REPLY to Response to Motion re [214] MOTION to Compel and for In Camera Review filed by Commonwealth of Virginia, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Illinois, State of Michigan, State of Minnesota, State of Nebraska, State of New Hampshire, State of New Jersey, State of New York, State of North Carolina, State of Rhode Island, State of Tennessee, State of Washington, State of West Virginia, United States of America. (Attachments: # (1) Appendix, # (2) Exhibit 1-6 (slipsheet))(Teitelbaum, Aaron)
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR
IN CAMERA INSPECTION AND TO COMPEL PRODUCTION
OF DOCUMENTS WRONGFULLY WITHHELD AS PRIVILEGED
In response to Plaintiffs’ motion to compel, Google withdrew or narrowed its privilege
claims for six of the twenty-one documents (nearly 30%) challenged by Plaintiffs. While
Plaintiffs welcome the production of these documents, Google’s reversal of its prior privilege
determinations underscores the overbreadth of Google’s claims of privilege in the first place. It
also highlights the pervasiveness of the company’s Communicate with Care policy, designed to
shield from discovery important business discussions through improper assertions of privilege.
Google continues to assert privilege claims for nineteen documents within the sample of
documents identified in Plaintiffs’ initial motion, but it has failed to meet its burden to
substantiate those claims. Resting primarily on a conclusory, boilerplate declaration from inhouse counsel and an earlier 30(b)(6) deposition where its corporate representative repeatedly
refused to answer proper questions, Google asks this Court to simply trust its blanket assertions
of privilege, forgoing in camera review. But Google’s arguments and factual support for its
claim fall short of what is required to substantiate claims of privilege over broad swaths of
documents created by non-lawyers, that serve obvious business purposes, and which appear to be
merely new iterations of prior ordinary course business analyses. At a minimum, Google’s Page 2 PageID#
response does not explain why in camera review would not be helpful “for the Court correctly to
apply the Fourth Circuit’s attorney-client privilege law, including the limitations that are inherent
in that body of law,” F.T.C. v. Reckitt Benckiser Pharm., Inc., 2015 WL 1062062 at *8 (E.D. Va.
Mar. 10, 2015), such that this Court should decline to exercise its “broad discretion to determine
whether a privilege is properly asserted” via in camera inspection. Fed. Election Comm’n v.
Christian Coal., 178 F.R.D. 456, 461 (E.D. Va. 1998). Accordingly, the Court should review in
camera the documents Google continues to withhold1 and order the production of any portion of
those documents for which Google has failed to support its claims of privilege.
ARGUMENT
I.
Google’s Communicate with Care Policy Has Been Used To Shield Documents from
Discovery and Its Privilege Assertions Have Been Pervasively Overbroad and
Internally Inconsistent.
In its Opposition, Google claims Plaintiffs’ challenges to its claims of attorney-client
privilege are based on mere “speculation” that do not provide “a factual basis sufficient to
support in camera inspection.” Op. at 2-3. The challenged documents for which Google has
abandoned or narrowed its claims of privilege suggest otherwise.
First, Google claims that it has “in good faith opted to drop its claim of privilege” over
Document 4 (GOOG-DOJ-AT-01019463), which Plaintiffs had highlighted in their motion as a
likely exemplar of Google’s Communicate with Care policy in action. The unredacted version of
that document, which Google recently produced, confirms that Plaintiffs’ concerns were not
mere “speculation” and are, instead, fully warranted.
Attached as Appendix A is a revised version of the appendix attached to Plaintiffs’ motion to
compel that reflects the recent production by Google of certain challenged documents.
Attached as Ex. 1 is the redacted version of GOOG-DOJ-AT-01019463 as of the time the
Motion to Compel was filed. Attached as Ex. 2 is the unredacted version of GOOG-DOJ-AT01019463, which Google produced to Plaintiffs on the evening of June 2, 2023. Page 3 PageID# 2464Page 4 PageID#
assertions.3 Document 3 is a
. According to
Google’s privilege log, the document was redacted because it reflected “
.” However, like Document 4, the previously-redacted
portions of Document 3 contain no legal advice at all. Instead, the redacted portions contain
commentary from
explaining, inter alia, that
the
. Notably,
is not listed as a
stakeholder for either section where redactions were lifted; he only appeared as a stakeholder in
the separate “
” section of the document, which remains redacted.
Third, Google’s inconsistent application of its privilege claims is apparent in its decision
not to remove any redactions from Plaintiffs’ other exemplar documents. This includes several
exemplars that share similar characteristics to the six documents for which Google removed
some or all of its prior redactions. For example, Google did not remove any redactions from
Documents 16 (GOOG-DOJ-AT-00205841) and 19 (GOOG-DOJ-AT-01007207), claiming both
are protected by attorney-client privilege and work product protection. Both, however, are email
threads involving only Google business people discussing strategic business issues without any
apparent attorney presence or involvement.
Attached as Ex. 3 is the redacted version of GOOG-DOJ-AT-00029680 as of the time the
Motion to Compel was filed. Attached as Ex. 4 is the less-redacted version of GOOG-DOJ-AT00029680, which Google produced to Plaintiffs on the evening of June 2, 2023. Page 5 PageID#
Google’s belated, selective removal of redactions from several of Plaintiffs’ exemplar
documents are indicative of Google’s inconsistent and overbroad approach to privilege;
collectively, they demonstrated ample factual basis to support in camera inspection of the other
exemplar documents identified in Plaintiffs’ motion. Further, in light of Google’s withdrawn
privilege claims for two documents initially challenged by Plaintiffs, which reduced the sample
of documents for the Court to review in camera, Plaintiffs respectfully request that the Court also
review in camera the two following additional documents that are similar to the withdrawn
documents, but where Google persists in asserting privilege. GOOG-DOJ-12949396; GOOGDOJ-15088294.II.
The Court Has Broad Discretion to Review Documents In Camera.
Google argues that its privilege claims are exempt from in camera review because it has
submitted a single declaration parroting the general legal standard for work product protection
and provided limited testimony in response to certain questions posed to its corporate
representative at a 30(b)(6) deposition. Op. at 7-8. However, the cases cited by Google
demonstrate that courts regularly exercise their discretion to conduct in camera inspection based
on a more minimal showing than has made been here, and even where privilege claims appear on
their face to be strong. See Op. at 7. Courts take this conservative approach to account for the
Google’s strategy of narrowing its privilege claims only when responding to a motion to
compel is not new. See Dkt. No. 335 at 3, United States v. Google, No. 20-cv-03010 (D.D.C.
Apr. 7, 2022) (describing Google’s production of approximately 9,000 erroneously withheld
emails after the United States sought sanctions). Although Google’s recent production mooted
Plaintiffs’ challenge to two of the original twenty-one documents for which Plaintiffs sought in
camera inspection, Google’s belated production of previously-withheld documents only once its
privilege determinations were brought to the Court’s attention does not give Plaintiffs much
comfort about the remaining documents Google is withholding from production, especially
where Google has redacted apparent business discussions despite the lack of any indication that a
lawyer has provided legal advice. Page 6 PageID#
inherent difficulty any challenging party—without access to the documents at issue—has in
presenting detailed evidence to challenge the withholding party’s privilege claims. This is why
the showing necessary to seek in camera review is minimal. Indeed, Plaintiffs need only provide
“a factual basis sufficient to support a reasonable, good faith belief that in camera inspection
may reveal evidence that information in the materials is not privileged.” In re Zetia (Ezetimibe)
Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16, 2019); see also NLRB v. Interbake
Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011) (directing district court to conduct in camera
review of email chain involving non-lawyers where defendant’s privilege log made a prima facie
showing the privilege applied but defendant had “not presented a document-by-document
privilege analysis”); Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, (4th Cir. 1992) (remanding for in camera review where district court relied solely upon privilege
log to uphold claims); cf. United States v. Zolin, 491 U.S. 554, 572 (1989) (explaining in the
crime-fraud context that “a lesser evidentiary showing is needed to trigger in camera review than
is required ultimately to overcome the privilege” and the “threshold we set, in other words, need
not be a stringent one”). Plaintiffs easily meet the required threshold to justify in camera review
of the exemplar documents here.
For example, in Zetia—a case cited repeatedly by Google in its Opposition—the court
conducted in camera review of a set of documents analyzing a potential patent litigation
settlement notwithstanding defendants’ submission of multiple declarations from both business
and legal employees asserting that the materials were created in anticipation of litigation, at the
direction of counsel, served solely a legal purpose, and would not have been created otherwise.
2019 WL 6122012, at *1-2. There, “notwithstanding the strength of [the defendant’s] privilege
claims, the parties’ disagreement over the claw back documents [was] sufficiently narrow that Page 7 PageID#
the court agreed to in camera inspection.” Id. at *5. For the reasons identified below, Google has
put forward far less support for its privilege claims than the defendant in Zetia, and therefore in
camera review of the limited set of documents at issue is appropriate.
III.
Google’s Work Product Protection Claims Fail Because the Prospect of Litigation
Alone Is Insufficient to Protect Otherwise Inevitable Business Discussions.
In its Opposition, Google argues that because Google has been under investigation by
multiple antitrust enforcers since early 2019, and because the code-named projects involve
potential changes to Google’s business practices that might mitigate or alleviate regulators’
concerns, all documents discussing any aspect of the business practice reviews should be
withheld as privileged. The law in this Circuit does not sweep so broadly. See ePlus Inc. v.
Lawson Software, Inc., 280 F.R.D. 247, 251 (E.D. Va. 2012) (“Thus, the application of the
privilege laws serves an important purpose in our legal system, but that application can also
‘remove otherwise pertinent information from the fact finder, thereby impeding the full and free
discovery of the truth.’ Because of this adverse result, in the Fourth Circuit, work product and
attorney-client privilege are construed ‘quite narrowly.’” (citations omitted)).
Google’s brief and supporting declaration highlight the involvement of counsel in the
projects, but the mere involvement of counsel does not as a bright-line rule confer privilege over
the projects. Google suggests that neither the extensive involvement of non-lawyers in the codenamed projects nor the use of pre-existing business analyses in the projects vitiates its broad
privilege claims. While neither factor is dispositive, courts regularly consider the individuals
involved in a project and the business purposes for which the related analyses were used when
considering claims of privilege.5 See, e.g., In re Dominion Dental Servs. USA, Inc. Data Breach
Google argues that its work product claim “hinges on why a document was created” and “not
on whether it has a ‘nexus’ to business decisions.” Op. at 13. The cases Google cites for this Page 8 PageID#
Litig., 429 F. Supp. 3d 190, 193-94 (E.D. Va. 2019) (finding that project completed “under the
direction of Counsel” nonetheless was not privileged where analyses were “used for a range of
non-litigation purposes”). For example, in In re Capital One Consumer Data Sec. Breach Litig.,
2020 WL 2731238, at *4, 7 (E.D. Va. May 26, 2020), this Court rejected defendant’s claim of
privilege over work performed by a cybersecurity vendor “at the direction of counsel” in the face
of “substantial claims” following a data breach. In doing so, the Court concluded that the
analyses “would have been prepared in substantially similar form but for the prospect of that
litigation,” in part because similar analyses had been performed in the past and used by the
defendant for business purposes. Id. at *4-5 (observing that the report was used by defendant for
“various business and regulatory purposes”). The court properly placed the burden on the
defendant to “show[] how it would have investigated the incident differently if there was no
potential for litigation.” Id.
To evaluate whether a document prepared by business people is substantially similar to
those the business would have prepared in the ordinary course, courts typically examine the
substance of the documents in camera. This allows the court to order production of a redacted
copy, “[i]f opinions and theories about the litigation are only part of a document otherwise
discoverable.” Nat’l Union, 967 F.2d at 985; see also Asghari–Kamrani v. United Servs. Auto.
Ass’n, 2017 WL 553402, at *6 (E.D. Va. Jan. 20, 2017). In order to ensure that a party’s
assertion of work product is not overbroad, courts typically “must determine, from an
proposition make clear, however, that even if “[t]here is little doubt under the evidence that [a
party] had the prospect of litigation in mind when it directed the preparation of the [document],”
work product protection “really turns on whether it would have been prepared irrespective of the
expected litigation” in “substantially similar form.” United States v. Adlman, 134 F.3d 1194,
1203-04 (2d Cir. 1998). Such a determination necessarily requires an assessment of the nexus
between the document at issue and ordinary course business analyses. Page 9 PageID#
examination of the documents or their circumstances, whether they were prepared in anticipation
of litigation or for trial.” Asghari–Kamrani, 2017 WL 553402, at *6.
Conclusory affidavits and declarations merely reciting the legal standard are insufficient.
See Dominion Dental, 429 F. Supp. 3d at 194 (declining to credit defendants’ affidavit that
“makes the bare assertion that ‘without the threat of litigation . . . the Mandiant Report would not
have been prepared in a substantially similar form and may not have been necessary at all’”).
Courts require the party asserting work product protection to make a “specific demonstration of
facts supporting the requested protection, preferably through affidavits from knowledgeable
persons.” E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 WL 1489966, at *3 (E.D. Va.
Apr 13, 2010) (internal quotation marks omitted). Google “cannot simply rely on conclusory
statements” but rather must provide “specific factual support” for its work product claim.Hempel v. Cydan Dev., Inc., 2020 WL 4933634, at *5-6 (D. Md. Aug. 24, 2020).
In support of its opposition, Google relies upon a single declaration from an in-house
counsel7 to substantiate its work product assertions over the code-named business projects. See
Mot. to Compel at 18-22 (describing the business nature of each project). The declaration is light
on facts and falls far short of the level of detail required to support a work product claim here,
where the projects involve potential business changes to Google products, pricing and strategy.
By simply parroting the legal standard for work product in the declaration and asserting the
For example, in Adair v. EQT Prod. Co., 294 F.R.D. 1, 6 (W.D. Va. 2013), a case relied upon
by Google, the declarant provided a detailed explanation of their role with respect to the
challenged documents and specific information on the nature, origin, and purpose of the
privileged documents. See Dkt. No. 432-1, Adair v. EQT Prod. Co., No. 10-cv-00037 (W.D. Va.
2013).
The declaration is submitted by the same counsel copied into the Communicate-With-Care
email chain in Document 4 (at 3) for which Google has withdrawn its claim of privilege. Page 10 PageID# 2471Page 11 PageID#
he simply asserts they “reveal the substance,” or were “created as part,” of the
projects. Id. ¶ 11-13. But that is not the standard for work product protection.
The declarant provides no additional information about the purpose, use, or nature of
any specific document, which would allow the Court to assess independently whether
the document—or portions thereof—would have been prepared in substantially the
same form but for reasonably-anticipated litigation. Indeed, the declarant does not
describe the documents in any detail whatsoever.
At best, the declaration confirms that the documents were created at a time when Google
was subject to multiple governmental investigations, some of which could potentially lead to
litigation. But the Fourth Circuit has warned that the mere possibility of litigation is insufficient
to cloak ongoing business analyses and decision-making in a blanket claim of privilege. As the
Fourth Circuit has explained, “because litigation is an ever-present possibility in American life, it
is more often the case than not that events are documented with the general possibility of
litigation in mind . . . [y]et, ‘[t]he mere fact that litigation does eventually ensue does not, by
itself, cloak materials’ with work product immunity.” Nat’l Union, 967 F.2d at 984. The rule
Google seeks to advance ignores these concerns. It would provide greater work product
protection over the business documents of large companies that frequently face the threat of
litigation while affording less protection to smaller companies that draw fewer suits. This is why
courts look beyond the mere prospect of litigation at the time a document is created and instead
consider the document’s nature, content, and purpose.
The omissions from Google’s declaration are not oversights. Rather, they are consistent
with the positions taken by Google’s counsel during the pre-complaint 30(b)(6) deposition on the
code-name projects. During that deposition, Google restricted its witness from answering basic Page 12 PageID#
questions concerning the nature, purpose, or business use of the challenged documents. In fact,
Google’s corporate representative refused to answer numerous questions that sought basic
information needed to assess Google’s assertion that no portion of any of the project documents
would have been created in substantially the same form but for litigation.
For example, Google’s corporate designee refused to identify what data sources Google’s
non-lawyer business employees drew upon in their work on the projects or whether the projects
incorporated any pre-existing business analyses, which might suggest the code-name projects
were continuations of ordinary course business analysis. See, e.g., Ex. 5, 30(b)(6) Tr. at 119:314; Tr. 158:14-159:10.8 Likewise, Google’s designee refused to say whether any financial
forecasts were created as part of the code-name projects, including whether those forecasts might
be used in Google’s ordinary course of business operations.9 Ex. 5, 30(b)(6) Tr. 136:11-140:1.
Google’s representative also refused to answer questions about whether there were any successor
projects, notwithstanding the fact that Google has taken the position that some predecessor or
successor projects are not privileged, such as the predecessor project for
that bore
the same name.10 Ex. 5, 30(b)(6) Tr. 143:18-144:2; Op. at 16 n.16. As Google’s counsel
In its Opposition, Google argues that “work-product materials do not lose their work-product
status because they incorporate ordinary-course analyses or content,” Op. at 12, but whether the
materials substantially incorporate or rely upon ordinary-course business analyses is relevant to
whether the document would have been created in substantially the same form but for litigation
as a continuation of the prior business workstream. Likewise, any “stand-alone forecasts or
financial data” contained in the documents “would not be subject to a claim of privilege” and
must be separately produced if responsive to Plaintiffs’ discovery requests. See Zetia, 2019 WL
6122012, at *5.
Notably, during the course of the deposition, Google’s non-lawyer corporate representative
often declined to answer on the basis of privilege even before counsel objected. See, e.g., Ex. 5,
30(b)(6) Tr. 136:11-13.
In response to Plaintiffs’ motion, Google removed its redactions in Documents 15 (GOOGDOJ-AT-00660900) and 18 (GOOG-DOJ-AT-00660895) because it had incorrectly contended
the document “related to the non-privileged Banksy” project instead of the “work-productPage 13 PageID#
explained during that deposition, “
,”
while taking the position the United States was not allowed to ask about any “
” of the projects. Ex. 5, 30(b)(6) Tr. 136:11-140:1. Without such information, and absent
in camera review, it is difficult to assess Google’s blanket assertion that none of the documents
would have been created in a similar form but for litigation.
To be clear, Plaintiffs do not seek any portions of the documents that discuss litigation
strategy or counsel’s mental impressions of Plaintiffs’ potential or actual claims. Plaintiffs are
entitled, however, to non-privileged business analyses by Google’s business employees relating
to business operations and decisions that are relevant to Plaintiffs’ claims and/or Google’s
defenses. Simply because Google is subject to investigation or litigation, and has been for years,
it should not be allowed to shield this non-privileged business information on relevant topics
from discovery.
IV.
Plaintiffs’ Motion to Compel Is Timely and Appropriate.
Google cannot deny that the United States promptly raised its concerns with Google’s
privilege claims during the course of the pre-complaint investigation or that the parties had
extensive communications on these issues during the pre-complaint investigation. (Indeed, as a
result of those extensive discussions, Google produced over 50,000 documents it had previously
withheld on purported privilege grounds.) Nonetheless, Google now claims Plaintiffs’ motion is
untimely and that Plaintiffs seek an improper advisory opinion. Both suggestions are wrong.
First, Plaintiffs sought the documents at issue in this Motion via their first two Requests
for Production (“RFPs”), which were issued on the opening day of discovery in this case. When
protected Project Banksy,” Op. at 9-10 n.9. This confusion further illustrates the arbitrariness of
the line drawn by Google in its privilege claims for the code-name projects. Page 14 PageID#
Plaintiffs first pressed Google on its response to those RFPs, Google contended any privilege
dispute was not yet ripe, and would not ripen until Google produced revised privilege logs much
later in discovery. Yet, in an apparent reversal, Google now claims Plaintiffs should have filed
their motion even earlier in discovery. The truth is that Plaintiffs filed the instant motion in a
timely manner, soon after an impasse was confirmed by the parties, and any delay in filing the
motion was attributable solely to ongoing conferences with Google to attempt to resolve these
issues.
Second, Google goes a step further and suggests that the United States should have
invoked 15 U.S.C. § 1314 to initiate a pre-complaint litigation for the sole purpose of raising
these privilege concerns with a separate court back then. However, nothing in the statute Google
cites requires the United States to file a miscellaneous action seeking to enforce its Civil
Investigative Demand prior to the filing of a substantive suit. Indeed, State Plaintiffs, who
brought this motion with the United States, could not have done so under the federal statute.
Google cites no authority for the proposition that the United States or State Plaintiffs abandoned
their privilege challenge by failing to file a pre-suit subpoena enforcement action. It is clearly
within the United States’ discretion to determine whether such an approach is necessary in the
exercise of its investigative authority.
Third, Google’s suggestion that Plaintiffs seek an advisory opinion is false. This motion
seeks to compel production of specifically-identified documents withheld in whole or in part by
Google on the basis of privilege. Such relief is discrete and based on a ripe dispute between the
parties; it also is fully consistent with Judge Castel’s decision in the MDL to rule on challenges
to a discrete sample of documents withheld by Google on the basis of privilege. In re Google
Digital Advert. Antitrust Litig., 2023 WL 196146, at *1 (S.D.N.Y. Jan. 17, 2023). Nothing about Page 15 PageID#
Plaintiffs’ proposed order compelling production of a discrete set of documents would amount to
an improper advisory opinion. While Plaintiffs hope that the Court’s analyses of these particular
documents will lead to more fruitful future discussions among the parties on privilege issues,
Plaintiffs do not seek an advisory ruling on any other privilege claim asserted by Google.
Plaintiffs merely previewed in their opening brief (Mot. to Compel at 1 n.2), that, while
hopefully unnecessary, Plaintiffs may ultimately need to return to the Court for additional
assistance should an impasse on similar privilege claims arise later in discovery.
V.
Google Has Waived Privilege over Document 1 (GOOG-DOJ-12766025).
In its Opposition, Google argues it did not waive any applicable privilege with respect to
Document 1 despite failing to object to the use of that document at a deposition nearly two years
ago. Typically, privilege is waived where a party allows a privileged document to be marked as
an exhibit at a deposition and permits its witness to answer questions about the document. See
Martin v. State Farm Mut. Auto. Ins. Co., 2011 WL 1297819, at *5 (S.D.W. Va. Apr. 1, 2011).
Although that is precisely what happened here, Google contends that it did not have sufficient
opportunity to object to the use of the document before its employee answered questions. The
transcript belies such an assertion.
As is standard practice at depositions, the Google employee witness—and Google’s
counsel—were given time to review the document in full, and the witness confirmed his review
was complete before any question was posed. Ex. 6,
Tr. 196:16-24. Six questions were
asked about the now-clawed-back portion of the four-page email before Google’s counsel
objected. Google counsel’s failure to object in a timely manner to either the introduction of the
exhibit or the associated testimony—both of which referenced by name one of the code-name
projects— amounted to waiver of the privilege on behalf of his client. See Luna Gaming-San
Diego, LLC v. Dorsey & Whitney, LLP, 2010 WL 275083, at *5 (S.D. Cal. Jan. 13, 2010) (“But Page 16 PageID#
under both state and federal law, if a privileged document is used at a deposition, and the
privilege holder fails to object immediately, the privilege is waived.”).
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court review in
camera the documents identified in the Appendix and order Google to produce each document,
with appropriate redactions only if necessary.
Dated: June 8, Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 307-Fax: (202) 616-Email: Julia.Tarver.Wood@usdoj.gov
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA Telephone: (804) 692-Facsimile: (804) 786-Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
Attorneys for the United States
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 257 Filed 06/08/23 Page 1 of 16 PageID# 2462
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR
IN CAMERA INSPECTION AND TO COMPEL PRODUCTION
OF DOCUMENTS WRONGFULLY WITHHELD AS PRIVILEGED
In response to Plaintiffs’ motion to compel, Google withdrew or narrowed its privilege
claims for six of the twenty-one documents (nearly 30%) challenged by Plaintiffs. While
Plaintiffs welcome the production of these documents, Google’s reversal of its prior privilege
determinations underscores the overbreadth of Google’s claims of privilege in the first place. It
also highlights the pervasiveness of the company’s Communicate with Care policy, designed to
shield from discovery important business discussions through improper assertions of privilege.
Google continues to assert privilege claims for nineteen documents within the sample of
documents identified in Plaintiffs’ initial motion, but it has failed to meet its burden to
substantiate those claims. Resting primarily on a conclusory, boilerplate declaration from inhouse counsel and an earlier 30(b)(6) deposition where its corporate representative repeatedly
refused to answer proper questions, Google asks this Court to simply trust its blanket assertions
of privilege, forgoing in camera review. But Google’s arguments and factual support for its
claim fall short of what is required to substantiate claims of privilege over broad swaths of
documents created by non-lawyers, that serve obvious business purposes, and which appear to be
merely new iterations of prior ordinary course business analyses. At a minimum, Google’s
1
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 257 Filed 06/08/23 Page 2 of 16 PageID# 2463
response does not explain why in camera review would not be helpful “for the Court correctly to
apply the Fourth Circuit’s attorney-client privilege law, including the limitations that are inherent
in that body of law,” F.T.C. v. Reckitt Benckiser Pharm., Inc., 2015 WL 1062062 at *8 (E.D. Va.
Mar. 10, 2015), such that this Court should decline to exercise its “broad discretion to determine
whether a privilege is properly asserted” via in camera inspection. Fed. Election Comm’n v.
Christian Coal., 178 F.R.D. 456, 461 (E.D. Va. 1998). Accordingly, the Court should review in
camera the documents Google continues to withhold1 and order the production of any portion of
those documents for which Google has failed to support its claims of privilege.
ARGUMENT
I.
Google’s Communicate with Care Policy Has Been Used To Shield Documents from
Discovery and Its Privilege Assertions Have Been Pervasively Overbroad and
Internally Inconsistent.
In its Opposition, Google claims Plaintiffs’ challenges to its claims of attorney-client
privilege are based on mere “speculation” that do not provide “a factual basis sufficient to
support in camera inspection.” Op. at 2-3. The challenged documents for which Google has
abandoned or narrowed its claims of privilege suggest otherwise.
First, Google claims that it has “in good faith opted to drop its claim of privilege” over
Document 4 (GOOG-DOJ-AT-01019463), which Plaintiffs had highlighted in their motion as a
likely exemplar of Google’s Communicate with Care policy in action. The unredacted version of
that document, which Google recently produced, confirms that Plaintiffs’ concerns were not
mere “speculation” and are, instead, fully warranted.2
1
Attached as Appendix A is a revised version of the appendix attached to Plaintiffs’ motion to
compel that reflects the recent production by Google of certain challenged documents.
2
Attached as Ex. 1 is the redacted version of GOOG-DOJ-AT-01019463 as of the time the
Motion to Compel was filed. Attached as Ex. 2 is the unredacted version of GOOG-DOJ-AT01019463, which Google produced to Plaintiffs on the evening of June 2, 2023.
2
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assertions.3 Document 3 is a
. According to
Google’s privilege log, the document was redacted because it reflected “
.” However, like Document 4, the previously-redacted
portions of Document 3 contain no legal advice at all. Instead, the redacted portions contain
commentary from
explaining, inter alia, that
the
. Notably,
is not listed as a
stakeholder for either section where redactions were lifted; he only appeared as a stakeholder in
the separate “
” section of the document, which remains redacted.
Third, Google’s inconsistent application of its privilege claims is apparent in its decision
not to remove any redactions from Plaintiffs’ other exemplar documents. This includes several
exemplars that share similar characteristics to the six documents for which Google removed
some or all of its prior redactions. For example, Google did not remove any redactions from
Documents 16 (GOOG-DOJ-AT-00205841) and 19 (GOOG-DOJ-AT-01007207), claiming both
are protected by attorney-client privilege and work product protection. Both, however, are email
threads involving only Google business people discussing strategic business issues without any
apparent attorney presence or involvement.
3
Attached as Ex. 3 is the redacted version of GOOG-DOJ-AT-00029680 as of the time the
Motion to Compel was filed. Attached as Ex. 4 is the less-redacted version of GOOG-DOJ-AT00029680, which Google produced to Plaintiffs on the evening of June 2, 2023.
4
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Google’s belated, selective removal of redactions from several of Plaintiffs’ exemplar
documents are indicative of Google’s inconsistent and overbroad approach to privilege;
collectively, they demonstrated ample factual basis to support in camera inspection of the other
exemplar documents identified in Plaintiffs’ motion. Further, in light of Google’s withdrawn
privilege claims for two documents initially challenged by Plaintiffs, which reduced the sample
of documents for the Court to review in camera, Plaintiffs respectfully request that the Court also
review in camera the two following additional documents that are similar to the withdrawn
documents, but where Google persists in asserting privilege. GOOG-DOJ-12949396; GOOGDOJ-15088294.4
II.
The Court Has Broad Discretion to Review Documents In Camera.
Google argues that its privilege claims are exempt from in camera review because it has
submitted a single declaration parroting the general legal standard for work product protection
and provided limited testimony in response to certain questions posed to its corporate
representative at a 30(b)(6) deposition. Op. at 7-8. However, the cases cited by Google
demonstrate that courts regularly exercise their discretion to conduct in camera inspection based
on a more minimal showing than has made been here, and even where privilege claims appear on
their face to be strong. See Op. at 7. Courts take this conservative approach to account for the
4
Google’s strategy of narrowing its privilege claims only when responding to a motion to
compel is not new. See Dkt. No. 335 at 3, United States v. Google, No. 20-cv-03010 (D.D.C.
Apr. 7, 2022) (describing Google’s production of approximately 9,000 erroneously withheld
emails after the United States sought sanctions). Although Google’s recent production mooted
Plaintiffs’ challenge to two of the original twenty-one documents for which Plaintiffs sought in
camera inspection, Google’s belated production of previously-withheld documents only once its
privilege determinations were brought to the Court’s attention does not give Plaintiffs much
comfort about the remaining documents Google is withholding from production, especially
where Google has redacted apparent business discussions despite the lack of any indication that a
lawyer has provided legal advice.
5
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inherent difficulty any challenging party—without access to the documents at issue—has in
presenting detailed evidence to challenge the withholding party’s privilege claims. This is why
the showing necessary to seek in camera review is minimal. Indeed, Plaintiffs need only provide
“a factual basis sufficient to support a reasonable, good faith belief that in camera inspection
may reveal evidence that information in the materials is not privileged.” In re Zetia (Ezetimibe)
Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16, 2019); see also NLRB v. Interbake
Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011) (directing district court to conduct in camera
review of email chain involving non-lawyers where defendant’s privilege log made a prima facie
showing the privilege applied but defendant had “not presented a document-by-document
privilege analysis”); Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 985
(4th Cir. 1992) (remanding for in camera review where district court relied solely upon privilege
log to uphold claims); cf. United States v. Zolin, 491 U.S. 554, 572 (1989) (explaining in the
crime-fraud context that “a lesser evidentiary showing is needed to trigger in camera review than
is required ultimately to overcome the privilege” and the “threshold we set, in other words, need
not be a stringent one”). Plaintiffs easily meet the required threshold to justify in camera review
of the exemplar documents here.
For example, in Zetia—a case cited repeatedly by Google in its Opposition—the court
conducted in camera review of a set of documents analyzing a potential patent litigation
settlement notwithstanding defendants’ submission of multiple declarations from both business
and legal employees asserting that the materials were created in anticipation of litigation, at the
direction of counsel, served solely a legal purpose, and would not have been created otherwise.
2019 WL 6122012, at *1-2. There, “notwithstanding the strength of [the defendant’s] privilege
claims, the parties’ disagreement over the claw back documents [was] sufficiently narrow that
6
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the court agreed to in camera inspection.” Id. at *5. For the reasons identified below, Google has
put forward far less support for its privilege claims than the defendant in Zetia, and therefore in
camera review of the limited set of documents at issue is appropriate.
III.
Google’s Work Product Protection Claims Fail Because the Prospect of Litigation
Alone Is Insufficient to Protect Otherwise Inevitable Business Discussions.
In its Opposition, Google argues that because Google has been under investigation by
multiple antitrust enforcers since early 2019, and because the code-named projects involve
potential changes to Google’s business practices that might mitigate or alleviate regulators’
concerns, all documents discussing any aspect of the business practice reviews should be
withheld as privileged. The law in this Circuit does not sweep so broadly. See ePlus Inc. v.
Lawson Software, Inc., 280 F.R.D. 247, 251 (E.D. Va. 2012) (“Thus, the application of the
privilege laws serves an important purpose in our legal system, but that application can also
‘remove otherwise pertinent information from the fact finder, thereby impeding the full and free
discovery of the truth.’ Because of this adverse result, in the Fourth Circuit, work product and
attorney-client privilege are construed ‘quite narrowly.’” (citations omitted)).
Google’s brief and supporting declaration highlight the involvement of counsel in the
projects, but the mere involvement of counsel does not as a bright-line rule confer privilege over
the projects. Google suggests that neither the extensive involvement of non-lawyers in the codenamed projects nor the use of pre-existing business analyses in the projects vitiates its broad
privilege claims. While neither factor is dispositive, courts regularly consider the individuals
involved in a project and the business purposes for which the related analyses were used when
considering claims of privilege.5 See, e.g., In re Dominion Dental Servs. USA, Inc. Data Breach
5
Google argues that its work product claim “hinges on why a document was created” and “not
on whether it has a ‘nexus’ to business decisions.” Op. at 13. The cases Google cites for this
7
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Litig., 429 F. Supp. 3d 190, 193-94 (E.D. Va. 2019) (finding that project completed “under the
direction of Counsel” nonetheless was not privileged where analyses were “used for a range of
non-litigation purposes”). For example, in In re Capital One Consumer Data Sec. Breach Litig.,
2020 WL 2731238, at *4, 7 (E.D. Va. May 26, 2020), this Court rejected defendant’s claim of
privilege over work performed by a cybersecurity vendor “at the direction of counsel” in the face
of “substantial claims” following a data breach. In doing so, the Court concluded that the
analyses “would have been prepared in substantially similar form but for the prospect of that
litigation,” in part because similar analyses had been performed in the past and used by the
defendant for business purposes. Id. at *4-5 (observing that the report was used by defendant for
“various business and regulatory purposes”). The court properly placed the burden on the
defendant to “show[] how it would have investigated the incident differently if there was no
potential for litigation.” Id.
To evaluate whether a document prepared by business people is substantially similar to
those the business would have prepared in the ordinary course, courts typically examine the
substance of the documents in camera. This allows the court to order production of a redacted
copy, “[i]f opinions and theories about the litigation are only part of a document otherwise
discoverable.” Nat’l Union, 967 F.2d at 985; see also Asghari–Kamrani v. United Servs. Auto.
Ass’n, 2017 WL 553402, at *6 (E.D. Va. Jan. 20, 2017). In order to ensure that a party’s
assertion of work product is not overbroad, courts typically “must determine, from an
proposition make clear, however, that even if “[t]here is little doubt under the evidence that [a
party] had the prospect of litigation in mind when it directed the preparation of the [document],”
work product protection “really turns on whether it would have been prepared irrespective of the
expected litigation” in “substantially similar form.” United States v. Adlman, 134 F.3d 1194,
1203-04 (2d Cir. 1998). Such a determination necessarily requires an assessment of the nexus
between the document at issue and ordinary course business analyses.
8
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examination of the documents or their circumstances, whether they were prepared in anticipation
of litigation or for trial.” Asghari–Kamrani, 2017 WL 553402, at *6.
Conclusory affidavits and declarations merely reciting the legal standard are insufficient.
See Dominion Dental, 429 F. Supp. 3d at 194 (declining to credit defendants’ affidavit that
“makes the bare assertion that ‘without the threat of litigation . . . the Mandiant Report would not
have been prepared in a substantially similar form and may not have been necessary at all’”).
Courts require the party asserting work product protection to make a “specific demonstration of
facts supporting the requested protection, preferably through affidavits from knowledgeable
persons.” E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 WL 1489966, at *3 (E.D. Va.
Apr 13, 2010) (internal quotation marks omitted). Google “cannot simply rely on conclusory
statements” but rather must provide “specific factual support” for its work product claim.6
Hempel v. Cydan Dev., Inc., 2020 WL 4933634, at *5-6 (D. Md. Aug. 24, 2020).
In support of its opposition, Google relies upon a single declaration from an in-house
counsel7 to substantiate its work product assertions over the code-named business projects. See
Mot. to Compel at 18-22 (describing the business nature of each project). The declaration is light
on facts and falls far short of the level of detail required to support a work product claim here,
where the projects involve potential business changes to Google products, pricing and strategy.
By simply parroting the legal standard for work product in the declaration and asserting the
6
For example, in Adair v. EQT Prod. Co., 294 F.R.D. 1, 6 (W.D. Va. 2013), a case relied upon
by Google, the declarant provided a detailed explanation of their role with respect to the
challenged documents and specific information on the nature, origin, and purpose of the
privileged documents. See Dkt. No. 432-1, Adair v. EQT Prod. Co., No. 10-cv-00037 (W.D. Va.
2013).
7
The declaration is submitted by the same counsel copied into the Communicate-With-Care
email chain in Document 4 (at 3) for which Google has withdrawn its claim of privilege.
9
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he simply asserts they “reveal the substance,” or were “created as part,” of the
projects. Id. ¶ 11-13. But that is not the standard for work product protection.
The declarant provides no additional information about the purpose, use, or nature of
any specific document, which would allow the Court to assess independently whether
the document—or portions thereof—would have been prepared in substantially the
same form but for reasonably-anticipated litigation. Indeed, the declarant does not
describe the documents in any detail whatsoever.
At best, the declaration confirms that the documents were created at a time when Google
was subject to multiple governmental investigations, some of which could potentially lead to
litigation. But the Fourth Circuit has warned that the mere possibility of litigation is insufficient
to cloak ongoing business analyses and decision-making in a blanket claim of privilege. As the
Fourth Circuit has explained, “because litigation is an ever-present possibility in American life, it
is more often the case than not that events are documented with the general possibility of
litigation in mind . . . [y]et, ‘[t]he mere fact that litigation does eventually ensue does not, by
itself, cloak materials’ with work product immunity.” Nat’l Union, 967 F.2d at 984. The rule
Google seeks to advance ignores these concerns. It would provide greater work product
protection over the business documents of large companies that frequently face the threat of
litigation while affording less protection to smaller companies that draw fewer suits. This is why
courts look beyond the mere prospect of litigation at the time a document is created and instead
consider the document’s nature, content, and purpose.
The omissions from Google’s declaration are not oversights. Rather, they are consistent
with the positions taken by Google’s counsel during the pre-complaint 30(b)(6) deposition on the
code-name projects. During that deposition, Google restricted its witness from answering basic
11
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questions concerning the nature, purpose, or business use of the challenged documents. In fact,
Google’s corporate representative refused to answer numerous questions that sought basic
information needed to assess Google’s assertion that no portion of any of the project documents
would have been created in substantially the same form but for litigation.
For example, Google’s corporate designee refused to identify what data sources Google’s
non-lawyer business employees drew upon in their work on the projects or whether the projects
incorporated any pre-existing business analyses, which might suggest the code-name projects
were continuations of ordinary course business analysis. See, e.g., Ex. 5, 30(b)(6) Tr. at 119:314; Tr. 158:14-159:10.8 Likewise, Google’s designee refused to say whether any financial
forecasts were created as part of the code-name projects, including whether those forecasts might
be used in Google’s ordinary course of business operations.9 Ex. 5, 30(b)(6) Tr. 136:11-140:1.
Google’s representative also refused to answer questions about whether there were any successor
projects, notwithstanding the fact that Google has taken the position that some predecessor or
successor projects are not privileged, such as the predecessor project for
that bore
the same name.10 Ex. 5, 30(b)(6) Tr. 143:18-144:2; Op. at 16 n.16. As Google’s counsel
8
In its Opposition, Google argues that “work-product materials do not lose their work-product
status because they incorporate ordinary-course analyses or content,” Op. at 12, but whether the
materials substantially incorporate or rely upon ordinary-course business analyses is relevant to
whether the document would have been created in substantially the same form but for litigation
as a continuation of the prior business workstream. Likewise, any “stand-alone forecasts or
financial data” contained in the documents “would not be subject to a claim of privilege” and
must be separately produced if responsive to Plaintiffs’ discovery requests. See Zetia, 2019 WL
6122012, at *5.
9
Notably, during the course of the deposition, Google’s non-lawyer corporate representative
often declined to answer on the basis of privilege even before counsel objected. See, e.g., Ex. 5,
30(b)(6) Tr. 136:11-13.
10
In response to Plaintiffs’ motion, Google removed its redactions in Documents 15 (GOOGDOJ-AT-00660900) and 18 (GOOG-DOJ-AT-00660895) because it had incorrectly contended
the document “related to the non-privileged Banksy” project instead of the “work-product12
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explained during that deposition, “
,”
while taking the position the United States was not allowed to ask about any “
” of the projects. Ex. 5, 30(b)(6) Tr. 136:11-140:1. Without such information, and absent
in camera review, it is difficult to assess Google’s blanket assertion that none of the documents
would have been created in a similar form but for litigation.
To be clear, Plaintiffs do not seek any portions of the documents that discuss litigation
strategy or counsel’s mental impressions of Plaintiffs’ potential or actual claims. Plaintiffs are
entitled, however, to non-privileged business analyses by Google’s business employees relating
to business operations and decisions that are relevant to Plaintiffs’ claims and/or Google’s
defenses. Simply because Google is subject to investigation or litigation, and has been for years,
it should not be allowed to shield this non-privileged business information on relevant topics
from discovery.
IV.
Plaintiffs’ Motion to Compel Is Timely and Appropriate.
Google cannot deny that the United States promptly raised its concerns with Google’s
privilege claims during the course of the pre-complaint investigation or that the parties had
extensive communications on these issues during the pre-complaint investigation. (Indeed, as a
result of those extensive discussions, Google produced over 50,000 documents it had previously
withheld on purported privilege grounds.) Nonetheless, Google now claims Plaintiffs’ motion is
untimely and that Plaintiffs seek an improper advisory opinion. Both suggestions are wrong.
First, Plaintiffs sought the documents at issue in this Motion via their first two Requests
for Production (“RFPs”), which were issued on the opening day of discovery in this case. When
protected Project Banksy,” Op. at 9-10 n.9. This confusion further illustrates the arbitrariness of
the line drawn by Google in its privilege claims for the code-name projects.
13
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Plaintiffs first pressed Google on its response to those RFPs, Google contended any privilege
dispute was not yet ripe, and would not ripen until Google produced revised privilege logs much
later in discovery. Yet, in an apparent reversal, Google now claims Plaintiffs should have filed
their motion even earlier in discovery. The truth is that Plaintiffs filed the instant motion in a
timely manner, soon after an impasse was confirmed by the parties, and any delay in filing the
motion was attributable solely to ongoing conferences with Google to attempt to resolve these
issues.
Second, Google goes a step further and suggests that the United States should have
invoked 15 U.S.C. § 1314 to initiate a pre-complaint litigation for the sole purpose of raising
these privilege concerns with a separate court back then. However, nothing in the statute Google
cites requires the United States to file a miscellaneous action seeking to enforce its Civil
Investigative Demand prior to the filing of a substantive suit. Indeed, State Plaintiffs, who
brought this motion with the United States, could not have done so under the federal statute.
Google cites no authority for the proposition that the United States or State Plaintiffs abandoned
their privilege challenge by failing to file a pre-suit subpoena enforcement action. It is clearly
within the United States’ discretion to determine whether such an approach is necessary in the
exercise of its investigative authority.
Third, Google’s suggestion that Plaintiffs seek an advisory opinion is false. This motion
seeks to compel production of specifically-identified documents withheld in whole or in part by
Google on the basis of privilege. Such relief is discrete and based on a ripe dispute between the
parties; it also is fully consistent with Judge Castel’s decision in the MDL to rule on challenges
to a discrete sample of documents withheld by Google on the basis of privilege. In re Google
Digital Advert. Antitrust Litig., 2023 WL 196146, at *1 (S.D.N.Y. Jan. 17, 2023). Nothing about
14
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Plaintiffs’ proposed order compelling production of a discrete set of documents would amount to
an improper advisory opinion. While Plaintiffs hope that the Court’s analyses of these particular
documents will lead to more fruitful future discussions among the parties on privilege issues,
Plaintiffs do not seek an advisory ruling on any other privilege claim asserted by Google.
Plaintiffs merely previewed in their opening brief (Mot. to Compel at 1 n.2), that, while
hopefully unnecessary, Plaintiffs may ultimately need to return to the Court for additional
assistance should an impasse on similar privilege claims arise later in discovery.
V.
Google Has Waived Privilege over Document 1 (GOOG-DOJ-12766025).
In its Opposition, Google argues it did not waive any applicable privilege with respect to
Document 1 despite failing to object to the use of that document at a deposition nearly two years
ago. Typically, privilege is waived where a party allows a privileged document to be marked as
an exhibit at a deposition and permits its witness to answer questions about the document. See
Martin v. State Farm Mut. Auto. Ins. Co., 2011 WL 1297819, at *5 (S.D.W. Va. Apr. 1, 2011).
Although that is precisely what happened here, Google contends that it did not have sufficient
opportunity to object to the use of the document before its employee answered questions. The
transcript belies such an assertion.
As is standard practice at depositions, the Google employee witness—and Google’s
counsel—were given time to review the document in full, and the witness confirmed his review
was complete before any question was posed. Ex. 6,
Tr. 196:16-24. Six questions were
asked about the now-clawed-back portion of the four-page email before Google’s counsel
objected. Google counsel’s failure to object in a timely manner to either the introduction of the
exhibit or the associated testimony—both of which referenced by name one of the code-name
projects— amounted to waiver of the privilege on behalf of his client. See Luna Gaming-San
Diego, LLC v. Dorsey & Whitney, LLP, 2010 WL 275083, at *5 (S.D. Cal. Jan. 13, 2010) (“But
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under both state and federal law, if a privileged document is used at a deposition, and the
privilege holder fails to object immediately, the privilege is waived.”).
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court review in
camera the documents identified in the Appendix and order Google to produce each document,
with appropriate redactions only if necessary.
Dated: June 8, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-0077
Fax: (202) 616-8544
Email: Julia.Tarver.Wood@usdoj.gov
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA 23219
Telephone: (804) 692-0485
Facsimile: (804) 786-0122
Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
Attorneys for the United States
16
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