MOTION Clarify Scheduling Order re [94] Order Rule 16(b) Scheduling Order, by Commonwealth of Virginia, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Illinois, State of Michigan, State of Minnesota, State of Nebraska, State of New Hampshire, State of New Jersey, State of New York, State of North Carolina, State of Rhode Island, State of Tennessee, State of Washington, State of West Virginia, United States of America. (Attachments: # (1) Exhibit A - Hearing Transcript Excerpt, # (2) Proposed Order)(Teitelbaum, Aaron)
Page 1 PageID#
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs,
:
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-Friday, March 31,
The above-entitled hearing was heard before the
Honorable John F. Anderson, United States Magistrate Judge.
This proceeding commenced at 10:35 a.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 WOOD, ESQUIRE
MICHAEL WOLIN, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. (202) 894-
TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia (804) 786-
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 2 PageID#
address that appropriately?
documents or data relied upon by an expert witness in his or
her report) produced by any party pursuant to the disclosure
obligations set forth in the scheduling order relating to
expert discovery or in any other agreement or order."
MS. WOOD:
"Documents or data (including
I can tell you, Your Honor, that as I
understand -- if by B they mean to suggest that their
experts are not going to rely on material that was not
produced in fact discovery, then I agree, that takes care of
it.
about this.
but they can clarify that.
In our meet-and-confer, we've had multiple sessions
That is not my understanding of their position,
But if by B they mean they do not intend for their
experts to rely on material outside the fact discovery
cutoff, then I think our only agreement is about
commercially-available data.
The one other thing I should add just for
completeness, but I think this could be, you know, taken up
at a different date, is there may come a time, if there is a
liability finding here, that the Court would need to
consider appropriate equitable remedies.
We acknowledge that the scope of material that
might need to be reviewed for equitable remedy purposes
might need to reflect more current data.
taking the position that they're precluded forever from
And so we're not
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 3 PageID#
producing new material in that regard.
honestly more for their benefit and for the Court's benefit.
We didn't want the Court -- we wanted the Court to
understand that we were sympathetic -- would be sympathetic
to that concern.
That was really
If they don't want that provision, I think we can
deal with that when and if that occurs, but I think we are
most concerned that experts not be allowed to rely on
material outside the fact discovery cutoff.
THE COURT:
MS. WOOD:
THE COURT:
Okay.
Thank you, Your Honor.
Mr. Ewalt, let me have you address --
and I think it's a valid concern.
I mean, you know, in our
typical cases, the discovery cutoff date is both for fact
and expert discovery, so we don't have to deal with this
issue very often.
parameters upon which this case will end up being tried has
some appeal to me.
some point.
set -- we've set a date for when all the fact discovery
needs to be done.
and something has to be done after that, that will, you
know, have to get swept into that.
someone the unfettered ability to continue to go out and
gather new facts and to do further fact-finding efforts or
But the idea that fact discovery sets the
I mean, there has to be an end to it at
And, you know, if fact discovery has been
Obviously if there's a motion to compel,
But, you know, giving
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 276-1 Filed 06/30/23 Page 1 of 3 PageID# 2659
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs,
:
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-108
Friday, March 31, 2023
8
9
The above-entitled hearing was heard before the
Honorable John F. Anderson, United States Magistrate Judge.
This proceeding commenced at 10:35 a.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
14
15
16
17
JULIA WOOD, ESQUIRE
MICHAEL WOLIN, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. 20530
(202) 894-4266
18
19
20
21
TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7704
22
23
24
25
1
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 276-1 Filed 06/30/23 Page 2 of 3 PageID# 2660
1
address that appropriately?
2
documents or data relied upon by an expert witness in his or
3
her report) produced by any party pursuant to the disclosure
4
obligations set forth in the scheduling order relating to
5
expert discovery or in any other agreement or order."
6
MS. WOOD:
"Documents or data (including
I can tell you, Your Honor, that as I
7
understand -- if by B they mean to suggest that their
8
experts are not going to rely on material that was not
9
produced in fact discovery, then I agree, that takes care of
10
it.
11
about this.
12
but they can clarify that.
13
In our meet-and-confer, we've had multiple sessions
That is not my understanding of their position,
But if by B they mean they do not intend for their
14
experts to rely on material outside the fact discovery
15
cutoff, then I think our only agreement is about
16
commercially-available data.
17
The one other thing I should add just for
18
completeness, but I think this could be, you know, taken up
19
at a different date, is there may come a time, if there is a
20
liability finding here, that the Court would need to
21
consider appropriate equitable remedies.
22
We acknowledge that the scope of material that
23
might need to be reviewed for equitable remedy purposes
24
might need to reflect more current data.
25
taking the position that they're precluded forever from
And so we're not
19
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 276-1 Filed 06/30/23 Page 3 of 3 PageID# 2661
1
producing new material in that regard.
2
honestly more for their benefit and for the Court's benefit.
3
We didn't want the Court -- we wanted the Court to
4
understand that we were sympathetic -- would be sympathetic
5
to that concern.
6
That was really
If they don't want that provision, I think we can
7
deal with that when and if that occurs, but I think we are
8
most concerned that experts not be allowed to rely on
9
material outside the fact discovery cutoff.
10
THE COURT:
11
MS. WOOD:
12
THE COURT:
Okay.
Thank you, Your Honor.
Mr. Ewalt, let me have you address --
13
and I think it's a valid concern.
I mean, you know, in our
14
typical cases, the discovery cutoff date is both for fact
15
and expert discovery, so we don't have to deal with this
16
issue very often.
17
parameters upon which this case will end up being tried has
18
some appeal to me.
19
some point.
20
set -- we've set a date for when all the fact discovery
21
needs to be done.
22
and something has to be done after that, that will, you
23
know, have to get swept into that.
24
someone the unfettered ability to continue to go out and
25
gather new facts and to do further fact-finding efforts or
20
But the idea that fact discovery sets the
I mean, there has to be an end to it at
And, you know, if fact discovery has been
Obviously if there's a motion to compel,
But, you know, giving
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
Back to 
