TRANSCRIPT of hearing held on 6-15-23, 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 7/17/2023. Redacted Transcript Deadline set for 8/16/2023. Release of Transcript Restriction set for 9/14/2023.(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-Thursday, June 15, 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 2:00 p.m.
A P P E A R A N C E S:
FOR THE PLAINTIFFS:
GERARD MENE, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia (703) 299-
JULIA TARVER WOOD, ESQUIRE
DAVID TESLICKO, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. (202) 894-
JONATHAN HARRISON, 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
JULIE ELMER, ESQUIRE
CLAIRE LEONARD, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. (202) 777-
SCOTT EISMAN, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
601 Lexington Avenue
New York, New York (212) 277-
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:
al. versus Google LLC, Civil Action Number 22-cv-108.
United States of America, et
MR. MENE:
Good morning [sic], Your Honor.
Gerard Mene with the U.S. Attorney's Office.
MS. WOOD:
Good afternoon, Your Honor.
Julia Wood.
from the Department of Justice will be arguing today.
Good to see you.
MR. EWALT:
My colleague, David Teslicko,
Good afternoon, Your Honor.
Andrew Ewalt from Freshfields on behalf of Google.
joined by my colleagues, Julie Elmer, Scott Eisman,
Claire Leonard and Craig Reilly.
on behalf of Google this afternoon.
Ms. Elmer will be arguing
THE COURT:
Just a couple of preliminary matters before we get
Okay.
I'm
Thank you.
into the argument.
First of all, thank you all for working together
to get the other motion to compel resolved and custodial
issues and the other things.
that and working together to be able to do that.
I appreciate you all doing
I also want to just highlight that I am concerned
a little bit about the motions to seal that have been filed
for all three sets of the pleadings relating to this current
motion.
As you know, the documents will remain under seal
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 4 PageID#
until I issue an order dealing with those things, but there
may be some further briefing that may need to be done, or I
may just decide it on the papers.
that everything that everybody is asking to be sealed will
remain under seal.
But I think it's unlikely
And I understand that there are two standards that
are put into place, and we're dealing with the lesser
standard on these discovery-related matters.
probably know, Judge Brinkema is one of the judges in our
But as you
court that is very sensitive about what gets to remain under
seal, and so I am tasked with the order to make sure that we
don't over seal information.
So I want to highlight that.
And I also want to remind you -- and I think I had
indicated to the parties earlier when we were talking about
overall scheduling -- that neither Judge Brinkema or I will
be here on the 30th of June.
conference is going on that Friday, so there will be no
motions heard in this case on June 30th.
Okay.
The Fourth Circuit judicial
I have read all the papers, all the
exhibits, including the 250-page transcript of the 30(b)(6)
deposition.
some factual questions that I really want to get sort of
sorted out before I hear the legal argument.
ask counsel for the government to come forward first.
to the extent that you can answer my factual questions,
I understand most of the issues.
I do have
And so I'll
And
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 5 PageID#
that's good; if not, I may ask Ms. Elmer to pitch in and
help out.
So, as I understand it -- and I guess before we
go -- nothing else has been worked out other than the two
documents that have been produced and some lesser redactions
on four documents; is that right?
MR. TESLICKO:
That's correct, Your Honor.
Two
documents were produced without redactions; four documents
were produced with more limited redactions.
THE COURT:
All right.
I didn't want to get all
wound up and find out I didn't need to do that like last
time period, so thank you for that.
There seems to be some disconnect between your
briefing and their briefing on the number of documents that
are related to the Remedy Projects.
that as the term, because I think that's the term that the
parties have both used to some extent.
chart, you have 14, and in their briefing and declaration
and all that, they have it as 17.
Documents 2, 10 and 16.
You know, I'll just use
At least in your
The difference is
Do you agree that 2, 10 and 16 were related to the
Remedy Projects, or do you not.
MR. TESLICKO:
So, Your Honor, I think the simple
answer is we don't know because those documents were
withheld in full.
When we identified in the appendix to our
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motion which documents were based on code-named projects, we
did that based on a letter we had previously received from
Google during the course of the pre-complaint investigation.
So for the documents you identified where we
previously didn't identify them as code-named projects, it's
either because we -- it's because they were not identified
in that letter from Google, which was the basis for our
chart.
THE COURT:
Well, if you look at 16 -- I can see
that maybe for 2 and 10.
in anticipation of litigation in response to active
government investigations."
But 16 says:
"Project undertaken
Why did you not cross the code-named project when
the privilege log description says that directly?
MR. TESLICKO:
very specific projects.
description whether the document related specifically to a
code-named project or was more generally a communication in
anticipation of litigation.
THE COURT:
MR. TESLICKO:
Because the code-named projects are
It was unclear from this
Okay.
I don't think we're factually
disagreeing with Google's assertion that it relates to --
THE COURT:
Well, you've seen the Lazarus
declaration where he outlines that and indicates what those
were.
Okay.
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And just to make sure I am clear -- it wasn't
necessarily in the briefing and I just want to make sure --
because I think it has some significance.
Remedy Project documents were produced with redactions and
others were withheld completely; is that accurate?
MR. TESLICKO:
Some of the
So I -- Your Honor, I would clarify
that to say that some documents that were produced with
redactions involved Remedy Projects.
portions of those documents do not discuss or disclose the
The unredacted
Remedy Projects.
To our knowledge, any document describing the
substance of the Remedy Project was fully withheld.
the document was solely about our project, it was completely
withheld.
code-named project but a portion did not, Google redacted
everything related to the code-named project.
So if
If a portion of the document related to a
THE COURT:
Okay.
So just so I have a better
sense going through the list, 1 was redacted, 2 was withheld
completely, is that right?
MR. TESLICKO:
THE COURT:
Correct.
And I'm just going through the ones
that I understand were related to the Remedy Projects.
Five was withheld completely, 6, 8, 9, 10 and
were withheld completely.
12 withheld completely, 13 was
redacted, 14 was withheld completely, 15 was redacted, Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 8 PageID#
was redacted, 18 and 19 were redacted, and 20 was withheld
in total.
MR. TESLICKO:
THE COURT:
That's correct, Your Honor.
Okay.
Okay.
All right.
I think that
probably takes care of my just overall factual questions
about what I wanted to make sure we were -- I was dealing
with when we talk about the various issues.
And I will say that there -- the real issue, as I
understand it that you're presenting to me, is should I look
at these documents in camera.
question as to whether you've made the adequate factual
showing that at least some of the information contained in
the documents may be subject to disclosure is what you say
that you need to do on page 11 of your memo.
And I guess there is a
I think it's going to be significant for you to
discuss that in two parts.
the Remedy Projects; and the other is the factual showing
for the, arguably two, maybe more, documents that aren't
Remedy Projects that are still in dispute, which I think
would be 3 and 7.
One is the factual showing for
So I'm seeing them through different lenses, to be
honest with you, and so I want to make sure I understand
what your argument is as to both of them and not putting
them all together.
Okay.
So let me hear what you've got to say.
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MR. TESLICKO:
After many months of conferring with Google on its
Sure.
privilege assertions, plaintiffs --
THE COURT:
MR. TESLICKO:
THE COURT:
MR. TESLICKO:
THE COURT:
2021, or I think that's right.
Thank you, Your Honor.
Years.
I mean --
Yes.
-- you knew about this in 2021.
That's correct.
Google sent you a letter in August of
August of 2021, they said we
think these are privileged materials.
MR. TESLICKO:
That's correct.
We met and conferred extensively since that time
to try to narrow a variety of privilege disputes.
acknowledged, they did produce tens of thousands of
documents as part of that meet-and-confer process, but we
still have some outstanding disputes, especially related to
the project documents.
motion to compel, seeking an in-camera inspection of
documents that we created as a sample of certain categories
of documents we had discussed with Google.
supposed to be somewhat representative, not statistically
significant, but a general sample of the main categories of
documents that Google continues to withhold, either for
attorney/client privilege or for attorney work product.
As Google
And, as a result, we filed a present
Those are
And we picked those categories because they
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-164Page 10 PageID#
represent both the greatest concerns to the government in
terms of the privilege claims that Google's asserted, and
also we believe they're the most relevant, or some of the
most relevant documents, to the main issues in this case.
They involved -- they appear to involve key business
decisions, business strategies that are at the heart of the
government's complaint.
THE COURT:
And --
Help me understand the factual basis
for what you just said.
You took a lengthy deposition of a
30(b)(6) deponent who testified about, in broad terms, these
five projects, and, as I understand it, other than the
Banksy one, nothing ever came of it.
that's what he said.
have any factual information that no decisions were made
based on those projects?
Is that -- I mean,
Is that different than what -- do you
MR. TESLICKO:
We do not have any factual
information that decisions were made based on those
projects.
as -- I think this is -- the names of the projects are not
being withheld here.
THE COURT:
I would point out that certain projects, such
I mean, in their opposition -- I mean,
at least the brief in their opposition, as I understand it,
only withheld the names of deponents or names of
individuals.
MR. TESLICKO:
For example, Project SingleClick
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and Project Stonehenge evolved into a non-privileged
code-named project called 1Door that continues to -- at
least as of the time of the deposition was still continuing.
So I don't know if ultimately business decisions
were made that stem from those earlier projects.
answer your question specifically, no, we don't have any
information that a particular business decision was made,
only that they were considered as part of these code-named
projects.
THE COURT:
Okay.
But to
And presentations were made,
and then either the project moved from SingleClick to
Stonehenge or Sunday to Monday or whatever, but -- okay.
All right.
So, you know, you mentioned business decisions,
and that's why I was trying to understand if my
understanding, from based on the deposition transcript and
other information, that there were actual decisions made as
a result of this.
Okay.
Keep going.
MR. TESLICKO:
Sure.
Just to clarify, Your Honor,
I don't think we have any evidence that decisions were made
coming out of that project to take particular actions,
except for Project Banksy and possibly Project 1Door, but
there were, you know, the negative inferences that decisions
were made not to change certain policies that are within the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 12 PageID#
scope of the government's complaint today.
Going back to the purpose of the motion, you know,
as Your Honor already noted, we filed the motion, Google has
withdrawn two of its claims and narrowed four.
thing I would point, though, in addition to narrowing its
claims or abandoning those particular claims, it also
abandoned its attorney/client-privileged claims for 13 of
the remaining documents.
assigning attorney/client privilege over 13 documents.
The other
Those were on the log.
Google is
It's
not advanced those claims in its opposition brief.
And, in
fact, for five of those documents in those logs, they never
asserted work product.
product was in the opposition brief.
So the first time they asserted work
The bulk of the remaining dispute, as Your Honor
has focused on, are the 17 project-related documents where
Google asserts privilege, and so I'll start there.
In our view -- or we understand that Google's
taken the view that because it faced frankly a tsunami of
domestic and international investigations into its business
decisions, that key strategic and commercial discussions and
analysis related to those can be walled out by attorney work
product protection, and we think that that would lead
ultimately to a perverse result.
subject to substantial litigation because of their business
practices are able to potentially wall off key portions of
That large companies
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 13 PageID#
their business.
subject to litigation are not able to avoid the wide breadth
of discovery.
By contrast, smaller companies that are not
And I also want to make clear at the outset
before -- sorry, Your Honor.
THE COURT:
If you look at what the evidence is in
front of me, these projects would not have been initiated if
there hadn't been the investigations that were ongoing.
They were initiated as a result of those.
Are you saying
that's right or not right?
MR. TESLICKO:
I think, respectfully, we would
disagree, Your Honor, at least with some of the projects.
So, for example, Project Sunday, according to the
deposition testimony of the 30(b)(6) deposition testimony,
the corporate representative there did say that litigation
was one of the animating reasons for Project Sunday.
when asked if regulatory matters also led to the creation of
Project Sunday, the deponent testified that many countries
or regions that -- have put into effect some either privacy
or antitrust regulations.
longer here when he was asked what animated Project Sunday.
But
So that list is going to be much
So I think that's one small piece of evidence.
That, in addition to litigation reasons.
There may have
been commercial reasons or regulatory reasons that led to
the initiation of Project Sunday.
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And just to take a step back, Your Honor, the
government is at a disadvantage here, as anyone challenging
privilege claims is.
documents.
reviews those documents in camera and it turns out that, on
their face, they clearly reflect litigation strategy, the
legal opinion work product of counsel, the government's not
seeking that.
have compiled about why these projects were initiated and
what they covered, we think there's a reasonable basis to
believe that portions of those documents involve business
discussions that occurred before the project began, or
business discussions that would have occurred irrespective
of the anticipated litigation.
THE COURT:
MR. TESLICKO:
We haven't seen the underlying
And I want to be clear that if Your Honor
But based on the scraps of evidence that we
Okay.
Go ahead.
So I think the main portion -- or
point where Google and the plaintiffs seem to disagree with
respect to work product is whether it is relevant that the
documents have a nexus to business discussions or business
decisions.
Google, in its opposition at page 13, takes the
view that whether there's a nexus between the documents and
business decisions is irrelevant.
because the projects --
THE COURT:
And they represented that
It's not dispositive, I think is what
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they really are arguing.
MR. TESLICKO:
I would agree with that, Your
Honor.
dispositive one way or the other, but it's certainly
relevant.
One security breach litigation, the Zetia decision as well,
reflect the reality that the analysis is a totality of the
circumstances consideration that looks at who was involved,
the nature of the documents, the purpose of the documents,
And that's the position we're taking.
It's not
And I think Your Honor's decision in the Capital
the use of the documents at issue.
And that's why, Your Honor, the United States and
plaintiff states have requested in-camera review to shed
light on that question, because we tried to take a 30(b)(6)
deposition and got very little information about the nature,
scope, purpose of the documents at issue, or, frankly, who
was involved in creating them.
THE COURT:
Well, you got direct answers from the
person about who was involved telling you, you know, this
person was on the team, this person didn't do anything, this
person was an engineer, this person was that, that we spent
10 hours, 30 hours, 50 hours.
these are major business decisions, that Google spends
20 hours on a project, and you seem to think that's a
significantly major business decision that Google is making
seems to be a little bit of a stretch.
And you make the argument
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But, I mean, you know, not only the letter that
you got before the deposition, but the deposition itself
also clearly outline what lawyers were involved, you know,
who was on the work team and who was on the supervisory team
and those kinds of things.
say you don't have any idea who was doing anything.
MR. TESLICKO:
So I don't understand why you
I think we know, Your Honor, who
was involved generally in the project.
Those people were
identified in the letters and in the depositions.
But even
Google's corporate representative pointed out that there was
a difference between people who worked on the project and
people who were just generally aware.
example, as he testified, covered both.
And the letter, for
When we tried to get more information about who
actually created these documents, what their roles were, we
did not get that information.
information is important as the Court considers the totality
of the circumstances, whether these documents would have
been created for business reasons, for regulatory reasons,
for any other reason besides litigation.
I think that type of
And not to say that litigation wasn't one of the
reasons.
I think we all agree that those were multipurpose
documents.
the evidence available to us that we've identified in
pages 18 to 22 of our motion, our opening brief, suggest
They may have served a litigation purpose, but
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that these were either continuations of the types of
business discussions that occurred beforehand.
Banksy is a great example because Google has
acknowledged there was a Banksy project that considered the
exact same product changes under the exact same code name.
One's privileged; one's not.
the documents where they had redacted the word "Banksy" kind
of illustrates that it's really hard for them to even police
the line between the privileged and non-privileged version
Their deprivileging of one of
of Banksy.
that the non-privileged Banksy court had morphed into the
privileged Banksy.
And their deponent at the 30(b)(6) recognized
And that's not -- and so I think, you know, in
light of the evolution of some of these projects from
privileged to non-privileged, which is SingleClick and
Stonehenge evolving into 1Door, and Banksy evolving from a
non-privileged project to a privileged project, there's some
reasonable basis to believe that these were ongoing business
discussions that would have occurred in substantially
similar form, which is the standard, but for litigation.
I think the other piece of evidence we would point
to is the little information we have about some of these
projects further confirms that there were commercial
purposes driving this analysis.
So, for example, in our opening brief, we identify
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that one of the projects, per Google's own documents, was
initiated because of competitive pressure on margins, and as
part of that project, they consider changes to prices,
policies.
in the ordinary course of business, and they're precisely
the types of changes to policies or existing policies that
are at issue in the government's complaint here.
Those are the kinds of discussions you would see
And, again, we're not saying that litigation had
no bearing on this.
Certainly anticipated litigation was
relevant to what was going on in these business discussions.
But it wasn't the driving force, as the Fourth Circuit has
said the standard is, and we don't think that every portion
of every document would not have been created in
substantially similar form.
What we're asking the Court to do, and what we've
asked Google to do, is to take a narrower view of work
product that's more consistent with the narrow view of
privilege articulated by the Fourth Circuit.
answer is, go through the documents, redact out litigation
strategy, redact out legal opinions, but produce the other
business analysis that's contained in those documents.
THE COURT:
And that
Well, if I was going to accept the
statements under oath by the 30(b)(6) deponent -- and one is
stronger than the others, but I'll take the strongest --
that this project would never have been undertaken if we did
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not anticipate litigation.
So help me understand how
anything done with a project in which the statement is "this
project would have never been undertaken unless there had
been litigation" doesn't fall within the parameters of
something that should be protected.
MR. TESLICKO:
So two answers, Your Honor.
First, I think the question -- the work -- the
question about whether a document is covered by work product
centers on that particular document.
And one of the faults
we identified with the declaration was, it makes those
statements -- it parrots the work product standard at the
project level.
project and kind of skips a step.
is, were these specific documents in whole, because they've
been withheld in full, created because of litigation, and
would the entire document -- no portion of the document have
been created in substantially the similar form but for
litigation.
It says the documents are related to the
So I think --
THE COURT:
Because the real question
If you accept the fact that this would
have never been created unless there was litigation, then
shouldn't everything in the document be protected?
start a project, and I would have never started the project
unless there had been litigation or anticipation of
litigation, then the reason that it was started was
If you
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anticipation of litigation; right?
MR. TESLICKO:
So that is correct, Your Honor.
But I think it depends what gets shoehorned into that
project.
So to play on that hypothetical, you know, but for
litigation, would there have been a project called Project
Sunday?
question about whether once you create Project Sunday, if
you feed into that broader project, commercial discussions,
Maybe not.
Probably not.
But there's a separate
regulatory discussions that were already ongoing or would
have occurred anyway, does that mean that the work product
protection now encompasses all of those discussions that
would have been going on at the company more generally?
On your question specifically about the
declaration, though, I would direct the Court to Zetia where
the declarants there, three declarants, in fact, had similar
statements, if not stronger statements, that none of the
documents would have been created but for litigation in any
form.
review.
documents at issue, but it also went out of its way to
clarify that financial analyses or projections -- standalone
financial analyses or projections contained in those
documents, if they're responsive to discovery requests,
must, nonetheless, be produced separately.
And even then, the Court undertook an in-camera
It did uphold the work product protection for the
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THE COURT:
reveal the intent behind the preparation of the documents?
How would a review of the documents
MR. TESLICKO:
Your Honor, without seeing the
documents, it's hard for me to say.
THE COURT:
I know.
MR. TESLICKO:
I will acknowledge it's possible
that Your Honor could review the documents and it's not
clear.
because of litigation, it all reflects litigation strategy,
It could look like the entire document was created
and then Your Honor would probably uphold the claim.
think there's also a reasonable chance that Your Honor looks
at the documents, and at least portions of the documents
clearly have nothing to do with litigation strategy, legal
opinion of counsel, and are simply considerations of changes
to the business that would have occurred in the ordinary
course.
THE COURT:
All right.
But we
So let me just pose this
hypothetical.
So project -- pick one, I don't care which one --
says, you know, go off, and can we do X?
And if we do X,
what's going to happen to our business?
One technical, one
business.
because they need to know whether we're going to pursue a
remedy of proposing it will do X.
And the lawyers and the client need to know both
You're telling me that making an analysis of
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making a change to X should be produced even though, by
producing that information, you're disclosing what X would
have been?
MR. TESLICKO:
I think, Your Honor, we're arguing
something slightly different.
And not to change your
hypothetical, but maybe to distinguish the two cases, I
think there's a difference between what -- the type of
document Your Honor reviewed in the Capital One security
breach case where there was no dispute there, a report was
commissioned because of litigation, no one disputed that
litigation was anticipated, and the core question is,
looking at those documents, would something like this have
been created in the ordinary course anyway?
settlement proposal, like in Zetia, where the only question
there is should we settle, and is this economically
feasible?
Versus a
I think there's a very large gap in between those
two worlds.
I think we are -- we believe that at least
portions of the documents and portions of these projects are
closer to the Mandiant report in the Capital One security
breach case where, you know, the type of business analysis
was ongoing and would have occurred anyway, but it got
rehoused in light of anticipation of litigation under a
project.
nonetheless, Your Honor ordered it produced.
And there it was directed by counsel, and
And I think -
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 23 PageID#
THE COURT:
Well, that was -- that case is much
different than this case.
MR. TESLICKO:
THE COURT:
Recognizing --
You've got an enormous data breach
that comes -- immediately comes about.
Capital One are under strict regulatory guidelines of what
they need to do.
was there for their business purposes.
contract, they just brought them in to start something
The people at
They already had a company on call that
They used the same
there.
If you go to the second part of my decision in the
Capital One case, you see it's much different.
was a different set of people, different things, you know,
lawyers were involved, lawyers were directing it.
that -- and I said you didn't need to produce that one.
you're picking one, but there's another one out there that
analyzes things in a little bit of a different light.
MR. TESLICKO:
You know, it
I understand, Your Honor.
You know,
So
And that
also involved, you know, an outside vendor.
I think there
is analogy here, though.
does this work all the time in the ordinary course of
business.
who were working on the same product changes, they took the
same team, asked them to continue the work they were already
doing, with an eye towards part of it addressing a
Google took an existing team that
You know, again Banksy, it's the same employees
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 24 PageID#
regulator's concern, but as the 30(b)(6) deponent testified,
they also went out to customers, discussed how the product
change would work with them, commercialized it.
That sounds like a commercial-type discussion,
that, again, relevant to litigation, relevant to settlement,
no dispute there.
example, seems like an ordinary course business discussion
and analysis that would occur at Google.
But at least a portion of that, for
And that may be true of these other projects.
I indicated, some of the few documents we have on these
projects suggest that it was commercial concerns driving
some of these analyses around margin pressure.
Honor might be able to review the documents and see, you
know, this half of a deck talks about the commercial
considerations and why we may or may not, irrespective of
litigation, want to change the way our products work or the
margins we're charging, here's a separate part of the
document that deals with the United States government's
investigation, the State of Texas' investigation, here's how
this proposed changes could be used as a remedy in that
case, or here's our analysis of the strength of those
claims, do we need to do this business project for that
separate purpose.
THE COURT:
As
And Your
But by disclosing the financial
analysis of this change that's under consideration, it would
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 25 PageID#
disclose what the change was under consideration.
that's what it would.
I assume
Again, I haven't seen it.
But, you know, again, if it's -- you know, if the
team is tasked with think about doing X and let me know
what's going to happen, can we do X, and, if so, what's
going to happen, and they spend a week or two or a month,
maybe, in some of these, six weeks for one, you know,
brainstorming, coming up, getting some information together
and saying, yes, we can do X, and if we do X, then the
impact financially is Y.
financially is Y, then you're getting information relating
to the remedy that was under consideration.
what I'm asking?
MR. TESLICKO:
If I give you the impact of X
You understand
I understand what you're asking,
Your Honor.
I think hypothetically a document could look
like that.
consider a range of different prices Google was going to
charge on its products, and based on its market power in
these markets, whether it could or could not charge certain
of those.
prices, a range of product changes, I don't think that
necessarily discloses at all what Google was planning to
propose.
of those remedies.
decisions didn't come out of many or most of those projects.
I think also hypothetically a document could
And if the document is portraying a range of
And, to our knowledge, Google didn't propose most
As Your Honor noted in the 30(b)(6),
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 26 PageID#
So I'm not sure they ever got to a final Remedy proposal.
But we are very interested in the business analysis that was
ongoing separate and apart from any kind of Remedy proposal
that was or wasn't made.
THE COURT:
Help me understand how you think that
would be divorced from the proposal that is being
analyzed -- the proposal that is under consideration if you
look at what the financial impact that would have.
MR. TESLICKO:
So I -- I don't think that --
again, it's hard to talk in abstract without seeing the
documents, of course, but I don't think it's necessarily the
case that a business analysis of we are charging X margin on
these products right now, we think we could charge more, we
could charge less.
of doing so, this is what our competitors would do or force
us to do.
discloses Google's attorneys' views of the strengths or
weaknesses of the government's case, of what the remedy
proposal will be.
These would be the commercial outcomes
I don't think a general analysis necessarily
Now, if there is no separate slide like that and
there's only a slide or a document that says this is the
proposal, here's how much it will cost us, I don't think we
would argue that that should be produced.
Google's broad view of every single reference to these
projects as privileged, we think there might be something
But given
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 27 PageID#
less that Google could produce.
THE COURT:
Well, talk about the other two
documents.
MR. TESLICKO:
So the other two documents, Your
Honor, where Google continues to assert attorney/client
privilege, one is Document 3 where they've removed most of
the redactions.
I think they --
THE COURT:
So there's only one redaction left; is
that right?
MR. TESLICKO:
Yes.
Yes.
And, Your Honor, we wouldn't press that claim.
I
mean, we do think that in light of their decision previously
as part of a clawback -- so this was an intentional decision
to clawback the document and make those redactions, we think
those prior redactions were clearly unsupported, and that
would frankly give Your Honor a sufficient basis to exercise
the discretion to look at the remaining redaction.
we're not pressing that particular document at this time for
in-camera review, because the redactions had been narrowed
to remove those from the finance section, from the top
partner section and to just focus on the legal section,
which seems relatively appropriate.
But
The other document, Your Honor, where Google
continues to assert an attorney/client privilege claim -THE COURT:
Number 7.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 28 PageID#
MR. TESLICKO:
Number 7.
So they did remove some
of those redactions -- one set of redactions in that
document.
The rest of that document describes -- deals with,
again, similar to the code-named projects, changes to
product policies, changes to revenue shares and margins.
was created by a non-lawyer, and I would note that the
privilege basis identified in their log is providing legal
advice -- providing legal advice regarding legal aspects of
product development.
privilege basis they used in Document 21, which they
withdrew the redaction for.
It
That, in fact, is the same type of
Just to us, in light of all the other documents
that they've produced, including the ones they've produced
in response to our motion, the fact that there's no lawyer
actively participating from the face of the document that we
can see, combined with the broader discussion of revenue
shares and changes to buying doors, we think the Court
should engage in an in-camera review of that document to
confirm that that redaction just cannot be narrowed.
THE COURT:
Okay.
What else would you like to say
in your opening salvo here?
MR. TESLICKO:
The only thing I would add, Your
Honor, is because Google deprivileged, in full, two
documents that were withheld for a substantial period of
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 29 PageID#
time on the basis of attorney/client privilege, we did
request in our reply that the Court supplement --
THE COURT:
MR. TESLICKO:
We're not substituting.
Okay.
Understood, Your Honor.
I
just wanted to raise it.
THE COURT:
Okay.
MR. TESLICKO:
THE COURT:
One issue I want you to address initially is what
Thank you, Your Honor.
All right.
We'll hear from you.
impact, if at all, does the protective order that was
negotiated, agreed to and entered by the Court have on the
issue of whether I should be doing in-camera review.
to maybe refresh your recollection as to what the protective
order provides, is that -- and this is in the -- basically
the clawback provision.
Just
It says once they had been asked to claw it back,
what you need to do, must not use or disclose the
information of the claim as resolved, must take reasonable
steps to retrieve the information and may promptly present
the information to the Court under seal for determination of
the claim in camera.
What -- if you read that language, it doesn't seem
like, you know, anything's in there.
You know, subject to
the preexisting law that you have to show certain facts or
circumstances; it sounds like it was negotiated by the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 30 PageID#
parties.
they may promptly present the information to the Court under
seal for determination of the claim in camera.
If you claw this back, they will not use it, but
MS. ELMER:
Your Honor, I admit, I had not focused
on that particular part of the protective order.
I had been
focused on 12(a), which stated that, you know, clawbacks of
documents are an inadvertent production or a production of
material.
of the privilege.
Whether inadvertent or otherwise is not a waiver
And I was looking at that particular
provision particularly in light of some of the arguments
that the DOJ had made in their brief.
But if you'll indulge me, Your Honor --
THE COURT:
Okay.
MS. ELMER:
-- I'll take a look at the other
provision.
Yes.
So my understanding, Your Honor, is that
that provision is if they do not want to sequester the
document or give the document back upon our request that
they claw it back, then they may present it to Your Honor.
I think, so far, we've been able to manage our --
THE COURT:
It's not "or," it says "and."
These
are all things that are required.
One, will promptly
notify -- after being notified, the party must promptly
return, sequester, destroy the information.
Must not use
the information until the claim is resolved.
Must take
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 31 PageID#
reasonable steps to retrieve it, and may promptly present
the information to the Court under seal for determination of
claim in camera.
MS. ELMER:
So the clawbacks that were made that
we're here about today, Your Honor, were clawbacks that were
made two years ago.
THE COURT:
Okay.
All right.
So go ahead and
tell me what you want to tell me based on what their
argument was.
MS. ELMER:
So Google's position in this dispute
is based on factual information, information in the record.
We have a deposition of a corporate witness,
30(b)(6), who sat for a full day of testimony to answer
questions about these Remedy Project documents, and he
answered all of the questions that he could without waiving
the privilege or waiving work product protection for those
documents.
The plaintiffs' position, on the other hand, is
based on speculation.
Project SingleClick and Project Stonehenge evolved into
1Door.
assertion with any evidence.
For example, they alerted that
That is not true.
They have not supported that
To the contrary, Google has produced 3 million --
nearly 3 million documents in the investigation phase alone.
32 Google witnesses provided testimony in the investigation
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 32 PageID#
alone.
We've produced another 330,000 documents last week.
We have another 90,000 coming to them this week.
those documents is ample evidence about Project 1Door
because it wasn't a Remedy Project, and we produced that
information.
And in
Similarly, with Project Banksy, Google was so
careful in how it conducted its privilege review and so
cautious about making sure that we were not overclaiming
privilege or overusing work product, that we agreed with the
DOJ in early 2021 to run Banksy as a search term for our
document production, because we knew there was a portion of
it that was ordinary course, and we produced all of that.
We also knew that in agreeing to run that term, we
were taking on a very heavy burden of a nuanced privilege
review, and a difficult one.
take that on because we needed to be sure that we were not
hiding behind a work product or overclaiming a privilege.
But we knew that we needed to
So I do think that, you know, plaintiffs are
overstepping here, and they're asking you, Your Honor, to
completely disregard the sworn testimony of a corporate
representative.
been said.
projects would not have been undertaken but for these
government investigations.
I really don't know what more could have
I mean, he specifically testified, these
THE COURT:
He only said that as to one of the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 33 PageID#
projects.
Others he said that they were started, but he never said
they would have never been done absent litigation.
That was his strongest testimony as to that.
MS. ELMER:
He was asked, I believe, on page
about Project Sunday.
Was Project Sunday any other purpose,
said no.
business project, it was a project that was undertaken
because of seven, later eight, active government
investigations, all of which he identified in his
It was not a dual-purpose project, it was not a
deposition.
testified that Google anticipated litigation, which we are
now here doing.
And because of those investigations, he further
THE COURT:
The language in the declaration, help
me understand.
and I was a little surprised at the way that it was crafted.
"It would not have occurred in substantially similar form."
That doesn't necessarily mean that it wouldn't have
occurred; it's just the form in which it was done.
what that means?
It can be interpreted in a couple of ways,
Is that
I mean, that's completely different than we only
did -- I mean, that is contrary to the testimony that the
30(b)(6) deponent gave about SingleClick that, you know,
would never have been undertaken if we did not anticipate
litigation.
MS. ELMER:
I think a good way to understand that,
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 34 PageID#
Your Honor, is that there are certain topics that may have
come up in the context of some of these Remedy Projects that
also may have been addressed in ordinary course projects.
In the ordinary course -- any ordinary course
document that addresses those topics, Google has produced or
is in the process of producing.
witness himself testified about some of these topics.
You'll see, Your Honor, toward the back of the deposition,
there is a section where he is testifying in his individual
And, in fact, the 30(b)(6)
capacity about certain subject matters.
some subject matters were discussed in the ordinary course,
and then they were also discussed in the context of some of
these Remedy Projects.
And that's because
The nature of the Remedy Project documents, if
you're thinking about a topic in the context of what would
it take to resolve a government -- an active government
investigation, the concept of what would it take to resolve
it is revealing the mental processes of a lawyer.
very difficult to separate out, you know, a topic or subject
matter that might arise also in an ordinary course situation
from the overall legal thinking of what would it take to
resolve or put to bed this particular investigation.
that's why Google has been very careful to produce any
ordinary course document that deals with a wide range of
topics, any topic, really, relating to its ad tech business,
And it is
And
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 35 PageID#
but it is only refusing to produce these specific Remedy
documents where the topics were considered in the context of
what would it take to resolve this government investigation.
THE COURT:
Why are some of these Remedy Project
documents redacted and others withheld completely?
MS. ELMER:
So the documents that were created for
the Remedy Project documents, those have been withheld in
their entirety.
particular set that aren't Remedy Project documents, per se.
We're calling them that, we label them that for shorthand in
our briefing.
explains, too, I think, they reveal the substantive details
of the Remedy Project documents.
two of the documents at issue are employee evaluations where
the employee, either himself or his boss, is describing what
the employee worked on that year, and the description
reveals the substantive nature of the Remedy Project
document that the employee assisted the legal department
with.
unredacted because the evaluation itself is not a Remedy
Project document.
There are other documents in this
But as the brief explains and the declaration
But, for example, I think
The rest of the employee evaluation is left
The same is true of a couple of email threads
where you have employees who are discussing other topics,
but then they bring up a particular topic, and then they
refer to the Remedy Project document.
Some of these are the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 36 PageID#
Remedy Projects.
need-to-know group for the Remedy Projects, and by revealing
the name of the project, they are revealing the substance of
the project because of the context in which they are raising
it.
Some of these employees were in the
THE COURT:
And, again, I'm reading in between the
lines, to some extent, but, you know, I read the MDL
decision by Judge Castel.
produce those documents in camera.
It looks like Google agreed to
Why didn't you do that
here?
MS. ELMER:
Those I'm trying to remember --
THE COURT:
Four documents at least.
MS. ELMER:
-- what happened in that.
In that particular dispute, I believe that there
was an agreement -- a prior agreement between the parties
where the discovery committee in that case was going to
select at random, by their choosing, four documents to
submit to the Court in camera.
negotiation among the discovery committee and the parties in
that particular case.
So it was sort of a previous
Here, Your Honor, respectfully we believe that in
particular with respect to the Remedy Project documents, the
record is so strong, we have a declaration, we have a
deposition, we don't have any evidence from the plaintiffs
that -- to the contrary; we have assertions from them.
We
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 37 PageID#
also don't have any showing from them that they have a
substantial need for this material.
What facts are contained in these Remedy Project
documents that are not in the millions of pages of documents
that have already been produced to them?
THE COURT:
They don't know, and I don't know.
So, I mean, that's always the problem, you don't know what
you don't have.
can't point to what they're missing because they haven't
seen it isn't going to be a very strong argument; is it?
And so you coming in here and saying they
MS. ELMER:
Well, respectfully, Your Honor, I
think they have seen these.
And I think that's part of the issue here is that they are
trying to reconstruct what they have already seen.
THE COURT:
These are clawback documents.
Well, put in perspective for me -- I
mean, I read the deposition again, and the estimate of the
amount of time that was put into these Remedy Projects, I
was not overly impressed by the number of hours that were
put into any -- Banksy may be different.
that was multitudes more than anything else.
I'm just trying to get a sense as to how many documents
would have been prepared if people only worked on something
for ten hours.
MS. ELMER:
I mean, obviously
But, you know,
And I believe, Your Honor, the -- the
representative testified in specifics on some of these, you
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 38 PageID#
know, that there was one presentation that was created for
Sunday.
might be three slide decks out there.
or two presentations were created for the other projects.
I think that that was maybe given twice, so there
He testified that one
There were not a ton of documents that were
produced because these were projects that were taken up.
They worked on them for a couple of months, and then they
let them die on the vine.
Banksy is different, of course, because it is
something that actually progressed toward a settlement that
the French Competition Authority accepted.
THE COURT:
Okay.
Well, let's talk about the
other document -- or Documents 3 and 7.
MS. ELMER:
So Document Number 3, there's a legal
section there that reflects the legal advice of an attorney,
Matthew King.
document forward.
I don't think the DOJ is pressing that
Document Number 7 is a document that is a slide
deck, and the redactions are mostly from a comment page that
follows a slide deck.
can call out other employees in comments, and so the
comments that are redacted are either a comment that is
discussing a conversation that the employees had with an
attorney, an in-house attorney, and repeating the advice
that that attorney gave, or one of the comments is from an
The way that Google Slides works, you
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 39 PageID#
attorney himself, and then another one is restating the
advice of an attorney.
And then there is a bullet on one slide that is a
redaction of what legal -- its feedback from legal, and that
is what the redaction is.
where two bullets are redacted, and those redactions relate
to the legal risks of undertaking a decision.
And then there is another slide
And the comment slides that are redacted, they're
all identical.
So there's three slides that are fully
redacted, and all of those are those comments, the
back-and-forth comments, and they're all the same.
know why they have, you know, duplicates of the slides in
there.
I don't
That is an example of the type of document that
was very common in this review set.
These very complex
documents where there are call-outs to lawyers, and they
really do require, you know, very careful and sort of
tedious review and redaction.
THE COURT:
Well, and there was one redaction that
was removed that appeared twice; is that right?
was that Document Number 7.
I think it
MS. ELMER:
Document Number 7.
THE COURT:
I know that you've removed some
redactions in Document Number 7, or produced a revised
version of Document Number 7.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 40 PageID#
MS. ELMER:
Oh, that's right.
There is a full
slide, You Honor, I believe it is.
removed.
language is in Google's contracts.
reviewer thought that this is kind of contract language,
attorney language, I need to redact it.
another look at it, as we are always happy to do, and, you
know, no, anyone reading a contract would see this, this is
not legal advice, and we unredacted it.
Yeah.
A full slide was
And what it was is a restatement of what the
I think an overzealous
You know, we took
I think it's Slide
Number 34.
THE COURT:
Okay.
MS. ELMER:
Thank you, Your Honor.
THE COURT:
Thank you.
MR. TESLICKO:
Thank you.
If I could address a couple of your
questions to Google's counsel, Your Honor.
So, first, on the protective order point, we did
raise this at the end of our opening brief.
Our protective
order is modeled on the MDL protective order.
that same exact provision.
that the MDL plaintiffs also have this separate privilege
committee, but the language around submitting disputes over
privilege for in-camera review in the face of a clawback is
the same.
that provision doesn't apply to prior clawbacks, our
understanding is they are taking the position that the
It contains
There is a slight distinction in
And to the extent that Google is arguing somehow
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 41 PageID#
protective order applies to prior clawbacks for waiver
purposes, so certainly it should apply to clawbacks with
respect to in-camera review.
Going to your --
THE COURT:
Well, I mean, my question was really
does that really change the law.
standard is that you have -- you don't just ask for it; you
have to show a reason to do it.
is that if I went down that road, I would be looking at, you
I mean, obviously the
And, you know, my concern
know, 4,000 clawback documents, or 3,900.
MR. TESLICKO:
That's correct, Your Honor.
And I
will -- we will spare you that.
With that said, the fact that there was a clawback
is at least one consideration that the Court's -- that this
Court's considered before in whether there's a basis for
in-camera review.
provision is in the protective order in the clawback
section, not that there's a waiver via the clawback, but
there's some indicia that, you know, a reviewer -- and in
this case, these clawbacks, or for multiple clawbacks,
multiple reviewers thought that the substance was not
privileged.
I suspect that's partially why this
I'll jump to the end where counsel left off, which
is Document 7.
And I have copies of Document 7, because
it's one of the few privileged documents that I could hand
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 42 PageID#
up if Your Honor would like.
continuing redactions exist on slides that discussed
commercial risks at the top, discussed a section called
decisions needed on whether to provide direct access to
advertisers for one of Google's products.
But, just to clarify,
So these are not -- if you look at the slide on
its face, there's not obvious indicia that this is a legal
section or a legal discussion.
they limited the redaction to the legal risks section.
Unlike in Document 3 where
point that out just to clarify that this document,
Document 7, is different than Document 3.
So I
You asked how many project documents were created
in light of the short nature of the documents.
partial list of the documents that Google's provided to us,
which is Exhibit 17 to our opening brief.
or so total across all projects.
We have a
There's about
I will note that, based on the information
provided in the opposition, it seems like that list is
incomplete because Google's asserted privilege over
additional documents not on that list.
sense of volume, Exhibit 17 has that information broken down
by project.
But to give you a
Google's counsel mentioned that we haven't
demonstrated substantial need.
We're not seeking a waiver
of work product, and the substantial need standard applies
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 43 PageID#
to waiver; we are merely seeking documents that are not
subject to the attorney work product protection, and those
would be documents not created in the ordinary course.
we need to do to be eligible to receive that -- or entitled
to receive those documents is merely show relevance.
don't think there's any dispute here that the documents are
at least relevant to the plaintiffs' claims.
THE COURT:
All
And I
It all comes down to whether they're
privileged or not.
MR. TESLICKO:
Correct.
Correct.
I just wanted
to clarify, we're not seeking to overcome the privilege,
therefore we don't need to show separately a substantial
need for the documents; it's merely relevance.
The last point I wanted to come to was the
deposition testimony on Project Sunday.
And I think there's
a bit of semantics going on.
corporate designee was not a lawyer.
that he conflated regulatory actions with litigation and
just regulations.
I made earlier, on 89 at 11 to 12, he says Project Sunday
was begun because of a host of global regulatory actions
across privacy and antitrust.
ask what he meant by some of those things, at page 95,
starting at 8, we asked:
regulatory matters was Project Sunday initiated in response
And, to be honest, the
But it does appear
And just to take you back to a point that
And when we followed up to
What investigations, litigation or
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 44 PageID#
to?
And he said we need to separate that out.
asking for regulatory matters as well.
to say that there are many countries or regions that have
regulatory issues related to antitrust and privacy.
You're
And then he goes on
I don't think Google's contending they anticipated
litigation from any of those other separate regulatory
concerns.
could read the 30(b)(6) testimony to say litigation was one
of the reasons, but regulatory concerns across the globe
were another consideration, especially on privacy issues.
That's not anticipation of litigation; that's a separate
regulatory concern, in addition to the commercial
considerations we think were at stake.
And then lastly --
THE COURT:
And I draw out that point to say that I think you
Well, he does say, you know, what
government investigations form the basis for Project Sunday.
I mean, that was the question that was asked, form the basis
for Project Sunday, and he said basically the same one that
we've talked about, the list which you'll find on page 2 of
the letter.
MR. TESLICKO:
I agree.
What I'm pointing out is that investigations --
government investigations he identified were a basis, but
not the sole basis.
explaining in 95 is that regulatory concerns, across a host
And I think what he's identifying or
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 45 PageID#
of countries that are not contained in that list, also were
bases for initiating Project Sunday.
And the last point I'll make on that is, in
particular with respect to Project Sunday, you've seen in
the briefing, Google's, in our view, walked away from the
representations that the testimony, given by their senior
vice president for many of their commercial lines of
business, where he said he -- Google identified him as an
initiator of the project originally in their letters.
He
said he never instructed an attorney to work on the project;
attorneys never instructed him.
Again, not dispositive, but the fact that the
senior vice president at Google is giving that testimony and
saying that attorneys were not involved in -- actively in
that project, or at least in his initiation of the project,
I think provides some basis to think that this project had
more than one purpose, and those are commercial, regulatory
or anything else other than anticipated litigation.
And I think, at a minimum, that provides a factual
basis for Your Honor to look at the documents, consider
whether it's clear on their face that they were created --
they would not have been created in substantially similar
form, irrespective of litigation, and if they would have,
order the production of those parts that don't reflect legal
opinions, litigation strategy or the like.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 46 PageID#
And if Your Honor doesn't have any other
questions, I --
THE COURT:
Thank you very much.
good on this.
addressed -- and you can go ahead and have a seat.
you.
I think I understand the issues.
And, you know, the briefing was very
I did have a few questions I needed to get
Thank
You know, as I commented earlier, you know, there
are, I think, two separate issues in front of me.
One has
to do with the project documents, Remedy documents, whatever
you want to call them, the 17 that have been identified by
the defendant in their opposition, and the other document
now.
There's a lot more meat on the bones, so to speak,
on the project documents as far as the 30(b)(6) deposition.
The declaration only addresses those documents for the most
part, and so I think -- you know, I have a record in front
of me that, you know, honestly has surmised, may be wrong,
may be this, may be that, but I don't think I have enough
factual information in front of me to make the finding that
it isn't protected or that I would need to do an in-camera
review of those documents.
I think, read broadly and, you know, fairly, that
the 30(b)(6) deponent indicated that all five of these
projects, I guess, or at least the four in the second part
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 47 PageID#
of the Banksy projects were all done as a result of
government investigations and the concern of future
litigation anticipation.
You know, I am accepting Google's representation
that if we task somebody to go focus on something quickly
about making change A, but there's some other group out
there that's working on change A that got a much broader
base, and, you know, more involved in doing things like
that, that they're not holding that back because, you know,
of changes to products or platforms or whatever are a part
of an ongoing business investigation.
But it sounds to me in reading the record, that,
at various points in time, lawyers were involved, thoughts
were being made about how can we resolve certain things, and
people were tasked with investigating that, and those were
the specific projects.
And, you know, again these were projects that, at
least based on the information that's been presented to me,
were modest in nature and seemed to be one-offs, to some
extent.
45 hours, 50 hours or 10 hours on a project, that is not
indicative of something that is of a major undertaking by a
corporation like Google.
deposition testimony, of all the individuals involved,
counting up all their time, including the presentations.
And obviously if you spend, you know, 30 hours,
And that includes, as I read the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 48 PageID#
And there were a lot of people that were at some of these
presentations.
So, you know, this is an issue that I think was
tied -- these projects themselves were tied to particular
issues having to do with trying to resolve, address some
concerns with ongoing investigations or remedies.
think that, you know, the assertion of the privilege on
those documents, given the record that I have of the 17 --
and, again, I'm only addressing the 17 that are in front of
So I do
me.
So I'm not, as Judge Castel said, making advisory
opinions as to any of the other documents.
different factual record for them, then I would have to deal
with them.
require them to be produced for in-camera review and
inspection.
that's sufficient for me to make them to do that.
know, I'll be honest with you, I think part of that is
having gone through this process before in some big cases.
Reading a document doesn't tell me the intent of
If there's a
But as to those 17 documents, I'm not going to
I don't think that a showing has been made
And, you
the document.
And it's a difficult way -- I mean, you know,
it doesn't -- they don't typically say I am producing this
document as a result of, you know, you're so-and-so and
directions and those kinds of things, although, it appears
that there's some instructions from people to do certain
things.
But I think under the circumstances, I'm not going
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 49 PageID#
to -- I do think I should look at Number 7, though.
I
think, you know, there's enough going around with Number
that it probably is appropriate for me to at least review
both the current redacted version and an unredacted version
of Document Number 7.
further briefing, argument or discussion on that.
at it.
be able to make a decision on that hopefully fairly
promptly.
I'll look at it, and I don't need any
I'll look
I have the list of the people involved, and so I'll
But get me that sometime by tomorrow, if you
could, and I'll look at it and get you a decision on
Document Number 7 early next week.
Okay.
Anything else on this case today?
MS. ELMER:
MR. TESLICKO:
THE COURT:
MR. REILLY:
You had mentioned some concerns about the sealing,
Thank you, Your Honor.
Thank you.
Mr. Reilly.
Yes, Your Honor.
Just quickly.
and we would -- I don't know what the Court had in mind.
For example, if you wanted to identify particular exhibits
you were thinking of unsealing or that could be resubmitted
in redacted form.
many we could work out in advance and whether we would
request further briefing.
We could then address those and see how
THE COURT:
Yeah.
I am inclined, just given the
nature of this case, before denying a motion to seal
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-16Page 50 PageID#
outright, probably requesting further briefing on that issue
to get the parties to look at it a little bit closer and do
things.
motions, but also --
But, I mean, I was focusing on the substantive
MR. REILLY:
THE COURT:
Understood.
-- in doing that was looking at some
of the information that had been redacted in that version,
and I have some concerns of whether it's going to meet the
appropriate standard.
But I think, under the circumstances, it's
probably better for me to give you a warning and one more
opportunity to address it before I just say the clerk is
directed to unseal something.
MR. REILLY:
THE COURT:
MS. WOOD:
THE COURT:
Okay.
Thank you, Your Honor.
Thank you.
Anything else?
Thank you, Your Honor.
Okay.
Thank you.
Court will be
adjourned.
(Proceedings adjourned at 3:07 p.m.)
----------------------------------
I certify that the foregoing is a true and accurate
Case 1:23-cv-00108-LMB-JFA Document 272 Filed 06/16/23 Page 1 of 50 PageID# 2599
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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
Thursday, June 15, 2023
Alexandria, Virginia
Pages 1-50
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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 2:00 p.m.
10
A P P E A R A N C E S:
11
FOR THE PLAINTIFFS:
12
13
GERARD MENE, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3700
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15
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JULIA TARVER WOOD, ESQUIRE
DAVID TESLICKO, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. 20530
(202) 894-4266
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19
20
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JONATHAN HARRISON, 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
JULIE ELMER, ESQUIRE
CLAIRE LEONARD, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. 20005
(202) 777-4500
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SCOTT EISMAN, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
601 Lexington Avenue
New York, New York 10022
(212) 277-4000
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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:
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
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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P R O C E E D I N G S
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THE DEPUTY CLERK:
al. versus Google LLC, Civil Action Number 22-cv-108.
4
5
United States of America, et
MR. MENE:
Good morning [sic], Your Honor.
Gerard Mene with the U.S. Attorney's Office.
6
MS. WOOD:
Good afternoon, Your Honor.
7
Julia Wood.
8
from the Department of Justice will be arguing today.
9
Good to see you.
MR. EWALT:
My colleague, David Teslicko,
Good afternoon, Your Honor.
10
Andrew Ewalt from Freshfields on behalf of Google.
11
joined by my colleagues, Julie Elmer, Scott Eisman,
12
Claire Leonard and Craig Reilly.
13
on behalf of Google this afternoon.
Ms. Elmer will be arguing
14
THE COURT:
15
Just a couple of preliminary matters before we get
16
Okay.
I'm
Thank you.
into the argument.
17
First of all, thank you all for working together
18
to get the other motion to compel resolved and custodial
19
issues and the other things.
20
that and working together to be able to do that.
I appreciate you all doing
21
I also want to just highlight that I am concerned
22
a little bit about the motions to seal that have been filed
23
for all three sets of the pleadings relating to this current
24
motion.
25
As you know, the documents will remain under seal
3
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until I issue an order dealing with those things, but there
2
may be some further briefing that may need to be done, or I
3
may just decide it on the papers.
4
that everything that everybody is asking to be sealed will
5
remain under seal.
6
But I think it's unlikely
And I understand that there are two standards that
7
are put into place, and we're dealing with the lesser
8
standard on these discovery-related matters.
9
probably know, Judge Brinkema is one of the judges in our
But as you
10
court that is very sensitive about what gets to remain under
11
seal, and so I am tasked with the order to make sure that we
12
don't over seal information.
13
So I want to highlight that.
And I also want to remind you -- and I think I had
14
indicated to the parties earlier when we were talking about
15
overall scheduling -- that neither Judge Brinkema or I will
16
be here on the 30th of June.
17
conference is going on that Friday, so there will be no
18
motions heard in this case on June 30th.
19
Okay.
The Fourth Circuit judicial
I have read all the papers, all the
20
exhibits, including the 250-page transcript of the 30(b)(6)
21
deposition.
22
some factual questions that I really want to get sort of
23
sorted out before I hear the legal argument.
24
ask counsel for the government to come forward first.
25
to the extent that you can answer my factual questions,
I understand most of the issues.
I do have
And so I'll
And
4
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that's good; if not, I may ask Ms. Elmer to pitch in and
2
help out.
3
So, as I understand it -- and I guess before we
4
go -- nothing else has been worked out other than the two
5
documents that have been produced and some lesser redactions
6
on four documents; is that right?
7
MR. TESLICKO:
That's correct, Your Honor.
Two
8
documents were produced without redactions; four documents
9
were produced with more limited redactions.
10
THE COURT:
All right.
I didn't want to get all
11
wound up and find out I didn't need to do that like last
12
time period, so thank you for that.
13
There seems to be some disconnect between your
14
briefing and their briefing on the number of documents that
15
are related to the Remedy Projects.
16
that as the term, because I think that's the term that the
17
parties have both used to some extent.
18
chart, you have 14, and in their briefing and declaration
19
and all that, they have it as 17.
20
Documents 2, 10 and 16.
21
22
23
You know, I'll just use
At least in your
The difference is
Do you agree that 2, 10 and 16 were related to the
Remedy Projects, or do you not.
MR. TESLICKO:
So, Your Honor, I think the simple
24
answer is we don't know because those documents were
25
withheld in full.
When we identified in the appendix to our
5
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motion which documents were based on code-named projects, we
2
did that based on a letter we had previously received from
3
Google during the course of the pre-complaint investigation.
4
So for the documents you identified where we
5
previously didn't identify them as code-named projects, it's
6
either because we -- it's because they were not identified
7
in that letter from Google, which was the basis for our
8
chart.
9
THE COURT:
Well, if you look at 16 -- I can see
10
that maybe for 2 and 10.
11
in anticipation of litigation in response to active
12
government investigations."
13
14
But 16 says:
"Project undertaken
Why did you not cross the code-named project when
the privilege log description says that directly?
15
MR. TESLICKO:
16
very specific projects.
17
description whether the document related specifically to a
18
code-named project or was more generally a communication in
19
anticipation of litigation.
20
THE COURT:
21
MR. TESLICKO:
22
Because the code-named projects are
It was unclear from this
Okay.
I don't think we're factually
disagreeing with Google's assertion that it relates to --
23
THE COURT:
Well, you've seen the Lazarus
24
declaration where he outlines that and indicates what those
25
were.
Okay.
6
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And just to make sure I am clear -- it wasn't
2
necessarily in the briefing and I just want to make sure --
3
because I think it has some significance.
4
Remedy Project documents were produced with redactions and
5
others were withheld completely; is that accurate?
6
MR. TESLICKO:
Some of the
So I -- Your Honor, I would clarify
7
that to say that some documents that were produced with
8
redactions involved Remedy Projects.
9
portions of those documents do not discuss or disclose the
10
The unredacted
Remedy Projects.
11
To our knowledge, any document describing the
12
substance of the Remedy Project was fully withheld.
13
the document was solely about our project, it was completely
14
withheld.
15
code-named project but a portion did not, Google redacted
16
everything related to the code-named project.
17
So if
If a portion of the document related to a
THE COURT:
Okay.
So just so I have a better
18
sense going through the list, 1 was redacted, 2 was withheld
19
completely, is that right?
20
MR. TESLICKO:
21
THE COURT:
22
23
Correct.
And I'm just going through the ones
that I understand were related to the Remedy Projects.
Five was withheld completely, 6, 8, 9, 10 and 11
24
were withheld completely.
12 withheld completely, 13 was
25
redacted, 14 was withheld completely, 15 was redacted, 16
7
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was redacted, 18 and 19 were redacted, and 20 was withheld
2
in total.
3
MR. TESLICKO:
4
THE COURT:
That's correct, Your Honor.
Okay.
Okay.
All right.
I think that
5
probably takes care of my just overall factual questions
6
about what I wanted to make sure we were -- I was dealing
7
with when we talk about the various issues.
8
9
And I will say that there -- the real issue, as I
understand it that you're presenting to me, is should I look
10
at these documents in camera.
11
question as to whether you've made the adequate factual
12
showing that at least some of the information contained in
13
the documents may be subject to disclosure is what you say
14
that you need to do on page 11 of your memo.
15
And I guess there is a
I think it's going to be significant for you to
16
discuss that in two parts.
17
the Remedy Projects; and the other is the factual showing
18
for the, arguably two, maybe more, documents that aren't
19
Remedy Projects that are still in dispute, which I think
20
would be 3 and 7.
21
One is the factual showing for
So I'm seeing them through different lenses, to be
22
honest with you, and so I want to make sure I understand
23
what your argument is as to both of them and not putting
24
them all together.
25
Okay.
So let me hear what you've got to say.
8
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MR. TESLICKO:
2
After many months of conferring with Google on its
3
Sure.
privilege assertions, plaintiffs --
4
THE COURT:
5
MR. TESLICKO:
6
THE COURT:
7
MR. TESLICKO:
8
THE COURT:
9
2021, or I think that's right.
10
Thank you, Your Honor.
Years.
I mean --
Yes.
-- you knew about this in 2021.
That's correct.
Google sent you a letter in August of
August of 2021, they said we
think these are privileged materials.
11
MR. TESLICKO:
That's correct.
12
We met and conferred extensively since that time
13
to try to narrow a variety of privilege disputes.
14
acknowledged, they did produce tens of thousands of
15
documents as part of that meet-and-confer process, but we
16
still have some outstanding disputes, especially related to
17
the project documents.
18
motion to compel, seeking an in-camera inspection of 21
19
documents that we created as a sample of certain categories
20
of documents we had discussed with Google.
21
supposed to be somewhat representative, not statistically
22
significant, but a general sample of the main categories of
23
documents that Google continues to withhold, either for
24
attorney/client privilege or for attorney work product.
25
As Google
And, as a result, we filed a present
Those are
And we picked those categories because they
9
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represent both the greatest concerns to the government in
2
terms of the privilege claims that Google's asserted, and
3
also we believe they're the most relevant, or some of the
4
most relevant documents, to the main issues in this case.
5
They involved -- they appear to involve key business
6
decisions, business strategies that are at the heart of the
7
government's complaint.
8
9
THE COURT:
And --
Help me understand the factual basis
for what you just said.
You took a lengthy deposition of a
10
30(b)(6) deponent who testified about, in broad terms, these
11
five projects, and, as I understand it, other than the
12
Banksy one, nothing ever came of it.
13
that's what he said.
14
have any factual information that no decisions were made
15
based on those projects?
16
Is that -- I mean,
Is that different than what -- do you
MR. TESLICKO:
We do not have any factual
17
information that decisions were made based on those
18
projects.
19
as -- I think this is -- the names of the projects are not
20
being withheld here.
21
THE COURT:
I would point out that certain projects, such
I mean, in their opposition -- I mean,
22
at least the brief in their opposition, as I understand it,
23
only withheld the names of deponents or names of
24
individuals.
25
MR. TESLICKO:
For example, Project SingleClick
10
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and Project Stonehenge evolved into a non-privileged
2
code-named project called 1Door that continues to -- at
3
least as of the time of the deposition was still continuing.
4
So I don't know if ultimately business decisions
5
were made that stem from those earlier projects.
6
answer your question specifically, no, we don't have any
7
information that a particular business decision was made,
8
only that they were considered as part of these code-named
9
projects.
10
THE COURT:
Okay.
But to
And presentations were made,
11
and then either the project moved from SingleClick to
12
Stonehenge or Sunday to Monday or whatever, but -- okay.
13
All right.
14
So, you know, you mentioned business decisions,
15
and that's why I was trying to understand if my
16
understanding, from based on the deposition transcript and
17
other information, that there were actual decisions made as
18
a result of this.
Okay.
19
Keep going.
20
MR. TESLICKO:
Sure.
Just to clarify, Your Honor,
21
I don't think we have any evidence that decisions were made
22
coming out of that project to take particular actions,
23
except for Project Banksy and possibly Project 1Door, but
24
there were, you know, the negative inferences that decisions
25
were made not to change certain policies that are within the
11
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scope of the government's complaint today.
2
Going back to the purpose of the motion, you know,
3
as Your Honor already noted, we filed the motion, Google has
4
withdrawn two of its claims and narrowed four.
5
thing I would point, though, in addition to narrowing its
6
claims or abandoning those particular claims, it also
7
abandoned its attorney/client-privileged claims for 13 of
8
the remaining documents.
9
assigning attorney/client privilege over 13 documents.
The other
Those were on the log.
Google is
It's
10
not advanced those claims in its opposition brief.
And, in
11
fact, for five of those documents in those logs, they never
12
asserted work product.
13
product was in the opposition brief.
So the first time they asserted work
14
The bulk of the remaining dispute, as Your Honor
15
has focused on, are the 17 project-related documents where
16
Google asserts privilege, and so I'll start there.
17
In our view -- or we understand that Google's
18
taken the view that because it faced frankly a tsunami of
19
domestic and international investigations into its business
20
decisions, that key strategic and commercial discussions and
21
analysis related to those can be walled out by attorney work
22
product protection, and we think that that would lead
23
ultimately to a perverse result.
24
subject to substantial litigation because of their business
25
practices are able to potentially wall off key portions of
12
That large companies
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their business.
2
subject to litigation are not able to avoid the wide breadth
3
of discovery.
4
5
6
By contrast, smaller companies that are not
And I also want to make clear at the outset
before -- sorry, Your Honor.
THE COURT:
If you look at what the evidence is in
7
front of me, these projects would not have been initiated if
8
there hadn't been the investigations that were ongoing.
9
They were initiated as a result of those.
10
11
12
13
Are you saying
that's right or not right?
MR. TESLICKO:
I think, respectfully, we would
disagree, Your Honor, at least with some of the projects.
So, for example, Project Sunday, according to the
14
deposition testimony of the 30(b)(6) deposition testimony,
15
the corporate representative there did say that litigation
16
was one of the animating reasons for Project Sunday.
17
when asked if regulatory matters also led to the creation of
18
Project Sunday, the deponent testified that many countries
19
or regions that -- have put into effect some either privacy
20
or antitrust regulations.
21
longer here when he was asked what animated Project Sunday.
22
But
So that list is going to be much
So I think that's one small piece of evidence.
23
That, in addition to litigation reasons.
There may have
24
been commercial reasons or regulatory reasons that led to
25
the initiation of Project Sunday.
13
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And just to take a step back, Your Honor, the
2
government is at a disadvantage here, as anyone challenging
3
privilege claims is.
4
documents.
5
reviews those documents in camera and it turns out that, on
6
their face, they clearly reflect litigation strategy, the
7
legal opinion work product of counsel, the government's not
8
seeking that.
9
have compiled about why these projects were initiated and
10
what they covered, we think there's a reasonable basis to
11
believe that portions of those documents involve business
12
discussions that occurred before the project began, or
13
business discussions that would have occurred irrespective
14
of the anticipated litigation.
15
THE COURT:
16
MR. TESLICKO:
We haven't seen the underlying
And I want to be clear that if Your Honor
But based on the scraps of evidence that we
Okay.
Go ahead.
So I think the main portion -- or
17
point where Google and the plaintiffs seem to disagree with
18
respect to work product is whether it is relevant that the
19
documents have a nexus to business discussions or business
20
decisions.
21
Google, in its opposition at page 13, takes the
22
view that whether there's a nexus between the documents and
23
business decisions is irrelevant.
24
because the projects --
25
THE COURT:
And they represented that
It's not dispositive, I think is what
14
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they really are arguing.
2
MR. TESLICKO:
I would agree with that, Your
3
Honor.
4
dispositive one way or the other, but it's certainly
5
relevant.
6
One security breach litigation, the Zetia decision as well,
7
reflect the reality that the analysis is a totality of the
8
circumstances consideration that looks at who was involved,
9
the nature of the documents, the purpose of the documents,
10
11
And that's the position we're taking.
It's not
And I think Your Honor's decision in the Capital
the use of the documents at issue.
And that's why, Your Honor, the United States and
12
plaintiff states have requested in-camera review to shed
13
light on that question, because we tried to take a 30(b)(6)
14
deposition and got very little information about the nature,
15
scope, purpose of the documents at issue, or, frankly, who
16
was involved in creating them.
17
THE COURT:
Well, you got direct answers from the
18
person about who was involved telling you, you know, this
19
person was on the team, this person didn't do anything, this
20
person was an engineer, this person was that, that we spent
21
10 hours, 30 hours, 50 hours.
22
these are major business decisions, that Google spends
23
20 hours on a project, and you seem to think that's a
24
significantly major business decision that Google is making
25
seems to be a little bit of a stretch.
And you make the argument
15
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But, I mean, you know, not only the letter that
2
you got before the deposition, but the deposition itself
3
also clearly outline what lawyers were involved, you know,
4
who was on the work team and who was on the supervisory team
5
and those kinds of things.
6
say you don't have any idea who was doing anything.
7
MR. TESLICKO:
So I don't understand why you
I think we know, Your Honor, who
8
was involved generally in the project.
Those people were
9
identified in the letters and in the depositions.
But even
10
Google's corporate representative pointed out that there was
11
a difference between people who worked on the project and
12
people who were just generally aware.
13
example, as he testified, covered both.
14
And the letter, for
When we tried to get more information about who
15
actually created these documents, what their roles were, we
16
did not get that information.
17
information is important as the Court considers the totality
18
of the circumstances, whether these documents would have
19
been created for business reasons, for regulatory reasons,
20
for any other reason besides litigation.
21
I think that type of
And not to say that litigation wasn't one of the
22
reasons.
I think we all agree that those were multipurpose
23
documents.
24
the evidence available to us that we've identified in
25
pages 18 to 22 of our motion, our opening brief, suggest
They may have served a litigation purpose, but
16
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that these were either continuations of the types of
2
business discussions that occurred beforehand.
3
Banksy is a great example because Google has
4
acknowledged there was a Banksy project that considered the
5
exact same product changes under the exact same code name.
6
One's privileged; one's not.
7
the documents where they had redacted the word "Banksy" kind
8
of illustrates that it's really hard for them to even police
9
the line between the privileged and non-privileged version
Their deprivileging of one of
10
of Banksy.
11
that the non-privileged Banksy court had morphed into the
12
privileged Banksy.
13
And their deponent at the 30(b)(6) recognized
And that's not -- and so I think, you know, in
14
light of the evolution of some of these projects from
15
privileged to non-privileged, which is SingleClick and
16
Stonehenge evolving into 1Door, and Banksy evolving from a
17
non-privileged project to a privileged project, there's some
18
reasonable basis to believe that these were ongoing business
19
discussions that would have occurred in substantially
20
similar form, which is the standard, but for litigation.
21
I think the other piece of evidence we would point
22
to is the little information we have about some of these
23
projects further confirms that there were commercial
24
purposes driving this analysis.
25
So, for example, in our opening brief, we identify
17
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that one of the projects, per Google's own documents, was
2
initiated because of competitive pressure on margins, and as
3
part of that project, they consider changes to prices,
4
policies.
5
in the ordinary course of business, and they're precisely
6
the types of changes to policies or existing policies that
7
are at issue in the government's complaint here.
8
9
Those are the kinds of discussions you would see
And, again, we're not saying that litigation had
no bearing on this.
Certainly anticipated litigation was
10
relevant to what was going on in these business discussions.
11
But it wasn't the driving force, as the Fourth Circuit has
12
said the standard is, and we don't think that every portion
13
of every document would not have been created in
14
substantially similar form.
15
What we're asking the Court to do, and what we've
16
asked Google to do, is to take a narrower view of work
17
product that's more consistent with the narrow view of
18
privilege articulated by the Fourth Circuit.
19
answer is, go through the documents, redact out litigation
20
strategy, redact out legal opinions, but produce the other
21
business analysis that's contained in those documents.
22
THE COURT:
And that
Well, if I was going to accept the
23
statements under oath by the 30(b)(6) deponent -- and one is
24
stronger than the others, but I'll take the strongest --
25
that this project would never have been undertaken if we did
18
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not anticipate litigation.
So help me understand how
2
anything done with a project in which the statement is "this
3
project would have never been undertaken unless there had
4
been litigation" doesn't fall within the parameters of
5
something that should be protected.
6
MR. TESLICKO:
So two answers, Your Honor.
7
First, I think the question -- the work -- the
8
question about whether a document is covered by work product
9
centers on that particular document.
And one of the faults
10
we identified with the declaration was, it makes those
11
statements -- it parrots the work product standard at the
12
project level.
13
project and kind of skips a step.
14
is, were these specific documents in whole, because they've
15
been withheld in full, created because of litigation, and
16
would the entire document -- no portion of the document have
17
been created in substantially the similar form but for
18
litigation.
It says the documents are related to the
19
So I think --
20
THE COURT:
Because the real question
If you accept the fact that this would
21
have never been created unless there was litigation, then
22
shouldn't everything in the document be protected?
23
start a project, and I would have never started the project
24
unless there had been litigation or anticipation of
25
litigation, then the reason that it was started was
If you
19
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anticipation of litigation; right?
2
MR. TESLICKO:
So that is correct, Your Honor.
3
But I think it depends what gets shoehorned into that
4
project.
5
So to play on that hypothetical, you know, but for
6
litigation, would there have been a project called Project
7
Sunday?
8
question about whether once you create Project Sunday, if
9
you feed into that broader project, commercial discussions,
Maybe not.
Probably not.
But there's a separate
10
regulatory discussions that were already ongoing or would
11
have occurred anyway, does that mean that the work product
12
protection now encompasses all of those discussions that
13
would have been going on at the company more generally?
14
On your question specifically about the
15
declaration, though, I would direct the Court to Zetia where
16
the declarants there, three declarants, in fact, had similar
17
statements, if not stronger statements, that none of the
18
documents would have been created but for litigation in any
19
form.
20
review.
21
documents at issue, but it also went out of its way to
22
clarify that financial analyses or projections -- standalone
23
financial analyses or projections contained in those
24
documents, if they're responsive to discovery requests,
25
must, nonetheless, be produced separately.
And even then, the Court undertook an in-camera
It did uphold the work product protection for the
20
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1
2
THE COURT:
reveal the intent behind the preparation of the documents?
3
4
How would a review of the documents
MR. TESLICKO:
Your Honor, without seeing the
documents, it's hard for me to say.
5
THE COURT:
I know.
6
MR. TESLICKO:
I will acknowledge it's possible
7
that Your Honor could review the documents and it's not
8
clear.
9
because of litigation, it all reflects litigation strategy,
It could look like the entire document was created
10
and then Your Honor would probably uphold the claim.
11
think there's also a reasonable chance that Your Honor looks
12
at the documents, and at least portions of the documents
13
clearly have nothing to do with litigation strategy, legal
14
opinion of counsel, and are simply considerations of changes
15
to the business that would have occurred in the ordinary
16
course.
17
18
THE COURT:
All right.
But we
So let me just pose this
hypothetical.
19
So project -- pick one, I don't care which one --
20
says, you know, go off, and can we do X?
And if we do X,
21
what's going to happen to our business?
One technical, one
22
business.
23
because they need to know whether we're going to pursue a
24
remedy of proposing it will do X.
25
And the lawyers and the client need to know both
You're telling me that making an analysis of
21
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making a change to X should be produced even though, by
2
producing that information, you're disclosing what X would
3
have been?
4
MR. TESLICKO:
I think, Your Honor, we're arguing
5
something slightly different.
And not to change your
6
hypothetical, but maybe to distinguish the two cases, I
7
think there's a difference between what -- the type of
8
document Your Honor reviewed in the Capital One security
9
breach case where there was no dispute there, a report was
10
commissioned because of litigation, no one disputed that
11
litigation was anticipated, and the core question is,
12
looking at those documents, would something like this have
13
been created in the ordinary course anyway?
14
settlement proposal, like in Zetia, where the only question
15
there is should we settle, and is this economically
16
feasible?
17
Versus a
I think there's a very large gap in between those
18
two worlds.
I think we are -- we believe that at least
19
portions of the documents and portions of these projects are
20
closer to the Mandiant report in the Capital One security
21
breach case where, you know, the type of business analysis
22
was ongoing and would have occurred anyway, but it got
23
rehoused in light of anticipation of litigation under a
24
project.
25
nonetheless, Your Honor ordered it produced.
And there it was directed by counsel, and
And I think -22
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2
THE COURT:
Well, that was -- that case is much
different than this case.
3
MR. TESLICKO:
4
THE COURT:
Recognizing --
You've got an enormous data breach
5
that comes -- immediately comes about.
6
Capital One are under strict regulatory guidelines of what
7
they need to do.
8
was there for their business purposes.
9
contract, they just brought them in to start something
10
The people at
They already had a company on call that
They used the same
there.
11
If you go to the second part of my decision in the
12
Capital One case, you see it's much different.
13
was a different set of people, different things, you know,
14
lawyers were involved, lawyers were directing it.
15
that -- and I said you didn't need to produce that one.
16
you're picking one, but there's another one out there that
17
analyzes things in a little bit of a different light.
18
MR. TESLICKO:
You know, it
I understand, Your Honor.
You know,
So
And that
19
also involved, you know, an outside vendor.
I think there
20
is analogy here, though.
21
does this work all the time in the ordinary course of
22
business.
23
who were working on the same product changes, they took the
24
same team, asked them to continue the work they were already
25
doing, with an eye towards part of it addressing a
Google took an existing team that
You know, again Banksy, it's the same employees
23
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1
regulator's concern, but as the 30(b)(6) deponent testified,
2
they also went out to customers, discussed how the product
3
change would work with them, commercialized it.
4
That sounds like a commercial-type discussion,
5
that, again, relevant to litigation, relevant to settlement,
6
no dispute there.
7
example, seems like an ordinary course business discussion
8
and analysis that would occur at Google.
But at least a portion of that, for
9
And that may be true of these other projects.
10
I indicated, some of the few documents we have on these
11
projects suggest that it was commercial concerns driving
12
some of these analyses around margin pressure.
13
Honor might be able to review the documents and see, you
14
know, this half of a deck talks about the commercial
15
considerations and why we may or may not, irrespective of
16
litigation, want to change the way our products work or the
17
margins we're charging, here's a separate part of the
18
document that deals with the United States government's
19
investigation, the State of Texas' investigation, here's how
20
this proposed changes could be used as a remedy in that
21
case, or here's our analysis of the strength of those
22
claims, do we need to do this business project for that
23
separate purpose.
24
25
THE COURT:
As
And Your
But by disclosing the financial
analysis of this change that's under consideration, it would
24
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1
disclose what the change was under consideration.
2
that's what it would.
3
I assume
Again, I haven't seen it.
But, you know, again, if it's -- you know, if the
4
team is tasked with think about doing X and let me know
5
what's going to happen, can we do X, and, if so, what's
6
going to happen, and they spend a week or two or a month,
7
maybe, in some of these, six weeks for one, you know,
8
brainstorming, coming up, getting some information together
9
and saying, yes, we can do X, and if we do X, then the
10
impact financially is Y.
11
financially is Y, then you're getting information relating
12
to the remedy that was under consideration.
13
what I'm asking?
14
MR. TESLICKO:
If I give you the impact of X
You understand
I understand what you're asking,
15
Your Honor.
I think hypothetically a document could look
16
like that.
17
consider a range of different prices Google was going to
18
charge on its products, and based on its market power in
19
these markets, whether it could or could not charge certain
20
of those.
21
prices, a range of product changes, I don't think that
22
necessarily discloses at all what Google was planning to
23
propose.
24
of those remedies.
25
decisions didn't come out of many or most of those projects.
25
I think also hypothetically a document could
And if the document is portraying a range of
And, to our knowledge, Google didn't propose most
As Your Honor noted in the 30(b)(6),
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So I'm not sure they ever got to a final Remedy proposal.
2
But we are very interested in the business analysis that was
3
ongoing separate and apart from any kind of Remedy proposal
4
that was or wasn't made.
5
THE COURT:
Help me understand how you think that
6
would be divorced from the proposal that is being
7
analyzed -- the proposal that is under consideration if you
8
look at what the financial impact that would have.
9
MR. TESLICKO:
So I -- I don't think that --
10
again, it's hard to talk in abstract without seeing the
11
documents, of course, but I don't think it's necessarily the
12
case that a business analysis of we are charging X margin on
13
these products right now, we think we could charge more, we
14
could charge less.
15
of doing so, this is what our competitors would do or force
16
us to do.
17
discloses Google's attorneys' views of the strengths or
18
weaknesses of the government's case, of what the remedy
19
proposal will be.
20
These would be the commercial outcomes
I don't think a general analysis necessarily
Now, if there is no separate slide like that and
21
there's only a slide or a document that says this is the
22
proposal, here's how much it will cost us, I don't think we
23
would argue that that should be produced.
24
Google's broad view of every single reference to these
25
projects as privileged, we think there might be something
But given
26
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less that Google could produce.
2
THE COURT:
3
4
Well, talk about the other two
documents.
MR. TESLICKO:
So the other two documents, Your
5
Honor, where Google continues to assert attorney/client
6
privilege, one is Document 3 where they've removed most of
7
the redactions.
8
9
I think they --
THE COURT:
So there's only one redaction left; is
that right?
10
MR. TESLICKO:
Yes.
Yes.
11
And, Your Honor, we wouldn't press that claim.
I
12
mean, we do think that in light of their decision previously
13
as part of a clawback -- so this was an intentional decision
14
to clawback the document and make those redactions, we think
15
those prior redactions were clearly unsupported, and that
16
would frankly give Your Honor a sufficient basis to exercise
17
the discretion to look at the remaining redaction.
18
we're not pressing that particular document at this time for
19
in-camera review, because the redactions had been narrowed
20
to remove those from the finance section, from the top
21
partner section and to just focus on the legal section,
22
which seems relatively appropriate.
23
24
25
But
The other document, Your Honor, where Google
continues to assert an attorney/client privilege claim -THE COURT:
Number 7.
27
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MR. TESLICKO:
Number 7.
So they did remove some
2
of those redactions -- one set of redactions in that
3
document.
4
The rest of that document describes -- deals with,
5
again, similar to the code-named projects, changes to
6
product policies, changes to revenue shares and margins.
7
was created by a non-lawyer, and I would note that the
8
privilege basis identified in their log is providing legal
9
advice -- providing legal advice regarding legal aspects of
10
product development.
11
privilege basis they used in Document 21, which they
12
withdrew the redaction for.
13
It
That, in fact, is the same type of
Just to us, in light of all the other documents
14
that they've produced, including the ones they've produced
15
in response to our motion, the fact that there's no lawyer
16
actively participating from the face of the document that we
17
can see, combined with the broader discussion of revenue
18
shares and changes to buying doors, we think the Court
19
should engage in an in-camera review of that document to
20
confirm that that redaction just cannot be narrowed.
21
22
23
THE COURT:
Okay.
What else would you like to say
in your opening salvo here?
MR. TESLICKO:
The only thing I would add, Your
24
Honor, is because Google deprivileged, in full, two
25
documents that were withheld for a substantial period of
28
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1
time on the basis of attorney/client privilege, we did
2
request in our reply that the Court supplement --
3
THE COURT:
4
MR. TESLICKO:
5
We're not substituting.
Okay.
Understood, Your Honor.
I
just wanted to raise it.
6
THE COURT:
Okay.
7
MR. TESLICKO:
8
THE COURT:
9
One issue I want you to address initially is what
Thank you, Your Honor.
All right.
We'll hear from you.
10
impact, if at all, does the protective order that was
11
negotiated, agreed to and entered by the Court have on the
12
issue of whether I should be doing in-camera review.
13
to maybe refresh your recollection as to what the protective
14
order provides, is that -- and this is in the -- basically
15
the clawback provision.
16
Just
It says once they had been asked to claw it back,
17
what you need to do, must not use or disclose the
18
information of the claim as resolved, must take reasonable
19
steps to retrieve the information and may promptly present
20
the information to the Court under seal for determination of
21
the claim in camera.
22
What -- if you read that language, it doesn't seem
23
like, you know, anything's in there.
You know, subject to
24
the preexisting law that you have to show certain facts or
25
circumstances; it sounds like it was negotiated by the
29
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1
parties.
2
they may promptly present the information to the Court under
3
seal for determination of the claim in camera.
4
If you claw this back, they will not use it, but
MS. ELMER:
Your Honor, I admit, I had not focused
5
on that particular part of the protective order.
I had been
6
focused on 12(a), which stated that, you know, clawbacks of
7
documents are an inadvertent production or a production of
8
material.
9
of the privilege.
Whether inadvertent or otherwise is not a waiver
And I was looking at that particular
10
provision particularly in light of some of the arguments
11
that the DOJ had made in their brief.
12
But if you'll indulge me, Your Honor --
13
THE COURT:
Okay.
14
MS. ELMER:
-- I'll take a look at the other
15
16
provision.
Yes.
So my understanding, Your Honor, is that
17
that provision is if they do not want to sequester the
18
document or give the document back upon our request that
19
they claw it back, then they may present it to Your Honor.
20
I think, so far, we've been able to manage our --
21
THE COURT:
It's not "or," it says "and."
These
22
are all things that are required.
One, will promptly
23
notify -- after being notified, the party must promptly
24
return, sequester, destroy the information.
Must not use
25
the information until the claim is resolved.
Must take
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reasonable steps to retrieve it, and may promptly present
2
the information to the Court under seal for determination of
3
claim in camera.
4
MS. ELMER:
So the clawbacks that were made that
5
we're here about today, Your Honor, were clawbacks that were
6
made two years ago.
7
THE COURT:
Okay.
All right.
So go ahead and
8
tell me what you want to tell me based on what their
9
argument was.
10
11
MS. ELMER:
So Google's position in this dispute
is based on factual information, information in the record.
12
We have a deposition of a corporate witness,
13
30(b)(6), who sat for a full day of testimony to answer
14
questions about these Remedy Project documents, and he
15
answered all of the questions that he could without waiving
16
the privilege or waiving work product protection for those
17
documents.
18
The plaintiffs' position, on the other hand, is
19
based on speculation.
20
Project SingleClick and Project Stonehenge evolved into
21
1Door.
22
assertion with any evidence.
23
For example, they alerted that
That is not true.
They have not supported that
To the contrary, Google has produced 3 million --
24
nearly 3 million documents in the investigation phase alone.
25
32 Google witnesses provided testimony in the investigation
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alone.
We've produced another 330,000 documents last week.
2
We have another 90,000 coming to them this week.
3
those documents is ample evidence about Project 1Door
4
because it wasn't a Remedy Project, and we produced that
5
information.
And in
6
Similarly, with Project Banksy, Google was so
7
careful in how it conducted its privilege review and so
8
cautious about making sure that we were not overclaiming
9
privilege or overusing work product, that we agreed with the
10
DOJ in early 2021 to run Banksy as a search term for our
11
document production, because we knew there was a portion of
12
it that was ordinary course, and we produced all of that.
13
We also knew that in agreeing to run that term, we
14
were taking on a very heavy burden of a nuanced privilege
15
review, and a difficult one.
16
take that on because we needed to be sure that we were not
17
hiding behind a work product or overclaiming a privilege.
18
But we knew that we needed to
So I do think that, you know, plaintiffs are
19
overstepping here, and they're asking you, Your Honor, to
20
completely disregard the sworn testimony of a corporate
21
representative.
22
been said.
23
projects would not have been undertaken but for these
24
government investigations.
25
I really don't know what more could have
I mean, he specifically testified, these
THE COURT:
He only said that as to one of the
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projects.
2
Others he said that they were started, but he never said
3
they would have never been done absent litigation.
4
That was his strongest testimony as to that.
MS. ELMER:
He was asked, I believe, on page 73
5
about Project Sunday.
Was Project Sunday any other purpose,
6
said no.
7
business project, it was a project that was undertaken
8
because of seven, later eight, active government
9
investigations, all of which he identified in his
It was not a dual-purpose project, it was not a
10
deposition.
11
testified that Google anticipated litigation, which we are
12
now here doing.
13
And because of those investigations, he further
THE COURT:
The language in the declaration, help
14
me understand.
15
and I was a little surprised at the way that it was crafted.
16
"It would not have occurred in substantially similar form."
17
That doesn't necessarily mean that it wouldn't have
18
occurred; it's just the form in which it was done.
19
what that means?
20
It can be interpreted in a couple of ways,
Is that
I mean, that's completely different than we only
21
did -- I mean, that is contrary to the testimony that the
22
30(b)(6) deponent gave about SingleClick that, you know,
23
would never have been undertaken if we did not anticipate
24
litigation.
25
MS. ELMER:
I think a good way to understand that,
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Your Honor, is that there are certain topics that may have
2
come up in the context of some of these Remedy Projects that
3
also may have been addressed in ordinary course projects.
4
In the ordinary course -- any ordinary course
5
document that addresses those topics, Google has produced or
6
is in the process of producing.
7
witness himself testified about some of these topics.
8
You'll see, Your Honor, toward the back of the deposition,
9
there is a section where he is testifying in his individual
And, in fact, the 30(b)(6)
10
capacity about certain subject matters.
11
some subject matters were discussed in the ordinary course,
12
and then they were also discussed in the context of some of
13
these Remedy Projects.
14
And that's because
The nature of the Remedy Project documents, if
15
you're thinking about a topic in the context of what would
16
it take to resolve a government -- an active government
17
investigation, the concept of what would it take to resolve
18
it is revealing the mental processes of a lawyer.
19
very difficult to separate out, you know, a topic or subject
20
matter that might arise also in an ordinary course situation
21
from the overall legal thinking of what would it take to
22
resolve or put to bed this particular investigation.
23
that's why Google has been very careful to produce any
24
ordinary course document that deals with a wide range of
25
topics, any topic, really, relating to its ad tech business,
34
And it is
And
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but it is only refusing to produce these specific Remedy
2
documents where the topics were considered in the context of
3
what would it take to resolve this government investigation.
4
5
THE COURT:
Why are some of these Remedy Project
documents redacted and others withheld completely?
6
MS. ELMER:
So the documents that were created for
7
the Remedy Project documents, those have been withheld in
8
their entirety.
9
particular set that aren't Remedy Project documents, per se.
10
We're calling them that, we label them that for shorthand in
11
our briefing.
12
explains, too, I think, they reveal the substantive details
13
of the Remedy Project documents.
14
two of the documents at issue are employee evaluations where
15
the employee, either himself or his boss, is describing what
16
the employee worked on that year, and the description
17
reveals the substantive nature of the Remedy Project
18
document that the employee assisted the legal department
19
with.
20
unredacted because the evaluation itself is not a Remedy
21
Project document.
22
There are other documents in this
But as the brief explains and the declaration
But, for example, I think
The rest of the employee evaluation is left
The same is true of a couple of email threads
23
where you have employees who are discussing other topics,
24
but then they bring up a particular topic, and then they
25
refer to the Remedy Project document.
Some of these are the
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Remedy Projects.
2
need-to-know group for the Remedy Projects, and by revealing
3
the name of the project, they are revealing the substance of
4
the project because of the context in which they are raising
5
it.
6
Some of these employees were in the
THE COURT:
And, again, I'm reading in between the
7
lines, to some extent, but, you know, I read the MDL
8
decision by Judge Castel.
9
produce those documents in camera.
10
It looks like Google agreed to
Why didn't you do that
here?
11
MS. ELMER:
Those I'm trying to remember --
12
THE COURT:
Four documents at least.
13
MS. ELMER:
-- what happened in that.
14
In that particular dispute, I believe that there
15
was an agreement -- a prior agreement between the parties
16
where the discovery committee in that case was going to
17
select at random, by their choosing, four documents to
18
submit to the Court in camera.
19
negotiation among the discovery committee and the parties in
20
that particular case.
21
So it was sort of a previous
Here, Your Honor, respectfully we believe that in
22
particular with respect to the Remedy Project documents, the
23
record is so strong, we have a declaration, we have a
24
deposition, we don't have any evidence from the plaintiffs
25
that -- to the contrary; we have assertions from them.
We
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also don't have any showing from them that they have a
2
substantial need for this material.
3
What facts are contained in these Remedy Project
4
documents that are not in the millions of pages of documents
5
that have already been produced to them?
6
THE COURT:
They don't know, and I don't know.
7
So, I mean, that's always the problem, you don't know what
8
you don't have.
9
can't point to what they're missing because they haven't
10
seen it isn't going to be a very strong argument; is it?
11
And so you coming in here and saying they
MS. ELMER:
Well, respectfully, Your Honor, I
12
think they have seen these.
13
And I think that's part of the issue here is that they are
14
trying to reconstruct what they have already seen.
15
THE COURT:
These are clawback documents.
Well, put in perspective for me -- I
16
mean, I read the deposition again, and the estimate of the
17
amount of time that was put into these Remedy Projects, I
18
was not overly impressed by the number of hours that were
19
put into any -- Banksy may be different.
20
that was multitudes more than anything else.
21
I'm just trying to get a sense as to how many documents
22
would have been prepared if people only worked on something
23
for ten hours.
24
25
MS. ELMER:
I mean, obviously
But, you know,
And I believe, Your Honor, the -- the
representative testified in specifics on some of these, you
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know, that there was one presentation that was created for
2
Sunday.
3
might be three slide decks out there.
4
or two presentations were created for the other projects.
5
I think that that was maybe given twice, so there
He testified that one
There were not a ton of documents that were
6
produced because these were projects that were taken up.
7
They worked on them for a couple of months, and then they
8
let them die on the vine.
9
Banksy is different, of course, because it is
10
something that actually progressed toward a settlement that
11
the French Competition Authority accepted.
12
13
14
THE COURT:
Okay.
Well, let's talk about the
other document -- or Documents 3 and 7.
MS. ELMER:
So Document Number 3, there's a legal
15
section there that reflects the legal advice of an attorney,
16
Matthew King.
17
document forward.
18
I don't think the DOJ is pressing that
Document Number 7 is a document that is a slide
19
deck, and the redactions are mostly from a comment page that
20
follows a slide deck.
21
can call out other employees in comments, and so the
22
comments that are redacted are either a comment that is
23
discussing a conversation that the employees had with an
24
attorney, an in-house attorney, and repeating the advice
25
that that attorney gave, or one of the comments is from an
38
The way that Google Slides works, you
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attorney himself, and then another one is restating the
2
advice of an attorney.
3
And then there is a bullet on one slide that is a
4
redaction of what legal -- its feedback from legal, and that
5
is what the redaction is.
6
where two bullets are redacted, and those redactions relate
7
to the legal risks of undertaking a decision.
8
9
And then there is another slide
And the comment slides that are redacted, they're
all identical.
So there's three slides that are fully
10
redacted, and all of those are those comments, the
11
back-and-forth comments, and they're all the same.
12
know why they have, you know, duplicates of the slides in
13
there.
14
I don't
That is an example of the type of document that
15
was very common in this review set.
These very complex
16
documents where there are call-outs to lawyers, and they
17
really do require, you know, very careful and sort of
18
tedious review and redaction.
19
THE COURT:
Well, and there was one redaction that
20
was removed that appeared twice; is that right?
21
was that Document Number 7.
I think it
22
MS. ELMER:
Document Number 7.
23
THE COURT:
I know that you've removed some
24
redactions in Document Number 7, or produced a revised
25
version of Document Number 7.
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MS. ELMER:
Oh, that's right.
There is a full
2
slide, You Honor, I believe it is.
3
removed.
4
language is in Google's contracts.
5
reviewer thought that this is kind of contract language,
6
attorney language, I need to redact it.
7
another look at it, as we are always happy to do, and, you
8
know, no, anyone reading a contract would see this, this is
9
not legal advice, and we unredacted it.
10
Yeah.
A full slide was
And what it was is a restatement of what the
I think an overzealous
You know, we took
I think it's Slide
Number 34.
11
THE COURT:
Okay.
12
MS. ELMER:
Thank you, Your Honor.
13
THE COURT:
Thank you.
14
MR. TESLICKO:
15
Thank you.
If I could address a couple of your
questions to Google's counsel, Your Honor.
16
So, first, on the protective order point, we did
17
raise this at the end of our opening brief.
Our protective
18
order is modeled on the MDL protective order.
19
that same exact provision.
20
that the MDL plaintiffs also have this separate privilege
21
committee, but the language around submitting disputes over
22
privilege for in-camera review in the face of a clawback is
23
the same.
24
that provision doesn't apply to prior clawbacks, our
25
understanding is they are taking the position that the
It contains
There is a slight distinction in
And to the extent that Google is arguing somehow
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protective order applies to prior clawbacks for waiver
2
purposes, so certainly it should apply to clawbacks with
3
respect to in-camera review.
4
Going to your --
5
THE COURT:
Well, I mean, my question was really
6
does that really change the law.
7
standard is that you have -- you don't just ask for it; you
8
have to show a reason to do it.
9
is that if I went down that road, I would be looking at, you
10
11
12
13
I mean, obviously the
And, you know, my concern
know, 4,000 clawback documents, or 3,900.
MR. TESLICKO:
That's correct, Your Honor.
And I
will -- we will spare you that.
With that said, the fact that there was a clawback
14
is at least one consideration that the Court's -- that this
15
Court's considered before in whether there's a basis for
16
in-camera review.
17
provision is in the protective order in the clawback
18
section, not that there's a waiver via the clawback, but
19
there's some indicia that, you know, a reviewer -- and in
20
this case, these clawbacks, or for multiple clawbacks,
21
multiple reviewers thought that the substance was not
22
privileged.
23
I suspect that's partially why this
I'll jump to the end where counsel left off, which
24
is Document 7.
And I have copies of Document 7, because
25
it's one of the few privileged documents that I could hand
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up if Your Honor would like.
2
continuing redactions exist on slides that discussed
3
commercial risks at the top, discussed a section called
4
decisions needed on whether to provide direct access to
5
advertisers for one of Google's products.
6
But, just to clarify,
So these are not -- if you look at the slide on
7
its face, there's not obvious indicia that this is a legal
8
section or a legal discussion.
9
they limited the redaction to the legal risks section.
Unlike in Document 3 where
10
point that out just to clarify that this document,
11
Document 7, is different than Document 3.
12
So I
You asked how many project documents were created
13
in light of the short nature of the documents.
14
partial list of the documents that Google's provided to us,
15
which is Exhibit 17 to our opening brief.
16
or so total across all projects.
17
We have a
There's about 250
I will note that, based on the information
18
provided in the opposition, it seems like that list is
19
incomplete because Google's asserted privilege over
20
additional documents not on that list.
21
sense of volume, Exhibit 17 has that information broken down
22
by project.
23
But to give you a
Google's counsel mentioned that we haven't
24
demonstrated substantial need.
We're not seeking a waiver
25
of work product, and the substantial need standard applies
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to waiver; we are merely seeking documents that are not
2
subject to the attorney work product protection, and those
3
would be documents not created in the ordinary course.
4
we need to do to be eligible to receive that -- or entitled
5
to receive those documents is merely show relevance.
6
don't think there's any dispute here that the documents are
7
at least relevant to the plaintiffs' claims.
8
9
10
THE COURT:
All
And I
It all comes down to whether they're
privileged or not.
MR. TESLICKO:
Correct.
Correct.
I just wanted
11
to clarify, we're not seeking to overcome the privilege,
12
therefore we don't need to show separately a substantial
13
need for the documents; it's merely relevance.
14
The last point I wanted to come to was the
15
deposition testimony on Project Sunday.
And I think there's
16
a bit of semantics going on.
17
corporate designee was not a lawyer.
18
that he conflated regulatory actions with litigation and
19
just regulations.
20
I made earlier, on 89 at 11 to 12, he says Project Sunday
21
was begun because of a host of global regulatory actions
22
across privacy and antitrust.
23
ask what he meant by some of those things, at page 95,
24
starting at 8, we asked:
25
regulatory matters was Project Sunday initiated in response
43
And, to be honest, the
But it does appear
And just to take you back to a point that
And when we followed up to
What investigations, litigation or
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to?
And he said we need to separate that out.
2
asking for regulatory matters as well.
3
to say that there are many countries or regions that have
4
regulatory issues related to antitrust and privacy.
5
You're
And then he goes on
I don't think Google's contending they anticipated
6
litigation from any of those other separate regulatory
7
concerns.
8
could read the 30(b)(6) testimony to say litigation was one
9
of the reasons, but regulatory concerns across the globe
10
were another consideration, especially on privacy issues.
11
That's not anticipation of litigation; that's a separate
12
regulatory concern, in addition to the commercial
13
considerations we think were at stake.
14
And then lastly --
15
THE COURT:
And I draw out that point to say that I think you
Well, he does say, you know, what
16
government investigations form the basis for Project Sunday.
17
I mean, that was the question that was asked, form the basis
18
for Project Sunday, and he said basically the same one that
19
we've talked about, the list which you'll find on page 2 of
20
the letter.
21
MR. TESLICKO:
I agree.
22
What I'm pointing out is that investigations --
23
government investigations he identified were a basis, but
24
not the sole basis.
25
explaining in 95 is that regulatory concerns, across a host
44
And I think what he's identifying or
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of countries that are not contained in that list, also were
2
bases for initiating Project Sunday.
3
And the last point I'll make on that is, in
4
particular with respect to Project Sunday, you've seen in
5
the briefing, Google's, in our view, walked away from the
6
representations that the testimony, given by their senior
7
vice president for many of their commercial lines of
8
business, where he said he -- Google identified him as an
9
initiator of the project originally in their letters.
He
10
said he never instructed an attorney to work on the project;
11
attorneys never instructed him.
12
Again, not dispositive, but the fact that the
13
senior vice president at Google is giving that testimony and
14
saying that attorneys were not involved in -- actively in
15
that project, or at least in his initiation of the project,
16
I think provides some basis to think that this project had
17
more than one purpose, and those are commercial, regulatory
18
or anything else other than anticipated litigation.
19
And I think, at a minimum, that provides a factual
20
basis for Your Honor to look at the documents, consider
21
whether it's clear on their face that they were created --
22
they would not have been created in substantially similar
23
form, irrespective of litigation, and if they would have,
24
order the production of those parts that don't reflect legal
25
opinions, litigation strategy or the like.
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2
And if Your Honor doesn't have any other
questions, I --
3
THE COURT:
4
Thank you very much.
5
good on this.
6
addressed -- and you can go ahead and have a seat.
7
you.
8
9
I think I understand the issues.
And, you know, the briefing was very
I did have a few questions I needed to get
Thank
You know, as I commented earlier, you know, there
are, I think, two separate issues in front of me.
One has
10
to do with the project documents, Remedy documents, whatever
11
you want to call them, the 17 that have been identified by
12
the defendant in their opposition, and the other document
13
now.
14
There's a lot more meat on the bones, so to speak,
15
on the project documents as far as the 30(b)(6) deposition.
16
The declaration only addresses those documents for the most
17
part, and so I think -- you know, I have a record in front
18
of me that, you know, honestly has surmised, may be wrong,
19
may be this, may be that, but I don't think I have enough
20
factual information in front of me to make the finding that
21
it isn't protected or that I would need to do an in-camera
22
review of those documents.
23
I think, read broadly and, you know, fairly, that
24
the 30(b)(6) deponent indicated that all five of these
25
projects, I guess, or at least the four in the second part
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of the Banksy projects were all done as a result of
2
government investigations and the concern of future
3
litigation anticipation.
4
You know, I am accepting Google's representation
5
that if we task somebody to go focus on something quickly
6
about making change A, but there's some other group out
7
there that's working on change A that got a much broader
8
base, and, you know, more involved in doing things like
9
that, that they're not holding that back because, you know,
10
of changes to products or platforms or whatever are a part
11
of an ongoing business investigation.
12
But it sounds to me in reading the record, that,
13
at various points in time, lawyers were involved, thoughts
14
were being made about how can we resolve certain things, and
15
people were tasked with investigating that, and those were
16
the specific projects.
17
And, you know, again these were projects that, at
18
least based on the information that's been presented to me,
19
were modest in nature and seemed to be one-offs, to some
20
extent.
21
45 hours, 50 hours or 10 hours on a project, that is not
22
indicative of something that is of a major undertaking by a
23
corporation like Google.
24
deposition testimony, of all the individuals involved,
25
counting up all their time, including the presentations.
And obviously if you spend, you know, 30 hours,
And that includes, as I read the
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And there were a lot of people that were at some of these
2
presentations.
3
So, you know, this is an issue that I think was
4
tied -- these projects themselves were tied to particular
5
issues having to do with trying to resolve, address some
6
concerns with ongoing investigations or remedies.
7
think that, you know, the assertion of the privilege on
8
those documents, given the record that I have of the 17 --
9
and, again, I'm only addressing the 17 that are in front of
So I do
10
me.
So I'm not, as Judge Castel said, making advisory
11
opinions as to any of the other documents.
12
different factual record for them, then I would have to deal
13
with them.
14
require them to be produced for in-camera review and
15
inspection.
16
that's sufficient for me to make them to do that.
17
know, I'll be honest with you, I think part of that is
18
having gone through this process before in some big cases.
19
Reading a document doesn't tell me the intent of
If there's a
But as to those 17 documents, I'm not going to
I don't think that a showing has been made
And, you
20
the document.
And it's a difficult way -- I mean, you know,
21
it doesn't -- they don't typically say I am producing this
22
document as a result of, you know, you're so-and-so and
23
directions and those kinds of things, although, it appears
24
that there's some instructions from people to do certain
25
things.
But I think under the circumstances, I'm not going
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to -- I do think I should look at Number 7, though.
I
2
think, you know, there's enough going around with Number 7
3
that it probably is appropriate for me to at least review
4
both the current redacted version and an unredacted version
5
of Document Number 7.
6
further briefing, argument or discussion on that.
7
at it.
8
be able to make a decision on that hopefully fairly
9
promptly.
I'll look at it, and I don't need any
I'll look
I have the list of the people involved, and so I'll
But get me that sometime by tomorrow, if you
10
could, and I'll look at it and get you a decision on
11
Document Number 7 early next week.
12
Okay.
Anything else on this case today?
13
MS. ELMER:
14
MR. TESLICKO:
15
THE COURT:
16
MR. REILLY:
17
You had mentioned some concerns about the sealing,
Thank you, Your Honor.
Thank you.
Mr. Reilly.
Yes, Your Honor.
Just quickly.
18
and we would -- I don't know what the Court had in mind.
19
For example, if you wanted to identify particular exhibits
20
you were thinking of unsealing or that could be resubmitted
21
in redacted form.
22
many we could work out in advance and whether we would
23
request further briefing.
24
25
We could then address those and see how
THE COURT:
Yeah.
I am inclined, just given the
nature of this case, before denying a motion to seal
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1
outright, probably requesting further briefing on that issue
2
to get the parties to look at it a little bit closer and do
3
things.
4
motions, but also --
But, I mean, I was focusing on the substantive
5
MR. REILLY:
6
THE COURT:
Understood.
-- in doing that was looking at some
7
of the information that had been redacted in that version,
8
and I have some concerns of whether it's going to meet the
9
appropriate standard.
10
But I think, under the circumstances, it's
11
probably better for me to give you a warning and one more
12
opportunity to address it before I just say the clerk is
13
directed to unseal something.
14
MR. REILLY:
15
THE COURT:
16
MS. WOOD:
17
THE COURT:
18
Okay.
Thank you, Your Honor.
Thank you.
Anything else?
Thank you, Your Honor.
Okay.
Thank you.
Court will be
adjourned.
19
(Proceedings adjourned at 3:07 p.m.)
20
----------------------------------
21
I certify that the foregoing is a true and accurate
22
transcription of my stenographic notes.
23
____________________________
24
Stephanie M. Austin, RPR, CRR
25
50
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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