, it was
agreed that they had substantive information and their
material issue had been reviewed and looked at.
take it from your argument it is -- I am to assume that that
position, or whatever the person did in that position in
2020, has an ongoing relationship, need or involvement in
the issues in this case.
not something that has really been shown to me at this
point.
And I -- I
But, I mean, that's an assumption;
You know, clearly, Google has acknowledged that in
some respects, and that some of the successor custodians
they've agreed to either are already on the list and are
currently doing jobs, functions, responsibilities that
are -- they acknowledge are -- but I'm at a little bit of a
loss as to how is it that I just assume a custodian in 2020,
a new person in that job duties and responsibilities is
going to have information between October of 2020 and now.
MS. GARCIA:
Your Honor, good morning.
Kelly Garcia for the United States.
So today we're coming before you on only one
remaining issue.
With respect to the issue of successor
custodians, this morning we received an email from Google's
counsel in which they agreed to identify the remaining
successor custodians in order to cover the post-October
time period and add those custodians to their list.
As we
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 6 PageID#
responded this morning, we consider this issue resolved.
THE COURT:
Okay.
Well then, that whole
discussion was for nothing.
I guess I should have asked if
there any updates on that issue before I came in.
Well, that's -- so they're going to provide you
the information on the 18 of the 63 that you didn't have.
The 11 that they said, you know, we have successors for,
they're going to be looking at their documents and providing
information from October of 2020 to the present; is that
your understanding?
MS. GARCIA:
THE COURT:
Exactly, Your Honor.
Is that consistent with what -- I had
a hearing at 10.
I didn't see any filings or anything to
indicate that that got worked out.
But is that the agreement for --
MR. BIAL:
Google.
Your Honor, yes.
Joseph Bial for
That is the agreement.
THE COURT:
Okay.
Well, thank you very much.
Let's move to the next issue, which is, honestly,
even more confusing to me.
in front of me today, you know, you've got the document
requests, you've got an -- well, first of all, have you
worked it out, I guess should be my first question, and if
not, then I'll continue to have some discussions.
MS. GARCIA:
And my concerns with what I have
I appreciate that, Your Honor.
We're
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still at an impasse, so this is still an issue that we would
like resolution on today.
THE COURT:
Okay.
Well, whether you're able to
get a decision from me today will be -- we'll find out.
But the thing that I am -- again, I'm not sure I
fully understand based on the briefing.
recognize you've got a lot of people who are dedicating
their full time and attention to this case and know a lot
more about this case than I do.
And, again, I
The issue -- overarching issue is they have agreed
to provide you with 9 of the 12 source code requests.
three, the last three, they've said, you know, either we
understand, we don't think it's relevant, we don't really --
you know, too hard to figure out what it is.
The
I don't understand when they say they're going to
be producing all the source code as to a particular project,
tool, whatever, what it is that's in the remaining amounts
that is not included in the first amount here.
So, help me understand what it is in those three
areas that seem to be at issue.
than just that, but I think that's a key issue that we need
to address.
And I know there are more
So -- and, again, you know, the first nine are
pretty specific.
"This project," they know what that
project is, they can go look.
The others are a little
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bit -- you know, source code that relates to -- pretty
amorphous.
particular project, proposal, whatever.
You know, how you do X, Y, Z, as opposed to a
So let me hear about that; okay?
MS. GARCIA:
As counsel acknowledged on a meet-and-confer
Yes, Your Honor.
yesterday, the way in which we described the last three
categories of our RFP may not be how Google's own engineers
describe it.
What we've tried is -- tried to do is
describe, with good-faith efforts, other information that we
believe would be relevant, although we have no code name or
specific other identifier in order to be able to give more
information at this time.
THE COURT:
Well, you know, this Project Bernanke
or Poirot or the dynamic revenue share or the predictive
highest bidder, the Smart Bidding, do they encompass what
you're asking for in any other requests or not?
MS. GARCIA:
Your Honor, they may.
And if I --
with this opportunity, I would like to be able to describe
those three remaining requests in plain language.
So with respect to -- with respect to RFP
Part 10, we've given a functional description here asking
for the source code or algorithms that choose what
exchanges, DSPs and Ad Networks are called on by each of the
Google products at issue in this case, Google Ad Manager,
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DV360 and Google Ads.
To the extent those are covered by any of the code
names that we've identified, we appreciate Google's efforts
to search for and identify responsive information, but our
concern is that if we don't already know a certain name of a
project, particularly a newer project that perhaps postdates
several documents and depositions that happened during the
investigation, we don't want to suggest that those -- that
source code or those algorithms are not relevant here.
THE COURT:
So, I mean, the document request that
you have served -- and that's what's in front of me, to some
extent -- and looking at 10:
related products that determine which exchanges, DSPs and Ad
Networks to call."
MS. GARCIA:
THE COURT:
"Any curation function for the
Yes, Your Honor.
So go back and tell me again what that
really means.
MS. GARCIA:
So by "curation function," we're
simply referring to the function of the algorithm that
chooses which exchanges, DSPs or Ad Networks are called by
the program.
source code that are specific to Google Ad Manager, DV
and Google Ads.
We're limiting our request to algorithms and
THE COURT:
Okay.
All right.
What about 11?
"Any bid, price floor or auction optimization algorithm" -Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-164Page 10 PageID#
any -- "product or feature."
MS. GARCIA:
With respect to Subsection 11, we believe we've --
we're asking for source code for any Google bid, price floor
or auction optimization algorithm, product or feature, and
we've provided counsel and in the papers some references to
complaint paragraphs in an attempt to give as much
information as we possibly could.
THE COURT:
Yes, Your Honor.
Why don't you think that's already
included in the, you know, other project information and
other things that you've asked for in 1 through 9?
MS. GARCIA:
Your Honor, it may very well be
included in those responses, but given the information that
we have to date and the information that we have from
Google, we cannot say for sure that it is.
THE COURT:
MS. GARCIA:
All right.
And 12.
Twelve asks for source code
pertaining to any automated means or manner of bidding,
whether on individual bids or a campaign-level basis.
Again, the complaint discusses these issues, and,
unfortunately, we don't have specific code names or other
identifiers that we can provide to Google based on the
information that we've been able to gather up to this point;
however, we believe that this is sufficient information for
Google to be able to take back to its client.
You know, the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 11 PageID#
teams of engineers that work at Google, we suspect that they
have more information on what exactly these automated means
are called, and, unfortunately, we cannot provide any more
information other than what we have.
THE COURT:
Okay.
Well, what efforts have you
taken, other than good-faith consultation with counsel, to
figure out what it is?
a very narrow area as to, you know, what is it that we need
to do to, you know, figure out about, you know, curation
I mean, have you taken a 30(b)(6) on
function for products that determine the exchanges?
bid floor price auction optimization algorithm, product or
feature?
Or the
Or try and figure out something specific?
I mean, the problem is, if you're asking me to
order them to do something that is vague -- well, if it's
something they're already going to be providing, that's not
a problem, and I'll hear whether it really is, these three
things are subsumed in 1 through 9 or not.
your concerns.
some of these projects or programs or code names is limited,
if they limit it to that particular thing, and it also does
or relates to other things that you want to get some other
information that relates to that, but 1 through 9 seem very
specific; 10, 11 and 12 seem pretty broad, maybe vague,
sometimes catch-all.
when you read those three compared to the first nine.
And I understand
If a -- you know, if a directed reading of
Those are all terms that come to mind
And I
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don't want to be in a position of ordering somebody to do
something that isn't specific.
So what have you done in order to get specific
information from Google other than through lawyers and
communications with counsel?
MS. GARCIA:
Your Honor, during the course of our
investigation, we took several depositions, as you know.
We
posed these questions to individuals who we understood were
involved in the creation of this code, and those individuals
were not able to give us a complete understanding of the
code itself.
suggested that there are several engineers across Google who
work on issues like this.
pursued a 30(b)(6) at this time.
A lot of the testimony that we received
For that reason, we have not
This case is -- at its core, it's about
programmatic digital advertising tools, which is its code.
We've done our best to identify code names, and we have in
through 9, but, otherwise, we've done our best to articulate
what we are looking for.
What we told Google yesterday on a meet-and-confer
was that if Google's engineering teams have made good-faith
efforts to find responsive source code and cannot find it,
we would accept an affidavit from a Google employee with
knowledge explaining that they've taken steps to identify
this information and that it doesn't exist.
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We've also made clear that, in addition to the
affidavit, we would ask that Google stipulate that neither
party would rely on source code if it comes to light later
on that this information does, in fact, exist.
THE COURT:
Okay.
There's a fair amount of
discussion in your papers about your experts, him or her,
needing additional information and needing roadmaps and
guidelines and those kinds of things.
from an expert; I only have you saying your experts may need
I don't have anything
this kind of information.
What's the basis for your statement, and why is it
that you think what they have agreed to provide -- and they
have, you know, outlined in their opposition some
information they've agreed to search for and provide
relating to source code that they've agreed to provide, and
why is any more necessary?
MS. GARCIA:
Your Honor, the basis for this
request was from -- it was a request from our expert teams
and their consultation teams.
How they explained it to us -- I'm not someone who
has a degree in computer science, so I can't pretend to have
firsthand knowledge of this.
explained it to us was that they expect, having done this
type of work before, that there exists data dictionaries,
user manuals and other explanatory materials in the ordinary
But the way that they
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course of business at Google.
Google is a large organization and no one person is likely
to have a full understanding of all of the relevant code
across the company, they expect manuals exist to explain
these materials to someone within the organization who works
in a different department or someone who is new to the
organization, for example, a new hire.
THE COURT:
information?
They told us that since
Well, why do they need that
I understand they say they may have that
information, they're a big company, and they may have
guidelines and things, but why is it that your experienced
team of experts would need, you know, a roadmap from Google
to look at the information that they --
MS. GARCIA:
Your Honor --
THE COURT:
MS. GARCIA:
From what we have agreed to with plaintiffs in
-- have gotten or will be getting?
Thank you, Your Honor.
order to protect source code and respect the confidentiality
of the source code, our experts will be subject to
significantly restrictive provisions when they do access the
source code.
the morning to a certain point in the night.
go in and be observed by someone else.
but they can't write down any portion of the source code.
All of these strict conditions are agreed to already by the
They can only go in from a certain point in
They can only
They can take notes,
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 15 PageID#
parties in the protective order.
THE COURT:
And they're usual.
I mean, there's
nothing really unusual about that when you're dealing with
source codes.
MS. GARCIA:
So, Your Honor, what we're attempting
to do is arm our experts with the information that they've
told us they would need in order to understand, as
outsiders, not as Google engineers, the information that
they're reviewing when they go in to look at the source
code.
They are also doing this rather quickly.
of the reason why we've asked for Your Honor's intervention
at this stage is that we've -- you know, to date, we haven't
had a discussion about concrete timing, when our experts
will have access to this source code, when everything will
be up and ready.
ambiguous with respect to whether Google has identified any
of the source code to this date.
And part
The proposal that we've seen was a bit
Yesterday on the meet-and-confer, I put the
question to Google and was told that they cannot confirm
that they've identified any of the responsive source code.
THE COURT:
Not even for the nine items that
they've agreed?
MS. GARCIA:
THE COURT:
That's my understanding, Your Honor.
Okay.
Well -- all right.
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Well, what else would you like to say before I
hear from Google's counsel?
MS. GARCIA:
Your Honor, I'd like the opportunity
to address any other specific questions you have with
respect to, you know, our efforts to reach agreement up to
this point, any questions you have with respect to why we
believe the source code is so crucial to our case, or any
other questions you have in general.
THE COURT:
Well, I mean, I need to hear from
Google's counsel about what is not in 1 through 9 that may
be covered by the -- if you give a fair reading to 10,
and 12 and not a broad interpretation of that.
you've tried to explain to them what it really is that
you're looking for and want to have, and I think, you know,
are entitled to get that kind of information.
MS. GARCIA:
THE COURT:
I think
Thank you, Your Honor.
So let me hear from counsel.
Thank
you.
MS. GARCIA:
THE COURT:
Thank you.
First, I want to hear about the --
there are nine areas in which you have agreed to provide
source code from.
MR. BIAL:
THE COURT:
That's correct, Your Honor.
And where are you in the process of
getting that so that can start being looked at?
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MR. BIAL:
Sure.
So let me just take a step back.
The way that we identify that, and you mentioned
those seem to be less vague, and that's Request for
Production Number 39 that includes the 12 categories.
THE COURT:
MR. BIAL:
Right.
So we work with the folks at the
company to, you know, find out what does that mean, and, in
those instances, as you mentioned, those are projects and so
forth.
So we're able to identify those.
And then it's
still -- obviously it's the company's secret sauce, if you
will, but we've got the protocol here for source code.
think it's just going through the mechanics of that in order
to produce 1 through 9.
Okay.
So I
THE COURT:
I understand that.
Where are we in the mechanics of doing that --
MR. BIAL:
THE COURT:
Oh, it's --- so that we can actually, you know,
start doing something -- that is, the plaintiffs can start
seeing that information and making a determination as to
whether, you know, the information that you're providing is
going to be sufficient or not?
MR. BIAL:
Correct.
No, Your Honor.
That's a
fair question.
So that's actually -- right now we're in the
process of getting that prepared for production, but we're
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still going to have to figure out who is going to receive
it, and that might take, you know, a bit of time because
we've got to go through paragraphs 2 and 3 of the --
THE COURT:
"Prepared for production," let's focus
on that issue now.
MR. BIAL:
THE COURT:
Right.
When is it that you are anticipating,
if all of the other items get worked out, that you will be
in a position to allow somebody to go into the room and
start looking at this source code?
MR. BIAL:
THE COURT:
MR. BIAL:
THE COURT:
A couple weeks.
A couple of weeks?
Well, here's the thing, Your Honor -You've had these requests for how long
now?
MR. BIAL:
Yeah, no.
And it's really not that
part of it; it's really Sections 2 and 3 of the protocol.
They have to provide names to us, and then we have to vet
those names.
THE COURT:
You may not have understood my
question.
Assuming all -- and I want to know on the Google
side, when has that -- when will you be prepared to have all
the source code that you have agreed to produce available to
be reviewed?
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MR. BIAL:
THE COURT:
being acceptable.
weeks or months --
Within a week.
Okay.
All right.
So, that, I see as
You know, the idea that it's going to be
MR. BIAL:
THE COURT:
No, I didn't intend to -You know, we've got a process, we've
got a procedure, we've got to work through things, we're
preparing.
case to not be doing what you have agreed to do.
You know, I -- we don't have enough time in this
You know,
if we talk about a timetable for things that I order you to
do that you agreed to do, it may be different than that.
But -- okay.
So assuming the other issues, you know, who's
going to look at it, get the room set up and those kinds of
things, you would be in a position to have their experts be
able to start the process of looking at this information
within around a week; is that accurate?
MR. BIAL:
That's correct.
THE COURT:
problem is with 10, 11 and 12.
MR. BIAL:
All right.
Yeah.
So tell me what the
It's -- the question on 10,
and 12, I think is, it's not that -- I mean, these are
intelligent individuals that are trying to help identify
what we would be producing.
in the meet-and-confer that we had yesterday, Ms. Garcia
And let me give an example.
So
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 20 PageID#
mentioned bidding, which -- for 10, 11 and 12.
the client yesterday, and we're in a position to produce
that, if that's what they're actually intending to receive.
I think a meet-and-confer was probably the way to go, but we
are where we are.
We went to
But that -- once we understood it's, you know,
potentially bidding, then we were in a position to go and
start collecting that for production.
question about is that all they want, or are there other
But, again, that is a
things they want, and we don't know.
THE COURT:
Okay.
In these meet-and-confer
sessions, is it just the lawyers, or are technical people
involved?
technical skills and capabilities, but I'm talking about
in-house technical people involved in the discussions to try
and have a fair exchange of information as to what we need
and how can you get it together.
And I don't mean that lawyers can't also have
MR. BIAL:
THE COURT:
These have been counsel.
Okay.
Have you all explored the
possibility of having the people who really understand
things completely -- without things being lost in
translation to some extent -- having a discussion with
counsel to try and flesh some of these issues out?
MR. BIAL:
No, we have not yet done that.
we would be open to doing that.
I think
I think to the extent that
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 21 PageID#
they have more information or can give us more color, then
we could find the right individual.
probably do that in a very short order as well.
THE COURT:
But I think we could
Well, I assume, not only before this
motion got filed, but certainly after this motion got filed,
there have been some efforts to try and figure out what
could be captured in 10, 11 and 12 that isn't already
captured in 1 through 9.
MR. BIAL:
Right.
And I think if you look at some
of what's cited in the reply brief to the complaint, it
does, for some of those, when we're talking about 10, 11 and
12, cite back to precisely the ones that you mentioned
earlier, Bernanke, Poirot.
11 and 12.
government's position is that they're not limiting it to
that kind of thing.
mentioned, so that's the one that's on the table right now,
and we've gotten that one cleared.
So there is some of that in 10,
But I don't believe -- my understanding of the
THE COURT:
I think, you know, again, bidding was
Well, bidding is mentioned in 11 and
12.
automated means or manner of bidding, whether on individual
bids or on a campaign-level basis."
bidding.
It seems to be the primary focus of 12.
Eleven is:
It says:
"Any
So that seems to be
"Bid, price floor or auction
optimization algorithm, product or feature."
So 11 seems to
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 22 PageID#
be -- I don't know whether price floor or auction
optimization is part of bid or not.
relating to products that determine which exchanges are.
that isn't -- is that -- how does that relate to bidding?
MR. BIAL:
But 10 just talks about
Well, I don't know that it does.
So
I
mean, we had a conversation yesterday about those three, and
that was the one thing that was identified.
discussion of the three as a whole rather than going one by
one.
THE COURT:
MR. BIAL:
THE COURT:
MR. BIAL:
THE COURT:
MR. BIAL:
And it was a
Okay.
And I should just mention -Where are you on -I didn't mean to interrupt.
Go ahead.
It's never been the case that we don't
want to provide the information; it's really more of having
the back-and-forth, which we were having until -- or we
continue to have it, actually, after the motion to compel
was filed.
accomplish.
step at that because we now heard bidding was of interest,
and we were able to actually go with something specific like
you see in 1 through 9.
And I think that's what we were trying to
And I thought yesterday was a very productive
THE COURT:
Well, it's a little hard to understand
how bidding just came to light as something of interest when
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 23 PageID#
you look at 10 -- or certainly 11 and 12 that you've had in
your possession for a couple of months now; right?
they were interested in bidding information.
obviously seems to be something that is more focused at this
point.
But that
What about the guidebooks, dictionaries, that kind
of information?
Where are you on that issue?
MR. BIAL:
Yes.
So let me answer that in two
ways.
First, we have a set of search terms.
didn't -- we didn't attach it to our complaint.
20 pages and smaller than single-spaced.
Size 8 font.
That
THE COURT:
I mean, I
It's
It's probably
I probably wouldn't understand them
either.
MR. BIAL:
So it's pretty comprehensive.
We have that, and so they can run that.
would think that those would hit on these manuals.
that's Number 1.
So I
So
I think Number 2 -- and Your Honor put your finger
on this.
For better or for worse, I do antitrust; that's
all I do.
So when I'm working with an expert, I'm seeing
their models, their code.
how-to guide.
I've never heard them ask for a
I mean, they're the experts.
So, you know, I think they could be -- they have
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 24 PageID#
that skill set.
And I think Your Honor said in the
March 26th hearing that experts can be working before they
get the information.
THE COURT:
So presumably they can do that.
Yeah.
But that, to some extent,
counters your argument, that if an expert has some roadmap
as to what this source code is intended to do or doing, when
they get into the, you know, safe space room or whatever it
is that they are limited in access and having information,
they have a base of knowledge to start work on and they're
not going in cold.
So there is some substance behind the request of,
you know, help me understand -- give me a primer on what I'm
going to be going in and looking at when I go in and start
seeing -- I assume it's not a small set of information in
the source code documents.
But it's something that, you know, an expert probably would
want to have some general familiarity with what the process
is or what terminology is being used or those kinds of
things.
I don't know how large it is.
Why wouldn't that be of help to them and of need
to them?
MR. BIAL:
Well, I think it could be.
And I'm not
denying that a guidebook before you -- you know, you go into
the secure room wouldn't be helpful to get you up to speed
in advance.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 25 PageID#
We were asked that question, and we did run it to
ground, and it was not this kind of guidebook.
guess there's -- I don't think they're talking about a basic
guidebook; I think they're talking about something more
complex than that to go into that room and be looking at the
code in a short amount of time.
I mean, I
For that exercise, at least in the back-and-forth
that we had, which was not insignificant, we were not able
to locate those.
Again, I would point back to the search
terms, which I think -- if that doesn't turn something up, I
think it probably really doesn't exist.
the purposes of our collection and talking to the various
individuals who we thought would have knowledge of that, we
did not come across such a how-to guide.
THE COURT:
Okay.
But at least for
Well, give me your
understanding of where the parties are based on the
conversation that you had yesterday.
MR. BIAL:
Sure.
I think in terms of the overall
motion to compel, clearly we've resolved the successor
custodians.
going to tell you exactly that I thought we did and we
would.
irrespective of the fact that we got it done this morning.
And had we not done that this morning, I was
So that was always going to be taken care of
With respect to the source code, I think 1 through
9, I think we can also agree that those are -- you know,
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 26 PageID#
those are behind us.
minds on those nine.
I think those are a meeting of the
And 10 through 12, as I mentioned earlier, I
think, you know, additional discussions between the parties
on a short leash -- because I understand from what you said
earlier, we don't have time for that -- would probably make
the most sense.
successful, that you'll hear from the government in very
short order.
And I think if that meet-and-confer is not
THE COURT:
Okay.
What about in -- you know,
you're talking I think more directly about 39, but the other
requests that are part of the guidebook dictionary --
MR. BIAL:
Right.
THE COURT:
MR. BIAL:
Again, same thing.
The materials.
-- and the materials.
Right.
Right.
I mean, originally I think the
search terms were more geared toward that, but I think
obviously if they collect that material, then the
guidebooks, it would be helpful to them.
pointed out, if they had something like that, it's helpful;
it's not unhelpful.
THE COURT:
And, as you
That process would turn that up.
Well, explain to me why it would be
difficult for Google to find out whether there are -- and
absent -- putting search terms aside and, you know,
automatic -- you know, one would -- again, I don't know
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 27 PageID#
Google, don't know how complicated all of this is, but it
doesn't seem that difficult to find somebody at Google that
would know whether they have such things as dictionaries or
guidebooks or other kinds of information that one would, you
know, want to -- even if they don't get hit on search terms,
would be in a position to produce if they're there and
exist.
MR. BIAL:
example.
Right.
Well, let me give you an
So pseudocode -- they asked for pseudocode central
repository, and if that existed -- I mean, we absolutely
went to the client, and they were not aware of such a thing.
And so I think, you know, the best answer to that
is really going to those search terms.
were to turn up and we found out about it, we didn't know
about it -- I think they're obviously doing good-faith
searches -- we would turn it over immediately.
it clear that they want that sort of information.
came across it, we would turn it over immediately.
THE COURT:
And if something
They've made
If we
Well, the problem you face -- and,
again, I'm giving you a scenario that I hope would never
happen -- is that you don't produce that kind of
information, and that in the middle of a deposition,
somebody talks about a dictionary, glossary or cultural
guide that is well known within the Google team and the
plaintiffs look at each other and say, did we get that?
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-
And Page 28 PageID#
they say, no.
I mean, that's why I'm asking you.
this is to make sure that you don't get yourself in
trouble --
MR. BIAL:
THE COURT:
Again,
Correct.
-- is not just relying on these, you
know, pages of search terms, but on some specific
information, going out and making an individualized inquiry
about does that kind of information exist, and, if so, where
is it.
MR. BIAL:
Right.
Understood.
I mean, again, we would know as well once we do
those searches and before the depositions begin.
something turns up, they would get it.
made very clear that that's something that is expected and
that would be something ordinarily pursued in discovery.
THE COURT:
Okay.
All right.
And if
But I think you've
Well, let me just
hear a little bit more from government counsel.
MR. BIAL:
THE COURT:
Was the meet-and-confer yesterday in person or
Thank you, Your Honor.
Thank you.
over the phone or Zoom or how was that done?
MS. GARCIA:
Yesterday's meet-and-confer was on
Microsoft Teams, Your Honor.
THE COURT:
MS. GARCIA:
Okay.
It was the, I want to say ninth
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 29 PageID#
meet-and-confer we have had since the outset of our
litigation since we were -- since we received Google's
objections to our RFPs, including our source code RFPs in
mid-April.
counsel -- not counsel from this firm, but counsel from
another firm representing Google -- and began good-faith
discussions about how Google could go about responding to
this -- these requests.
That same week, we met and conferred with
During the course of that time, we had discussions
about how Google's concerns with respect to source code had
to do a lot with the fact that it was very highly sensitive,
and we proposed an alternative if it existed.
We asked that Google go back to its client -- this
was in early May -- and search for and ask if there was a
central repository for pseudocode.
that pseudocode is a plain-language explanation of source
code.
Our understanding is
We proposed that if Google could do this within a
reasonable time and get our experts that material within a
reasonable time -- which we would have discussed had they
discovered a central repository -- we would take only two
weeks with that source code and come back to them and say
whether or not there is more information that we need or
whether or not what they've provided should suffice.
three weeks, we were told there was no central repository
After
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 30 PageID#
for pseudocode.
We continued to have good-faith discussions.
Yesterday's discussion with Mr. Bial was the first that he
had joined, but it was not the first time that we have
discussed this.
earlier point, we told counsel that we would be prepared --
if they told us that they were prepared to have our experts
come in and examine the source code, that same day we would
get them a list of names of individuals who could come in as
We told counsel that -- going back to an
soon as possible.
We would welcome the opportunity to speak with
their data scientists about these issues.
anything from counsel about that opportunity.
extent they're willing to have data scientists -- and I say
"scientists" because I strongly believe that there's not
going to be one person at the company who has this
information.
THE COURT:
MS. GARCIA:
We haven't heard
But to the
Right.
But if they're willing to have prompt
discussions with those individuals, we would welcome that
opportunity.
The first time that they told us that there wasn't
clarity with respect to 10 -- Numbers 10 through 12 was
May 26th in a letter that was --
THE COURT:
What did the objections to those
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 31 PageID#
requests say?
MS. GARCIA:
Well, the objections, I'll say
without looking, did describe -- object that they are vague.
THE COURT:
I don't have the objections in front
of me, but I suspect I know that they would talk about being
vague or indefinite --
MS. GARCIA:
THE COURT:
MS. GARCIA:
THE COURT:
Yes, they're --- or whatever; so ...
Pardon me, Your Honor.
Yes.
So, I mean, obviously you were put on
notice within 15 days after you served it that that was a
potential issue relating to what you had served.
MS. GARCIA:
That's fair, Your Honor.
What we've tried to do is get to the heart of --
to the extent that these vagueness objections were
objections made to every single RFP that we posed, what it
is that we can do in order to come to a meeting of the minds
as to what these terms mean.
with respect to several other RFPs.
THE COURT:
MS. GARCIA:
And we've made good efforts
All right.
We haven't received a single document
from anyone's custodial files responsive to any search terms
to date.
dictionaries and other important information that our
experts need in order to have sufficient context to read the
This information about manuals and data
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 32 PageID#
code may not be in custodial files.
not be.
It may be, but it may
One concern that we raised yesterday was that we
do not know when we will receive a production from Google of
any documents that hit on any of the search terms in the
exhibit that Mr. Bial brought today.
one way or the other whether or not the search terms are
going to be sufficient.
So we can't tell you
We suspect that, given the tight timeline that our
experts will be facing and the very strict rules in which
they have to oblige in order to review the code, that
they'll want this information more quickly than we would
be -- otherwise be able to get if we waited for a production
from Google responsive to search terms.
With respect to the central repository, that was
part of our attempt to reach resolution and have a
compromise that perhaps would have worked for Google.
unfortunate that there is no central repository, but we
don't mean to suggest that that should be the end of the
inquiry.
Google can and should take in order to identify any manuals
or documents, which may not be one specific manual but may
be a series of manuals or may be a series of dictionaries,
or, you know, a compendium of information that other -- that
others at Google have access to but that we just don't know
It's
I think there are other good-faith steps that
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 33 PageID#
whether or not it exists.
We hope that the search terms we've agreed to in
good faith with Google will be an effective and efficient
way to obtain the information we need, but we don't
understand why it is burdensome for Google to ask its own
people whether or not this information exists and run that
to ground.
So we have concerns about timing.
THE COURT:
And we all have concerns about timing.
I mean, I think we all know the schedule that Judge Brinkema
has set for us, and we all have to work within that
schedule.
And I mean that.
to present a very large case against a very large company,
and a very large company has a lot at stake in defending
this case.
And, you know, honestly, you all have worked together really
very well to date.
the Court's appreciation for you all continuing to work
together.
order yesterday that I need to look at before I enter it.
But, you know, those are the kinds of things that the
parties should be doing.
United States to do that; it's in the interests of Google to
do that, and I want to encourage you all to continue to do
that.
And I'm sympathetic to both sides in this case.
You have a lot on your plate getting ready
But it's got to be done fairly and efficiently.
And I want to express my personal and
I mean, I know I've got requests for a joint
It's in the interests of the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 34 PageID#
This one, while I think very substantive
meet-and-confers -- sometimes the numbers don't mean much;
it's more of how the substance is going.
substance of the meet-and-confer sounds like it started late
last week and continued into this week, I mean, the real
back-and-forth on exchanging some information.
You know, the
You know, I've expressed to you all some concerns
that I had on what was presented to me in the pleadings
themselves as to not having a clear understanding of
what's -- what you're moving to have them do that they
haven't already agreed to produce, and I think you've
provided me with some explanation as to that.
explained why, you know, that kind of information is
important and needs to be produced.
word what you have asked for in your document requests or
not, I'm still uncomfortable with saying.
I think I've
Whether it is word for
My suggestion with having more technical people
involved in the discussion -- and, again, this is just -- I
have done it in the past and have seen it to be successful;
I've done it in the past and it hasn't been successful.
just want you to think about it and consider whether that is
a way that -- you know, sometimes technical people
understand what technical people need more than lawyers
hearing from a technical person as to what he or she needs
and then passing that information along and back and forth.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-
IPage 35 PageID#
I'm going to defer ruling on this issue today.
I'm going to give you two options, and you all can talk
about which of the two options you want and how we go
forward.
Option 1 is that we have another hearing next
Friday on this issue and that you all report to me by the
end of the day on Wednesday of next week as to where we are,
and then I will decide it next Friday.
other, somebody's going to be happy, and somebody's going to
One way or the
be sad.
The other issue -- and this would give you a
little bit more time -- is that I would hear -- and it's
unrelated but connected.
move the hearing that's set for two weeks from today to the
day before, that is Thursday, at 2:00.
with some conflicts and things like that.
that is a -- it would be specially set at 2:00 and will go
as long as we may need depending on the issues there.
think I'm going to get the opposition to that motion today.
I think I have that calendared right.
come in at the end of next week.
It's probable that I am going to
There's some issues
So -- and I think
And I
So the reply would
So your two options are either decide whether you
want me to hear this next Friday at 10:00 or the following
week on Thursday at 2:00 in conjunction with the other
motion to compel that has already been noticed that I'm
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 36 PageID#
going to be moving to Thursday at 2:00.
problem with that Thursday at 2:00, let me know.
enter the order until Monday.
to that, then maybe let me know by Monday which of the two
options you would rather pursue.
And if there's a
I won't
So if there's some issue as
There are benefits to both, and that's why I'm not
picking one.
I think the earlier, the better, but I'm
giving you the opportunity.
to have technical people involved in the discussions, you've
And, again, if you're inclined
got to schedule it and do it.
So next week may be pushing
it, but, again, we don't want to delay getting a decision so
that we can keep things on track.
Any questions at this point?
MS. GARCIA:
THE COURT:
MS. TARVER WOOD:
No.
Thank you, Your Honor.
Anything else from the government?
Thank you, Your Honor.
appreciate it.
THE COURT:
MR. BIAL:
THE COURT:
I appreciate it.
be adjourned.
Anything else from Google?
No, Your Honor.
Okay.
Well, thank you all very much.
You all have a nice weekend.
Court will
(Proceedings adjourned at 11:53 a.m.)
----------------------------------
We
I certify that the foregoing is a true and accurate
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 37 PageID#
transcription of my stenographic notes.
Case 1:23-cv-00108-LMB-JFA Document 252 Filed 06/05/23 Page 1 of 37 PageID# 2421
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs, :
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-108
Friday, June 2, 2023
Alexandria, Virginia
Pages 1-37
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The above-entitled motions hearing was heard before
the Honorable John F. Anderson, United States Magistrate
Judge. This proceeding commenced at 11:02 a.m.
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A P P E A R A N C E S:
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FOR THE PLAINTIFFS:
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KRISTIN STARR, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3700
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KELLY GARCIA, ESQUIRE
JULIA TARVER WOOD, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. 20530
(202) 894-4266
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TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7704
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A P P E A R A N C E S:
FOR THE DEFENDANT:
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ANDREW EWALT, ESQUIRE
SARA SALEM, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. 20005
(202) 777-4500
JOSEPH BIAL, ESQUIRE
AMY MAUSER, ESQUIRE
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, NW
Washington, D.C. 20006
(202) 223-7300
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CRAIG REILLY, ESQUIRE
LAW OFFICE OF CRAIG C. REILLY
209 Madison Street
Suite 501
Alexandria, Virginia 22314
(703) 549-5354
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COURT REPORTER:
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STEPHANIE M. AUSTIN, RPR, CRR
Official Court Reporter
United States District Court
401 Courthouse Square
Alexandria, Virginia 22314
(571) 298-1649
S.AustinReporting@gmail.com
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COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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P R O C E E D I N G S
THE DEPUTY CLERK:
United States of America, et
al. versus Google LLC, Civil Action Number 23-cv-108.
MS. STARR:
Good morning, Judge Anderson.
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Kristin Starr from the U.S. Attorney's Office.
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are my colleagues from the Department of Justice, Kelly
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Garcia and Julia Tarver Wood.
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And with me
I'll let the counsel from the State AG's Office
introduce themselves.
THE COURT:
Who's going to be arguing for the
United States?
MS. STARR:
Kelly Garcia will be arguing for the
United States, Your Honor.
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THE COURT:
Thank you.
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MS. GARCIA:
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THE COURT:
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MS. TARVER WOOD:
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MR. HENRY:
Good morning, Your Honor.
Good morning.
Good morning, Your Honor.
Good morning, Your Honor.
Ty Henry
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from the Virginia Attorney General's Office on behalf of the
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plaintiff states.
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THE COURT:
Thank you.
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MR. EWALT:
Good morning, Your Honor.
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Andrew Ewalt from Freshfields on behalf of Google.
I'm
24
joined by Joseph Bial from Paul, Weiss, who will be arguing
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this morning; as well as Sara Salem from Freshfields;
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Amy Mauser from Paul, Weiss; and, of course, Craig Reilly.
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THE COURT:
Okay.
Thank you.
All right.
3
Well, I got a motion that has two parts in front
4
of it.
5
deal with that completely, and then we'll get to the other
6
issue after that.
7
I want to deal with the custodian issue first and
So let's go ahead -- and I've read what everybody
8
submitted.
You know, it -- I appreciate your trying to keep
9
the briefs brief, but there's -- and this goes to both of
10
the issues, but it relates a little less so to the custodian
11
issue.
12
A significant amount of substantive information
13
really hasn't been provided to me.
14
identified 63 custodians.
15
relating -- at least provided to me, I assume you all know
16
it -- as to, you know, who these custodians really were,
17
what they really did, what their role really was based on
18
the information that you provided.
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provided some information as to those 63, and you've gotten
20
some information, you haven't gotten some information.
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They've agreed to produce custodians or follow-on custodians
22
for some but not the others.
23
You talk about we
There's no information
And, you know, they
But I don't have any real substance behind the
24
numbers, and that's a little concerning.
And I know your
25
argument is, you know, they had information back in -- or
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the person who was in this position back in 2020, it was
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agreed that they had substantive information and their
3
material issue had been reviewed and looked at.
4
take it from your argument it is -- I am to assume that that
5
position, or whatever the person did in that position in
6
2020, has an ongoing relationship, need or involvement in
7
the issues in this case.
8
not something that has really been shown to me at this
9
point.
10
And I -- I
But, I mean, that's an assumption;
You know, clearly, Google has acknowledged that in
11
some respects, and that some of the successor custodians
12
they've agreed to either are already on the list and are
13
currently doing jobs, functions, responsibilities that
14
are -- they acknowledge are -- but I'm at a little bit of a
15
loss as to how is it that I just assume a custodian in 2020,
16
a new person in that job duties and responsibilities is
17
going to have information between October of 2020 and now.
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MS. GARCIA:
Your Honor, good morning.
Kelly Garcia for the United States.
So today we're coming before you on only one
21
remaining issue.
With respect to the issue of successor
22
custodians, this morning we received an email from Google's
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counsel in which they agreed to identify the remaining
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successor custodians in order to cover the post-October 2020
25
time period and add those custodians to their list.
As we
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responded this morning, we consider this issue resolved.
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THE COURT:
Okay.
Well then, that whole
3
discussion was for nothing.
I guess I should have asked if
4
there any updates on that issue before I came in.
5
Well, that's -- so they're going to provide you
6
the information on the 18 of the 63 that you didn't have.
7
The 11 that they said, you know, we have successors for,
8
they're going to be looking at their documents and providing
9
information from October of 2020 to the present; is that
10
your understanding?
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MS. GARCIA:
12
THE COURT:
Exactly, Your Honor.
Is that consistent with what -- I had
13
a hearing at 10.
I didn't see any filings or anything to
14
indicate that that got worked out.
15
But is that the agreement for --
16
MR. BIAL:
17
Google.
Your Honor, yes.
Joseph Bial for
That is the agreement.
18
THE COURT:
Okay.
Well, thank you very much.
19
Let's move to the next issue, which is, honestly,
20
even more confusing to me.
21
in front of me today, you know, you've got the document
22
requests, you've got an -- well, first of all, have you
23
worked it out, I guess should be my first question, and if
24
not, then I'll continue to have some discussions.
25
MS. GARCIA:
And my concerns with what I have
I appreciate that, Your Honor.
We're
6
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still at an impasse, so this is still an issue that we would
2
like resolution on today.
3
4
5
THE COURT:
Okay.
Well, whether you're able to
get a decision from me today will be -- we'll find out.
But the thing that I am -- again, I'm not sure I
6
fully understand based on the briefing.
7
recognize you've got a lot of people who are dedicating
8
their full time and attention to this case and know a lot
9
more about this case than I do.
10
And, again, I
The issue -- overarching issue is they have agreed
11
to provide you with 9 of the 12 source code requests.
12
three, the last three, they've said, you know, either we
13
understand, we don't think it's relevant, we don't really --
14
you know, too hard to figure out what it is.
15
The
I don't understand when they say they're going to
16
be producing all the source code as to a particular project,
17
tool, whatever, what it is that's in the remaining amounts
18
that is not included in the first amount here.
19
So, help me understand what it is in those three
20
areas that seem to be at issue.
21
than just that, but I think that's a key issue that we need
22
to address.
23
And I know there are more
So -- and, again, you know, the first nine are
24
pretty specific.
"This project," they know what that
25
project is, they can go look.
The others are a little
7
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bit -- you know, source code that relates to -- pretty
2
amorphous.
3
particular project, proposal, whatever.
You know, how you do X, Y, Z, as opposed to a
4
So let me hear about that; okay?
5
MS. GARCIA:
6
As counsel acknowledged on a meet-and-confer
Yes, Your Honor.
7
yesterday, the way in which we described the last three
8
categories of our RFP may not be how Google's own engineers
9
describe it.
What we've tried is -- tried to do is
10
describe, with good-faith efforts, other information that we
11
believe would be relevant, although we have no code name or
12
specific other identifier in order to be able to give more
13
information at this time.
14
THE COURT:
Well, you know, this Project Bernanke
15
or Poirot or the dynamic revenue share or the predictive
16
highest bidder, the Smart Bidding, do they encompass what
17
you're asking for in any other requests or not?
18
MS. GARCIA:
Your Honor, they may.
And if I --
19
with this opportunity, I would like to be able to describe
20
those three remaining requests in plain language.
21
So with respect to -- with respect to RFP 39
22
Part 10, we've given a functional description here asking
23
for the source code or algorithms that choose what
24
exchanges, DSPs and Ad Networks are called on by each of the
25
Google products at issue in this case, Google Ad Manager,
8
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2
DV360 and Google Ads.
To the extent those are covered by any of the code
3
names that we've identified, we appreciate Google's efforts
4
to search for and identify responsive information, but our
5
concern is that if we don't already know a certain name of a
6
project, particularly a newer project that perhaps postdates
7
several documents and depositions that happened during the
8
investigation, we don't want to suggest that those -- that
9
source code or those algorithms are not relevant here.
10
THE COURT:
So, I mean, the document request that
11
you have served -- and that's what's in front of me, to some
12
extent -- and looking at 10:
13
related products that determine which exchanges, DSPs and Ad
14
Networks to call."
15
MS. GARCIA:
16
THE COURT:
17
18
"Any curation function for the
Yes, Your Honor.
So go back and tell me again what that
really means.
MS. GARCIA:
So by "curation function," we're
19
simply referring to the function of the algorithm that
20
chooses which exchanges, DSPs or Ad Networks are called by
21
the program.
22
source code that are specific to Google Ad Manager, DV360
23
and Google Ads.
24
25
We're limiting our request to algorithms and
THE COURT:
Okay.
All right.
What about 11?
"Any bid, price floor or auction optimization algorithm" -9
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any -- "product or feature."
2
MS. GARCIA:
3
With respect to Subsection 11, we believe we've --
4
we're asking for source code for any Google bid, price floor
5
or auction optimization algorithm, product or feature, and
6
we've provided counsel and in the papers some references to
7
complaint paragraphs in an attempt to give as much
8
information as we possibly could.
9
THE COURT:
Yes, Your Honor.
Why don't you think that's already
10
included in the, you know, other project information and
11
other things that you've asked for in 1 through 9?
12
MS. GARCIA:
Your Honor, it may very well be
13
included in those responses, but given the information that
14
we have to date and the information that we have from
15
Google, we cannot say for sure that it is.
16
THE COURT:
17
MS. GARCIA:
All right.
And 12.
Twelve asks for source code
18
pertaining to any automated means or manner of bidding,
19
whether on individual bids or a campaign-level basis.
20
Again, the complaint discusses these issues, and,
21
unfortunately, we don't have specific code names or other
22
identifiers that we can provide to Google based on the
23
information that we've been able to gather up to this point;
24
however, we believe that this is sufficient information for
25
Google to be able to take back to its client.
You know, the
10
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teams of engineers that work at Google, we suspect that they
2
have more information on what exactly these automated means
3
are called, and, unfortunately, we cannot provide any more
4
information other than what we have.
5
THE COURT:
Okay.
Well, what efforts have you
6
taken, other than good-faith consultation with counsel, to
7
figure out what it is?
8
a very narrow area as to, you know, what is it that we need
9
to do to, you know, figure out about, you know, curation
I mean, have you taken a 30(b)(6) on
10
function for products that determine the exchanges?
11
bid floor price auction optimization algorithm, product or
12
feature?
13
Or the
Or try and figure out something specific?
I mean, the problem is, if you're asking me to
14
order them to do something that is vague -- well, if it's
15
something they're already going to be providing, that's not
16
a problem, and I'll hear whether it really is, these three
17
things are subsumed in 1 through 9 or not.
18
your concerns.
19
some of these projects or programs or code names is limited,
20
if they limit it to that particular thing, and it also does
21
or relates to other things that you want to get some other
22
information that relates to that, but 1 through 9 seem very
23
specific; 10, 11 and 12 seem pretty broad, maybe vague,
24
sometimes catch-all.
25
when you read those three compared to the first nine.
And I understand
If a -- you know, if a directed reading of
Those are all terms that come to mind
And I
11
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don't want to be in a position of ordering somebody to do
2
something that isn't specific.
3
So what have you done in order to get specific
4
information from Google other than through lawyers and
5
communications with counsel?
6
MS. GARCIA:
Your Honor, during the course of our
7
investigation, we took several depositions, as you know.
We
8
posed these questions to individuals who we understood were
9
involved in the creation of this code, and those individuals
10
were not able to give us a complete understanding of the
11
code itself.
12
suggested that there are several engineers across Google who
13
work on issues like this.
14
pursued a 30(b)(6) at this time.
A lot of the testimony that we received
For that reason, we have not
15
This case is -- at its core, it's about
16
programmatic digital advertising tools, which is its code.
17
We've done our best to identify code names, and we have in 1
18
through 9, but, otherwise, we've done our best to articulate
19
what we are looking for.
20
What we told Google yesterday on a meet-and-confer
21
was that if Google's engineering teams have made good-faith
22
efforts to find responsive source code and cannot find it,
23
we would accept an affidavit from a Google employee with
24
knowledge explaining that they've taken steps to identify
25
this information and that it doesn't exist.
12
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We've also made clear that, in addition to the
2
affidavit, we would ask that Google stipulate that neither
3
party would rely on source code if it comes to light later
4
on that this information does, in fact, exist.
5
THE COURT:
Okay.
There's a fair amount of
6
discussion in your papers about your experts, him or her,
7
needing additional information and needing roadmaps and
8
guidelines and those kinds of things.
9
from an expert; I only have you saying your experts may need
10
11
I don't have anything
this kind of information.
What's the basis for your statement, and why is it
12
that you think what they have agreed to provide -- and they
13
have, you know, outlined in their opposition some
14
information they've agreed to search for and provide
15
relating to source code that they've agreed to provide, and
16
why is any more necessary?
17
MS. GARCIA:
Your Honor, the basis for this
18
request was from -- it was a request from our expert teams
19
and their consultation teams.
20
How they explained it to us -- I'm not someone who
21
has a degree in computer science, so I can't pretend to have
22
firsthand knowledge of this.
23
explained it to us was that they expect, having done this
24
type of work before, that there exists data dictionaries,
25
user manuals and other explanatory materials in the ordinary
13
But the way that they
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1
course of business at Google.
2
Google is a large organization and no one person is likely
3
to have a full understanding of all of the relevant code
4
across the company, they expect manuals exist to explain
5
these materials to someone within the organization who works
6
in a different department or someone who is new to the
7
organization, for example, a new hire.
8
9
THE COURT:
information?
They told us that since
Well, why do they need that
I understand they say they may have that
10
information, they're a big company, and they may have
11
guidelines and things, but why is it that your experienced
12
team of experts would need, you know, a roadmap from Google
13
to look at the information that they --
14
MS. GARCIA:
Your Honor --
15
THE COURT:
16
MS. GARCIA:
17
From what we have agreed to with plaintiffs in
-- have gotten or will be getting?
Thank you, Your Honor.
18
order to protect source code and respect the confidentiality
19
of the source code, our experts will be subject to
20
significantly restrictive provisions when they do access the
21
source code.
22
the morning to a certain point in the night.
23
go in and be observed by someone else.
24
but they can't write down any portion of the source code.
25
All of these strict conditions are agreed to already by the
14
They can only go in from a certain point in
They can only
They can take notes,
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parties in the protective order.
2
THE COURT:
And they're usual.
I mean, there's
3
nothing really unusual about that when you're dealing with
4
source codes.
5
MS. GARCIA:
So, Your Honor, what we're attempting
6
to do is arm our experts with the information that they've
7
told us they would need in order to understand, as
8
outsiders, not as Google engineers, the information that
9
they're reviewing when they go in to look at the source
10
code.
11
They are also doing this rather quickly.
12
of the reason why we've asked for Your Honor's intervention
13
at this stage is that we've -- you know, to date, we haven't
14
had a discussion about concrete timing, when our experts
15
will have access to this source code, when everything will
16
be up and ready.
17
ambiguous with respect to whether Google has identified any
18
of the source code to this date.
19
And part
The proposal that we've seen was a bit
Yesterday on the meet-and-confer, I put the
20
question to Google and was told that they cannot confirm
21
that they've identified any of the responsive source code.
22
23
THE COURT:
Not even for the nine items that
they've agreed?
24
MS. GARCIA:
25
THE COURT:
That's my understanding, Your Honor.
Okay.
Well -- all right.
15
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2
Well, what else would you like to say before I
hear from Google's counsel?
3
MS. GARCIA:
Your Honor, I'd like the opportunity
4
to address any other specific questions you have with
5
respect to, you know, our efforts to reach agreement up to
6
this point, any questions you have with respect to why we
7
believe the source code is so crucial to our case, or any
8
other questions you have in general.
9
THE COURT:
Well, I mean, I need to hear from
10
Google's counsel about what is not in 1 through 9 that may
11
be covered by the -- if you give a fair reading to 10, 11
12
and 12 and not a broad interpretation of that.
13
you've tried to explain to them what it really is that
14
you're looking for and want to have, and I think, you know,
15
are entitled to get that kind of information.
16
MS. GARCIA:
17
THE COURT:
18
I think
Thank you, Your Honor.
So let me hear from counsel.
Thank
you.
19
MS. GARCIA:
20
THE COURT:
Thank you.
First, I want to hear about the --
21
there are nine areas in which you have agreed to provide
22
source code from.
23
MR. BIAL:
24
THE COURT:
25
That's correct, Your Honor.
And where are you in the process of
getting that so that can start being looked at?
16
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MR. BIAL:
Sure.
So let me just take a step back.
2
The way that we identify that, and you mentioned
3
those seem to be less vague, and that's Request for
4
Production Number 39 that includes the 12 categories.
5
THE COURT:
6
MR. BIAL:
Right.
So we work with the folks at the
7
company to, you know, find out what does that mean, and, in
8
those instances, as you mentioned, those are projects and so
9
forth.
So we're able to identify those.
And then it's
10
still -- obviously it's the company's secret sauce, if you
11
will, but we've got the protocol here for source code.
12
think it's just going through the mechanics of that in order
13
to produce 1 through 9.
Okay.
So I
14
THE COURT:
I understand that.
15
Where are we in the mechanics of doing that --
16
MR. BIAL:
17
THE COURT:
Oh, it's --- so that we can actually, you know,
18
start doing something -- that is, the plaintiffs can start
19
seeing that information and making a determination as to
20
whether, you know, the information that you're providing is
21
going to be sufficient or not?
22
MR. BIAL:
23
24
25
Correct.
No, Your Honor.
That's a
fair question.
So that's actually -- right now we're in the
process of getting that prepared for production, but we're
17
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still going to have to figure out who is going to receive
2
it, and that might take, you know, a bit of time because
3
we've got to go through paragraphs 2 and 3 of the --
4
5
THE COURT:
"Prepared for production," let's focus
on that issue now.
6
MR. BIAL:
7
THE COURT:
Right.
When is it that you are anticipating,
8
if all of the other items get worked out, that you will be
9
in a position to allow somebody to go into the room and
10
start looking at this source code?
11
MR. BIAL:
12
THE COURT:
13
MR. BIAL:
14
THE COURT:
15
A couple weeks.
A couple of weeks?
Well, here's the thing, Your Honor -You've had these requests for how long
now?
16
MR. BIAL:
Yeah, no.
And it's really not that
17
part of it; it's really Sections 2 and 3 of the protocol.
18
They have to provide names to us, and then we have to vet
19
those names.
20
21
22
THE COURT:
You may not have understood my
question.
Assuming all -- and I want to know on the Google
23
side, when has that -- when will you be prepared to have all
24
the source code that you have agreed to produce available to
25
be reviewed?
18
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MR. BIAL:
2
THE COURT:
3
being acceptable.
4
weeks or months --
Within a week.
Okay.
All right.
So, that, I see as
You know, the idea that it's going to be
5
MR. BIAL:
6
THE COURT:
No, I didn't intend to -You know, we've got a process, we've
7
got a procedure, we've got to work through things, we're
8
preparing.
9
case to not be doing what you have agreed to do.
You know, I -- we don't have enough time in this
You know,
10
if we talk about a timetable for things that I order you to
11
do that you agreed to do, it may be different than that.
12
But -- okay.
13
So assuming the other issues, you know, who's
14
going to look at it, get the room set up and those kinds of
15
things, you would be in a position to have their experts be
16
able to start the process of looking at this information
17
within around a week; is that accurate?
18
MR. BIAL:
That's correct.
19
THE COURT:
20
problem is with 10, 11 and 12.
21
MR. BIAL:
All right.
Yeah.
So tell me what the
It's -- the question on 10, 11
22
and 12, I think is, it's not that -- I mean, these are
23
intelligent individuals that are trying to help identify
24
what we would be producing.
25
in the meet-and-confer that we had yesterday, Ms. Garcia
And let me give an example.
So
19
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mentioned bidding, which -- for 10, 11 and 12.
2
the client yesterday, and we're in a position to produce
3
that, if that's what they're actually intending to receive.
4
I think a meet-and-confer was probably the way to go, but we
5
are where we are.
6
We went to
But that -- once we understood it's, you know,
7
potentially bidding, then we were in a position to go and
8
start collecting that for production.
9
question about is that all they want, or are there other
10
But, again, that is a
things they want, and we don't know.
11
THE COURT:
Okay.
In these meet-and-confer
12
sessions, is it just the lawyers, or are technical people
13
involved?
14
technical skills and capabilities, but I'm talking about
15
in-house technical people involved in the discussions to try
16
and have a fair exchange of information as to what we need
17
and how can you get it together.
And I don't mean that lawyers can't also have
18
MR. BIAL:
19
THE COURT:
These have been counsel.
Okay.
Have you all explored the
20
possibility of having the people who really understand
21
things completely -- without things being lost in
22
translation to some extent -- having a discussion with
23
counsel to try and flesh some of these issues out?
24
25
MR. BIAL:
No, we have not yet done that.
we would be open to doing that.
I think
I think to the extent that
20
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they have more information or can give us more color, then
2
we could find the right individual.
3
probably do that in a very short order as well.
4
THE COURT:
But I think we could
Well, I assume, not only before this
5
motion got filed, but certainly after this motion got filed,
6
there have been some efforts to try and figure out what
7
could be captured in 10, 11 and 12 that isn't already
8
captured in 1 through 9.
9
MR. BIAL:
Right.
And I think if you look at some
10
of what's cited in the reply brief to the complaint, it
11
does, for some of those, when we're talking about 10, 11 and
12
12, cite back to precisely the ones that you mentioned
13
earlier, Bernanke, Poirot.
14
11 and 12.
15
government's position is that they're not limiting it to
16
that kind of thing.
17
mentioned, so that's the one that's on the table right now,
18
and we've gotten that one cleared.
19
So there is some of that in 10,
But I don't believe -- my understanding of the
THE COURT:
I think, you know, again, bidding was
Well, bidding is mentioned in 11 and
20
12.
21
automated means or manner of bidding, whether on individual
22
bids or on a campaign-level basis."
23
bidding.
24
25
It seems to be the primary focus of 12.
Eleven is:
It says:
"Any
So that seems to be
"Bid, price floor or auction
optimization algorithm, product or feature."
So 11 seems to
21
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be -- I don't know whether price floor or auction
2
optimization is part of bid or not.
3
relating to products that determine which exchanges are.
4
that isn't -- is that -- how does that relate to bidding?
5
MR. BIAL:
But 10 just talks about
Well, I don't know that it does.
So
I
6
mean, we had a conversation yesterday about those three, and
7
that was the one thing that was identified.
8
discussion of the three as a whole rather than going one by
9
one.
10
THE COURT:
11
MR. BIAL:
12
THE COURT:
13
MR. BIAL:
14
THE COURT:
15
MR. BIAL:
And it was a
Okay.
And I should just mention -Where are you on -I didn't mean to interrupt.
Go ahead.
It's never been the case that we don't
16
want to provide the information; it's really more of having
17
the back-and-forth, which we were having until -- or we
18
continue to have it, actually, after the motion to compel
19
was filed.
20
accomplish.
21
step at that because we now heard bidding was of interest,
22
and we were able to actually go with something specific like
23
you see in 1 through 9.
24
25
And I think that's what we were trying to
And I thought yesterday was a very productive
THE COURT:
Well, it's a little hard to understand
how bidding just came to light as something of interest when
22
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1
you look at 10 -- or certainly 11 and 12 that you've had in
2
your possession for a couple of months now; right?
3
they were interested in bidding information.
4
obviously seems to be something that is more focused at this
5
point.
6
7
But that
What about the guidebooks, dictionaries, that kind
of information?
8
9
Where are you on that issue?
MR. BIAL:
Yes.
So let me answer that in two
ways.
10
First, we have a set of search terms.
11
didn't -- we didn't attach it to our complaint.
12
20 pages and smaller than single-spaced.
13
Size 8 font.
14
15
That
THE COURT:
I mean, I
It's
It's probably
I probably wouldn't understand them
either.
16
MR. BIAL:
So it's pretty comprehensive.
17
We have that, and so they can run that.
18
would think that those would hit on these manuals.
19
that's Number 1.
20
So I
So
I think Number 2 -- and Your Honor put your finger
21
on this.
For better or for worse, I do antitrust; that's
22
all I do.
So when I'm working with an expert, I'm seeing
23
their models, their code.
24
how-to guide.
25
I've never heard them ask for a
I mean, they're the experts.
So, you know, I think they could be -- they have
23
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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that skill set.
And I think Your Honor said in the
2
March 26th hearing that experts can be working before they
3
get the information.
4
THE COURT:
So presumably they can do that.
Yeah.
But that, to some extent,
5
counters your argument, that if an expert has some roadmap
6
as to what this source code is intended to do or doing, when
7
they get into the, you know, safe space room or whatever it
8
is that they are limited in access and having information,
9
they have a base of knowledge to start work on and they're
10
not going in cold.
11
So there is some substance behind the request of,
12
you know, help me understand -- give me a primer on what I'm
13
going to be going in and looking at when I go in and start
14
seeing -- I assume it's not a small set of information in
15
the source code documents.
16
But it's something that, you know, an expert probably would
17
want to have some general familiarity with what the process
18
is or what terminology is being used or those kinds of
19
things.
20
21
22
I don't know how large it is.
Why wouldn't that be of help to them and of need
to them?
MR. BIAL:
Well, I think it could be.
And I'm not
23
denying that a guidebook before you -- you know, you go into
24
the secure room wouldn't be helpful to get you up to speed
25
in advance.
24
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We were asked that question, and we did run it to
2
ground, and it was not this kind of guidebook.
3
guess there's -- I don't think they're talking about a basic
4
guidebook; I think they're talking about something more
5
complex than that to go into that room and be looking at the
6
code in a short amount of time.
7
I mean, I
For that exercise, at least in the back-and-forth
8
that we had, which was not insignificant, we were not able
9
to locate those.
Again, I would point back to the search
10
terms, which I think -- if that doesn't turn something up, I
11
think it probably really doesn't exist.
12
the purposes of our collection and talking to the various
13
individuals who we thought would have knowledge of that, we
14
did not come across such a how-to guide.
15
THE COURT:
Okay.
But at least for
Well, give me your
16
understanding of where the parties are based on the
17
conversation that you had yesterday.
18
MR. BIAL:
Sure.
I think in terms of the overall
19
motion to compel, clearly we've resolved the successor
20
custodians.
21
going to tell you exactly that I thought we did and we
22
would.
23
irrespective of the fact that we got it done this morning.
24
25
And had we not done that this morning, I was
So that was always going to be taken care of
With respect to the source code, I think 1 through
9, I think we can also agree that those are -- you know,
25
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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1
those are behind us.
2
minds on those nine.
3
I think those are a meeting of the
And 10 through 12, as I mentioned earlier, I
4
think, you know, additional discussions between the parties
5
on a short leash -- because I understand from what you said
6
earlier, we don't have time for that -- would probably make
7
the most sense.
8
successful, that you'll hear from the government in very
9
short order.
10
And I think if that meet-and-confer is not
THE COURT:
Okay.
What about in -- you know,
11
you're talking I think more directly about 39, but the other
12
requests that are part of the guidebook dictionary --
13
MR. BIAL:
Right.
14
THE COURT:
15
MR. BIAL:
16
Again, same thing.
The materials.
-- and the materials.
Right.
Right.
I mean, originally I think the
17
search terms were more geared toward that, but I think
18
obviously if they collect that material, then the
19
guidebooks, it would be helpful to them.
20
pointed out, if they had something like that, it's helpful;
21
it's not unhelpful.
22
THE COURT:
And, as you
That process would turn that up.
Well, explain to me why it would be
23
difficult for Google to find out whether there are -- and
24
absent -- putting search terms aside and, you know,
25
automatic -- you know, one would -- again, I don't know
26
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Google, don't know how complicated all of this is, but it
2
doesn't seem that difficult to find somebody at Google that
3
would know whether they have such things as dictionaries or
4
guidebooks or other kinds of information that one would, you
5
know, want to -- even if they don't get hit on search terms,
6
would be in a position to produce if they're there and
7
exist.
8
9
MR. BIAL:
example.
Right.
Well, let me give you an
So pseudocode -- they asked for pseudocode central
10
repository, and if that existed -- I mean, we absolutely
11
went to the client, and they were not aware of such a thing.
12
And so I think, you know, the best answer to that
13
is really going to those search terms.
14
were to turn up and we found out about it, we didn't know
15
about it -- I think they're obviously doing good-faith
16
searches -- we would turn it over immediately.
17
it clear that they want that sort of information.
18
came across it, we would turn it over immediately.
19
THE COURT:
And if something
They've made
If we
Well, the problem you face -- and,
20
again, I'm giving you a scenario that I hope would never
21
happen -- is that you don't produce that kind of
22
information, and that in the middle of a deposition,
23
somebody talks about a dictionary, glossary or cultural
24
guide that is well known within the Google team and the
25
plaintiffs look at each other and say, did we get that?
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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they say, no.
I mean, that's why I'm asking you.
2
this is to make sure that you don't get yourself in
3
trouble --
4
MR. BIAL:
5
THE COURT:
Again,
Correct.
-- is not just relying on these, you
6
know, pages of search terms, but on some specific
7
information, going out and making an individualized inquiry
8
about does that kind of information exist, and, if so, where
9
is it.
10
MR. BIAL:
Right.
Understood.
11
I mean, again, we would know as well once we do
12
those searches and before the depositions begin.
13
something turns up, they would get it.
14
made very clear that that's something that is expected and
15
that would be something ordinarily pursued in discovery.
16
17
THE COURT:
Okay.
All right.
And if
But I think you've
Well, let me just
hear a little bit more from government counsel.
18
MR. BIAL:
19
THE COURT:
20
Was the meet-and-confer yesterday in person or
21
22
23
Thank you, Your Honor.
Thank you.
over the phone or Zoom or how was that done?
MS. GARCIA:
Yesterday's meet-and-confer was on
Microsoft Teams, Your Honor.
24
THE COURT:
25
MS. GARCIA:
Okay.
It was the, I want to say ninth
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meet-and-confer we have had since the outset of our
2
litigation since we were -- since we received Google's
3
objections to our RFPs, including our source code RFPs in
4
mid-April.
5
counsel -- not counsel from this firm, but counsel from
6
another firm representing Google -- and began good-faith
7
discussions about how Google could go about responding to
8
this -- these requests.
9
That same week, we met and conferred with
During the course of that time, we had discussions
10
about how Google's concerns with respect to source code had
11
to do a lot with the fact that it was very highly sensitive,
12
and we proposed an alternative if it existed.
13
We asked that Google go back to its client -- this
14
was in early May -- and search for and ask if there was a
15
central repository for pseudocode.
16
that pseudocode is a plain-language explanation of source
17
code.
18
Our understanding is
We proposed that if Google could do this within a
19
reasonable time and get our experts that material within a
20
reasonable time -- which we would have discussed had they
21
discovered a central repository -- we would take only two
22
weeks with that source code and come back to them and say
23
whether or not there is more information that we need or
24
whether or not what they've provided should suffice.
25
three weeks, we were told there was no central repository
After
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1
2
for pseudocode.
We continued to have good-faith discussions.
3
Yesterday's discussion with Mr. Bial was the first that he
4
had joined, but it was not the first time that we have
5
discussed this.
6
earlier point, we told counsel that we would be prepared --
7
if they told us that they were prepared to have our experts
8
come in and examine the source code, that same day we would
9
get them a list of names of individuals who could come in as
10
11
We told counsel that -- going back to an
soon as possible.
We would welcome the opportunity to speak with
12
their data scientists about these issues.
13
anything from counsel about that opportunity.
14
extent they're willing to have data scientists -- and I say
15
"scientists" because I strongly believe that there's not
16
going to be one person at the company who has this
17
information.
18
THE COURT:
19
MS. GARCIA:
We haven't heard
But to the
Right.
But if they're willing to have prompt
20
discussions with those individuals, we would welcome that
21
opportunity.
22
The first time that they told us that there wasn't
23
clarity with respect to 10 -- Numbers 10 through 12 was
24
May 26th in a letter that was --
25
THE COURT:
What did the objections to those
30
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1
requests say?
2
3
MS. GARCIA:
Well, the objections, I'll say
without looking, did describe -- object that they are vague.
4
THE COURT:
I don't have the objections in front
5
of me, but I suspect I know that they would talk about being
6
vague or indefinite --
7
MS. GARCIA:
8
THE COURT:
9
MS. GARCIA:
10
THE COURT:
Yes, they're --- or whatever; so ...
Pardon me, Your Honor.
Yes.
So, I mean, obviously you were put on
11
notice within 15 days after you served it that that was a
12
potential issue relating to what you had served.
13
MS. GARCIA:
That's fair, Your Honor.
14
What we've tried to do is get to the heart of --
15
to the extent that these vagueness objections were
16
objections made to every single RFP that we posed, what it
17
is that we can do in order to come to a meeting of the minds
18
as to what these terms mean.
19
with respect to several other RFPs.
20
THE COURT:
21
MS. GARCIA:
And we've made good efforts
All right.
We haven't received a single document
22
from anyone's custodial files responsive to any search terms
23
to date.
24
dictionaries and other important information that our
25
experts need in order to have sufficient context to read the
31
This information about manuals and data
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1
code may not be in custodial files.
2
not be.
3
It may be, but it may
One concern that we raised yesterday was that we
4
do not know when we will receive a production from Google of
5
any documents that hit on any of the search terms in the
6
exhibit that Mr. Bial brought today.
7
one way or the other whether or not the search terms are
8
going to be sufficient.
9
So we can't tell you
We suspect that, given the tight timeline that our
10
experts will be facing and the very strict rules in which
11
they have to oblige in order to review the code, that
12
they'll want this information more quickly than we would
13
be -- otherwise be able to get if we waited for a production
14
from Google responsive to search terms.
15
With respect to the central repository, that was
16
part of our attempt to reach resolution and have a
17
compromise that perhaps would have worked for Google.
18
unfortunate that there is no central repository, but we
19
don't mean to suggest that that should be the end of the
20
inquiry.
21
Google can and should take in order to identify any manuals
22
or documents, which may not be one specific manual but may
23
be a series of manuals or may be a series of dictionaries,
24
or, you know, a compendium of information that other -- that
25
others at Google have access to but that we just don't know
32
It's
I think there are other good-faith steps that
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1
whether or not it exists.
2
We hope that the search terms we've agreed to in
3
good faith with Google will be an effective and efficient
4
way to obtain the information we need, but we don't
5
understand why it is burdensome for Google to ask its own
6
people whether or not this information exists and run that
7
to ground.
8
9
So we have concerns about timing.
THE COURT:
And we all have concerns about timing.
I mean, I think we all know the schedule that Judge Brinkema
10
has set for us, and we all have to work within that
11
schedule.
12
And I mean that.
13
to present a very large case against a very large company,
14
and a very large company has a lot at stake in defending
15
this case.
16
And, you know, honestly, you all have worked together really
17
very well to date.
18
the Court's appreciation for you all continuing to work
19
together.
20
order yesterday that I need to look at before I enter it.
21
But, you know, those are the kinds of things that the
22
parties should be doing.
23
United States to do that; it's in the interests of Google to
24
do that, and I want to encourage you all to continue to do
25
that.
And I'm sympathetic to both sides in this case.
You have a lot on your plate getting ready
But it's got to be done fairly and efficiently.
And I want to express my personal and
I mean, I know I've got requests for a joint
It's in the interests of the
33
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This one, while I think very substantive
2
meet-and-confers -- sometimes the numbers don't mean much;
3
it's more of how the substance is going.
4
substance of the meet-and-confer sounds like it started late
5
last week and continued into this week, I mean, the real
6
back-and-forth on exchanging some information.
7
You know, the
You know, I've expressed to you all some concerns
8
that I had on what was presented to me in the pleadings
9
themselves as to not having a clear understanding of
10
what's -- what you're moving to have them do that they
11
haven't already agreed to produce, and I think you've
12
provided me with some explanation as to that.
13
explained why, you know, that kind of information is
14
important and needs to be produced.
15
word what you have asked for in your document requests or
16
not, I'm still uncomfortable with saying.
17
I think I've
Whether it is word for
My suggestion with having more technical people
18
involved in the discussion -- and, again, this is just -- I
19
have done it in the past and have seen it to be successful;
20
I've done it in the past and it hasn't been successful.
21
just want you to think about it and consider whether that is
22
a way that -- you know, sometimes technical people
23
understand what technical people need more than lawyers
24
hearing from a technical person as to what he or she needs
25
and then passing that information along and back and forth.
34
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
I
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I'm going to defer ruling on this issue today.
2
I'm going to give you two options, and you all can talk
3
about which of the two options you want and how we go
4
forward.
5
Option 1 is that we have another hearing next
6
Friday on this issue and that you all report to me by the
7
end of the day on Wednesday of next week as to where we are,
8
and then I will decide it next Friday.
9
other, somebody's going to be happy, and somebody's going to
10
11
One way or the
be sad.
The other issue -- and this would give you a
12
little bit more time -- is that I would hear -- and it's
13
unrelated but connected.
14
move the hearing that's set for two weeks from today to the
15
day before, that is Thursday, at 2:00.
16
with some conflicts and things like that.
17
that is a -- it would be specially set at 2:00 and will go
18
as long as we may need depending on the issues there.
19
think I'm going to get the opposition to that motion today.
20
I think I have that calendared right.
21
come in at the end of next week.
22
It's probable that I am going to
There's some issues
So -- and I think
And I
So the reply would
So your two options are either decide whether you
23
want me to hear this next Friday at 10:00 or the following
24
week on Thursday at 2:00 in conjunction with the other
25
motion to compel that has already been noticed that I'm
35
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going to be moving to Thursday at 2:00.
2
problem with that Thursday at 2:00, let me know.
3
enter the order until Monday.
4
to that, then maybe let me know by Monday which of the two
5
options you would rather pursue.
6
And if there's a
I won't
So if there's some issue as
There are benefits to both, and that's why I'm not
7
picking one.
I think the earlier, the better, but I'm
8
giving you the opportunity.
9
to have technical people involved in the discussions, you've
And, again, if you're inclined
10
got to schedule it and do it.
So next week may be pushing
11
it, but, again, we don't want to delay getting a decision so
12
that we can keep things on track.
13
Any questions at this point?
14
MS. GARCIA:
15
THE COURT:
16
MS. TARVER WOOD:
17
No.
Thank you, Your Honor.
Anything else from the government?
Thank you, Your Honor.
appreciate it.
18
THE COURT:
19
MR. BIAL:
20
THE COURT:
21
I appreciate it.
22
be adjourned.
Anything else from Google?
No, Your Honor.
Okay.
Well, thank you all very much.
You all have a nice weekend.
Court will
23
(Proceedings adjourned at 11:53 a.m.)
24
----------------------------------
25
We
I certify that the foregoing is a true and accurate
36
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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