United States et al v. Google LLC Document 284: Response, Attachment 19

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 18
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In the Matter Of:
In Re - Google Antitrust Litigation
August 11, 2021
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- August 11,
·
· · A. Can I talk with counsel?
·
· · Q. Sure.
·
· · · ·MR. NAKAMURA:· Let's go off the record.
·
· · · ·THE VIDEOGRAPHER:· Off the record at
·
1:46 p.m.
·
· · · ·(Off the record, 1:46 p.m. to 1:52 p.m.)
·
· · · ·THE VIDEOGRAPHER:· Back on the record at
·
1:52 p.m.
·
BY MR. NAKAMURA:

· · Q. So I understand that you have consulted

with your counsel.· Is that correct,

· · A. Yes.

· · Q. And so I ask again, what is the Stonehenge

program?

· · A. Yeah.· The Stonehenge program is -- it's

an assessment of the implications of antitrust

inquiries that are underway.

· · Q. And with which lawyers did you discuss the

Stonehenge program?

· · A. With Ted Janis.· I'm sorry.· Ted Lazarus.

I'm sorry.

· · Q. Any other lawyers?

· · A. Yes, there were other lawyers involved in

there as well, but they're not coming to mind.
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- August 11,
·
· · Q. And when did you have this discussion with
·
Mr. Lazarus regarding the Stonehenge program?
·
· · A. I believe this was last summer, and it's
·
continued through the present.
·
· · Q. So you initially had this discussion with
·
Mr. Lazarus regarding the Stonehenge program in
·
summer 2020.· Is that correct?
·
· · A. That's my best guess.· It may have been
·
earlier, but that's my recollection of when the

work for Stonehenge was done.

· · · ·MR. NAKAMURA:· Gordon, could you load in

the chat Document 46, please.

· · Q. So same instruction,

could download that document and let me know when

you've reviewed it.

· · · ·MR. NAKAMURA:· In the meantime, I'll ask

the court reporter to mark this document as

.· If you
Exhibit 7.· This is a document produced

by Google with the Bates number beginning

GOOG-DOJ-12766025, ending in Bates Number -6028.

· · · ·(Exhibit 7 marked for identification)

· · Q. And let me know when you're done reviewing

this document.

· · A. Okay.
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- August 11,
·
· · Q. So let's turn to the second page of the
·
PDF ending in Bates Number 026 to the email on
·
February 19th, 2020, from
·
see that?
·
· · A. Yup.
·
· · Q. What was the Single Click program?
·
· · A. That was an assessment of implications and
·
options that -- in response to potential
·
regulatory inquiries.

· · Q. And do you see the line that says,

"Stonehenge will include," dot, dot, dot?· Do you

see that?

· · A. Yes.

· · Q. So is 1door part of the Stonehenge

program?

· · A. No.

· ·
.· Do you

· · Q. So that is an option under consideration
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- August 11,
·
currently with respect to Project Stonehenge but
·
has not yet been finally decided.· Is that
·
correct?
·
· · · ·MR. ENSIGN:· Objection.
·
· · · ·I'd like to speak to the witness to
·
determine whether it's possible to respond to
·
these questions without divulging attorney-client
·
communications.
·
· · · ·MR. NAKAMURA:· Okay.· Let's take a break.

· · · ·THE VIDEOGRAPHER:· Off the record at

1:57 p.m.

· · · ·(Off the record, 1:57 p.m. to 2:05 p.m.)

· · · ·THE VIDEOGRAPHER:· Back on the record at

2:05 p.m.

BY MR. NAKAMURA:

· · Q.

confer with your counsel?

· · A. I have.

· · Q.
, have you had a chance to

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- August 11,
·
· · · ·MR. ENSIGN:· Objection.
·
· · · ·I'm going to instruct the witness not to
·
answer the question.
·
· · · ·Further, the document or the exhibit that
·
is currently in front of the witness contains
·
unredacted privileged communications and
·
privileged work product with respect to Project
·
Stonehenge and Single Click.
·
· · · ·We are working on redactions and will

provide a redacted version of this exhibit to the

department shortly.

· · · ·MR. NAKAMURA:· So I want to understand

this, Mr. Ensign.· On page 1 of this document,

ending Bates Number 025, Google has made a

redaction.· Is that correct?

· · · ·MR. ENSIGN:· That is correct.

· · · ·MR. NAKAMURA:· And so your claim is,

despite having produced this to us in redacted

form, you have failed to make other redactions

that you believe are properly made pursuant to

attorney-client privilege.· Is that correct?

· · · ·MR. ENSIGN:· You are correct.

· · · ·MR. NAKAMURA:· And I would like to know

what the lawyer -- who the lawyers are who are
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- August 11,
·
involved in Project Stonehenge with respect to
·
this particular communication such that it is
·
proper to claw it back.
·
· · · ·MR. ENSIGN:·
·
the name of the attorney.
·
· · A. Ted Lazarus.
·
· · Q. And,
·
that you spoke to Mr. Lazarus in the summer of
·
2020, yet this document predates that.

· · A. Yes.· So I believe my dates were probably

off.

· · Q. And this is a question for your counsel.

· · · ·MR. NAKAMURA:· I am confused because at

the bottom of page 2 at the section we were

discussing, there was only business information

there, no legal information that was conveyed.

· · · ·Mr. Ensign, I'd like to know your basis

for clawing back what appears to entirely lack

, you can provide
, you testified, however,
's email, any legal advice, and only

business advice.

· · · ·MR. ENSIGN:· Work product.· Project Single

Click and Stonehenge were prepared in response to

the regulatory process and the antitrust matters.

· · · ·MR. NAKAMURA:· And is it your position
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- August 11,
·
today that any and all information relating to
·
Project Stonehenge is properly protected by the
·
work product privilege?
·
· · · ·MR. ENSIGN:· I can't take a position with
·
respect to all information, but with respect to
·
the information contained in this document, yes.
·
· · · ·MR. NAKAMURA:· And so my last question on
·
this is, your justification for clawing this
·
particular email back and other sections of this

document is that the legal advice came from

Mr. Ted Lazarus.· Is that correct?

· · · ·MR. ENSIGN:· It is work product developed

upon legal advice from Ted Lazarus.

· · · ·MR. NAKAMURA:· Okay.· We will sequester

this document and await your production.

· · · ·I'm sorry.· Mr. Bitton, did you have

something?

· · · ·MR. BITTON:· Yeah.· I think there may well

have been and I think

that's the name he recalled but that there were

other lawyers involved as well.

· · · ·MR. NAKAMURA:· And how long until we get a

reproduction of this document?

· · · ·MR. ENSIGN:· We are working on it now and
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- August 11,
·
we anticipate we'll produce it today and as
·
quickly today as possible.
·
· · · ·MR. NAKAMURA:· And I would request that
·
you provide me with a redacted PDF copy to the
·
extent I'm able to question the witness on this.
·
· · · ·MR. ENSIGN:· Understood.
·
· · · ·MR. NAKAMURA:· Thank you.
·
BY MR. NAKAMURA:
·
· · Q.

· · Q. Thank you.

· · · ·MR. NAKAMURA:· Gordon, could you please

put in the chat Tab 44, please.

· · Q. And
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