United States et al v. Google LLC Document 284: Response, Attachment 16

Virginia Eastern District Court
Case No. 1:23-cv-00108-LMB-JFA
Filed July 17, 2023

Response to [280] Order,, filed by Google LLC. (Attachments: # (1) Exhibit 1 MTC Appendix, # (2) Exhibit 2 MTC Brief, # (3) Exhibit 3 MTC EX 1, # (4) Exhibit 4 MTC EX 2, # (5) Exhibit 5 MTC EX 3, # (6) Exhibit 6 MTC EX 4, # (7) Exhibit 7 MTC EX 6, # (8) Exhibit 8 MTC EX 7, # (9) Exhibit 9 MTC EX 8, # (10) Exhibit 10 MTC EX 9, # (11) Exhibit 11 MTC EX 10, # (12) Exhibit 12 MTC EX 11, # (13) Exhibit 13 MTC EX 12, # (14) Exhibit 14 MTC EX 13, # (15) Exhibit 15 MTC EX 14, # (16) Exhibit 16 MTC EX 15, # (17) Exhibit 17 MTC EX 16, # (18) Exhibit 18 MTC EX 17, # (19) Exhibit 19 MTC EX 18, # (20) Exhibit 20 MTC EX 19, # (21) Exhibit 21 MTC EX 21, # (22) Exhibit 22 MTC EX 22, # (23) Exhibit 23 MTC EX 25, # (24) Exhibit 24 MTC EX 27, # (25) Exhibit 25 MTC EX 28, # (26) Exhibit 26 MTC EX 29, # (27) Exhibit 27 MTC EX 30, # (28) Exhibit 28 MTC EX 31, # (29) Exhibit 29 MTC Reply Appendix, # (30) Exhibit 30 Opposition EX A, # (31) Exhibit 31 Opposition EX B, # (32) Exhibit 32 Opposition EX C, # (33) Exhibit 33 Reply EX 1, # (34) Exhibit 34 Reply EX 2, # (35) Exhibit 35 Reply EX 5, # (36) Exhibit 36 Reply EX 6, # (37) Exhibit 37 Reply)(Reilly, Craig)

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EXHIBIT 15

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Liberty Square Building
450 5th Street, N.W.
Washington, DC
October 18, Via Email (julie.elmer@freshfields.com)
Julie Elmer, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW, 10th Floor
Washington, DC Re:
Civil Investigative Demand No.
Dear Julie:
I write to respond to your October 4, 2021, letter regarding Civil Investigative Demand
No. 30769 (“the CID”) issued to Alphabet, Inc. (“Google”) for oral testimony. After reviewing
your letter of October 4 in conjunction with the sworn testimony of Google’s employees,
deficiencies remain in Google’s overall response to the CID.
The CID, issued on August 23, 2021, specified September 17, 2021, as the original date
on which a Google witness was to sit for the 30(b)(6) deposition. In the interests of cooperation
and efficiency, the Division permitted Google to first provide written responses to the CID,
which we received on September 14, 2021. I wrote to you on September 17, requesting a date or
range of dates on which a Google 30(b)(6) witness would sit for the required deposition, as
Google’s response was incomplete. You supplemented your response via letter on October 4. To
date, we have not received any potential dates for the deposition.
To avoid any doubt, this process has not limited the scope of Google’s obligation under
the CID. It has, however, highlighted the contradictions in materials provided to the Division.
For example, in Google’s October 4 letter, Google represented that Chief Business Officer
Philipp Schindler was the sole “employee who initiated” Google’s “Project Monday.” 1 The letter
further represented that Mr. Schindler was one of only three “[k]ey decision makers” on the
Project.2 At his October 6 deposition, when asked what Project Monday was, Mr. Schindler
testified “I don’t know.”3 Mr. Schindler went on to testify that he did not know who initiated
Project Monday, or any similar project, even after being shown your October 4 letter.
Elmer Ltr., Oct. 4, 2021 at 4.
Elmer Ltr., Oct. 4, 2021 at 4.
Schindler Dep. 244:12-13.
Schindler Dep. 245:3–20, 247:6–250:15.
1

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As explained in my September 17, 2021, letter, Google’s objections to the provision of
oral testimony are without merit.5 Google’s invocations of attorney-client and work product
privilege as to specific specifications and topics lack substantive support or valid legal
justification.6 Your October 4, 2021, letter does not remedy these deficiencies.
The Division continues to be willing to negotiate reasonable modifications and deferrals
to the CID. To that end, the Division is willing to consider limiting questions on Projects
Garamond and Metta. But the requests for modification and deferral must be reasonable and, at
this juncture, there exists no reasonable path to avoiding sworn deposition testimony pursuant to
the CID.
To move forward, we make two requests. First, the Division requests that you identify
each document withheld on the basis of privilege for each of the projects identified in the CID
schedule. Second, Google should provide a date or range of dates upon which the CID deposition
will take place. We ask that Google complete both no later than October 28. If Google refuses to
make a witness available to testify, we ask that you confirm so in writing by that deadline.
As always, please contact me if you have any questions. We look forward to your
response.
Sincerely,
/s/
Ryan Karr
Trial Attorney
Antitrust Division
U.S. Department of Justice

Karr Sept. 17 Ltr. at 1-3.
Karr Sept. 17 Ltr. at 2-3.
2

PDF Page 1	PlainSite Cover Page

PDF Page 2	Case 1:23-cv-00108-LMB-JFA Document 284-16 Filed 07/17/23 Page 1 of 3 PageID# 2930 EXHIBIT 15

PDF Page 3	Case 1:23-cv-00108-LMB-JFA Document 284-16 Filed 07/17/23 Page 2 of 3 PageID# 2931 Liberty Square Building 450 5th Street, N.W. Washington, DC 20001 October 18, 2021 Via Email (julie.elmer@freshfields.com) Julie Elmer, Esq. Freshfields Bruckhaus Deringer LLP 700 13th Street, NW, 10th Floor Washington, DC 20005 Re: Civil Investigative Demand No. 30769 Dear Julie: I write to respond to your October 4, 2021, letter regarding Civil Investigative Demand No. 30769 (“the CID”) issued to Alphabet, Inc. (“Google”) for oral testimony. After reviewing your letter of October 4 in conjunction with the sworn testimony of Google’s employees, deficiencies remain in Google’s overall response to the CID. The CID, issued on August 23, 2021, specified September 17, 2021, as the original date on which a Google witness was to sit for the 30(b)(6) deposition. In the interests of cooperation and efficiency, the Division permitted Google to first provide written responses to the CID, which we received on September 14, 2021. I wrote to you on September 17, requesting a date or range of dates on which a Google 30(b)(6) witness would sit for the required deposition, as Google’s response was incomplete. You supplemented your response via letter on October 4. To date, we have not received any potential dates for the deposition. To avoid any doubt, this process has not limited the scope of Google’s obligation under the CID. It has, however, highlighted the contradictions in materials provided to the Division. For example, in Google’s October 4 letter, Google represented that Chief Business Officer Philipp Schindler was the sole “employee who initiated” Google’s “Project Monday.” 1 The letter further represented that Mr. Schindler was one of only three “[k]ey decision makers” on the Project.2 At his October 6 deposition, when asked what Project Monday was, Mr. Schindler testified “I don’t know.”3 Mr. Schindler went on to testify that he did not know who initiated Project Monday, or any similar project, even after being shown your October 4 letter. 4 1 Elmer Ltr., Oct. 4, 2021 at 4. Elmer Ltr., Oct. 4, 2021 at 4. 3 Schindler Dep. 244:12-13. 4 Schindler Dep. 245:3–20, 247:6–250:15. 2 1

PDF Page 4	Case 1:23-cv-00108-LMB-JFA Document 284-16 Filed 07/17/23 Page 3 of 3 PageID# 2932 As explained in my September 17, 2021, letter, Google’s objections to the provision of oral testimony are without merit.5 Google’s invocations of attorney-client and work product privilege as to specific specifications and topics lack substantive support or valid legal justification.6 Your October 4, 2021, letter does not remedy these deficiencies. The Division continues to be willing to negotiate reasonable modifications and deferrals to the CID. To that end, the Division is willing to consider limiting questions on Projects Garamond and Metta. But the requests for modification and deferral must be reasonable and, at this juncture, there exists no reasonable path to avoiding sworn deposition testimony pursuant to the CID. To move forward, we make two requests. First, the Division requests that you identify each document withheld on the basis of privilege for each of the projects identified in the CID schedule. Second, Google should provide a date or range of dates upon which the CID deposition will take place. We ask that Google complete both no later than October 28. If Google refuses to make a witness available to testify, we ask that you confirm so in writing by that deadline. As always, please contact me if you have any questions. We look forward to your response. Sincerely, /s/ Ryan Karr Trial Attorney Antitrust Division U.S. Department of Justice 5 6 Karr Sept. 17 Ltr. at 1-3. Karr Sept. 17 Ltr. at 2-3. 2


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