Page 1 PageID#
EXHIBIT 18Page 2 PageID#
In the Matter Of:
In Re - Google Antitrust Litigation
August 11, 2021Page 3 PageID#
- 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.
www.LexitasLegal.com/Premier
Lexitas
?
888-267-1200· · ·
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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.
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1fPage 5 PageID#
- 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
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
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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
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1fPage 7 PageID#
- 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
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1fPage 8 PageID#
- 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
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1fPage 9 PageID#
- 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
www.LexitasLegal.com/Premier
testified that
Lexitas
888-267-1200· · ·
YVer1fPage 10 PageID#
- 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
www.LexitasLegal.com/Premier
, we've placed in the chat
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 1 of 10 PageID# 2971
EXHIBIT 18
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 2 of 10 PageID# 2972
In the Matter Of:
In Re - Google Antitrust Litigation
August 11, 2021
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 3 of 10 PageID# 2973
- August 11, 2021
195
·1
· · A. Can I talk with counsel?
·2
· · Q. Sure.
·3
· · · ·MR. NAKAMURA:· Let's go off the record.
·4
· · · ·THE VIDEOGRAPHER:· Off the record at
·5
1:46 p.m.
·6
· · · ·(Off the record, 1:46 p.m. to 1:52 p.m.)
·7
· · · ·THE VIDEOGRAPHER:· Back on the record at
·8
1:52 p.m.
·9
BY MR. NAKAMURA:
10
· · Q. So I understand that you have consulted
11
with your counsel.· Is that correct,
12
· · A. Yes.
13
· · Q. And so I ask again, what is the Stonehenge
14
program?
15
· · A. Yeah.· The Stonehenge program is -- it's
16
an assessment of the implications of antitrust
17
inquiries that are underway.
18
· · Q. And with which lawyers did you discuss the
19
Stonehenge program?
20
· · A. With Ted Janis.· I'm sorry.· Ted Lazarus.
21
I'm sorry.
22
· · Q. Any other lawyers?
23
· · A. Yes, there were other lawyers involved in
24
there as well, but they're not coming to mind.
www.LexitasLegal.com/Premier
Lexitas
?
888-267-1200· · ·
YVer1f
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 4 of 10 PageID# 2974
- August 11, 2021
196
·1
· · Q. And when did you have this discussion with
·2
Mr. Lazarus regarding the Stonehenge program?
·3
· · A. I believe this was last summer, and it's
·4
continued through the present.
·5
· · Q. So you initially had this discussion with
·6
Mr. Lazarus regarding the Stonehenge program in
·7
summer 2020.· Is that correct?
·8
· · A. That's my best guess.· It may have been
·9
earlier, but that's my recollection of when the
10
work for Stonehenge was done.
11
· · · ·MR. NAKAMURA:· Gordon, could you load in
12
the chat Document 46, please.
13
· · Q. So same instruction,
14
could download that document and let me know when
15
you've reviewed it.
16
· · · ·MR. NAKAMURA:· In the meantime, I'll ask
17
the court reporter to mark this document as
18
.· If you
Exhibit 7.· This is a document produced
19
by Google with the Bates number beginning
20
GOOG-DOJ-12766025, ending in Bates Number -6028.
21
· · · ·(Exhibit 7 marked for identification)
22
· · Q. And let me know when you're done reviewing
23
this document.
24
· · A. Okay.
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 5 of 10 PageID# 2975
- August 11, 2021
197
·1
· · Q. So let's turn to the second page of the
·2
PDF ending in Bates Number 026 to the email on
·3
February 19th, 2020, from
·4
see that?
·5
· · A. Yup.
·6
· · Q. What was the Single Click program?
·7
· · A. That was an assessment of implications and
·8
options that -- in response to potential
·9
regulatory inquiries.
10
· · Q. And do you see the line that says,
11
"Stonehenge will include," dot, dot, dot?· Do you
12
see that?
13
· · A. Yes.
14
· · Q. So is 1door part of the Stonehenge
15
program?
16
· · A. No.
17
· ·
.· Do you
18
19
20
21
22
23
24
· · Q. So that is an option under consideration
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 6 of 10 PageID# 2976
- August 11, 2021
198
·1
currently with respect to Project Stonehenge but
·2
has not yet been finally decided.· Is that
·3
correct?
·4
· · · ·MR. ENSIGN:· Objection.
·5
· · · ·I'd like to speak to the witness to
·6
determine whether it's possible to respond to
·7
these questions without divulging attorney-client
·8
communications.
·9
· · · ·MR. NAKAMURA:· Okay.· Let's take a break.
10
· · · ·THE VIDEOGRAPHER:· Off the record at
11
1:57 p.m.
12
· · · ·(Off the record, 1:57 p.m. to 2:05 p.m.)
13
· · · ·THE VIDEOGRAPHER:· Back on the record at
14
2:05 p.m.
15
BY MR. NAKAMURA:
16
· · Q.
17
confer with your counsel?
18
· · A. I have.
19
· · Q.
, have you had a chance to
20
21
22
23
24
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 7 of 10 PageID# 2977
- August 11, 2021
199
·1
· · · ·MR. ENSIGN:· Objection.
·2
· · · ·I'm going to instruct the witness not to
·3
answer the question.
·4
· · · ·Further, the document or the exhibit that
·5
is currently in front of the witness contains
·6
unredacted privileged communications and
·7
privileged work product with respect to Project
·8
Stonehenge and Single Click.
·9
· · · ·We are working on redactions and will
10
provide a redacted version of this exhibit to the
11
department shortly.
12
· · · ·MR. NAKAMURA:· So I want to understand
13
this, Mr. Ensign.· On page 1 of this document,
14
ending Bates Number 025, Google has made a
15
redaction.· Is that correct?
16
· · · ·MR. ENSIGN:· That is correct.
17
· · · ·MR. NAKAMURA:· And so your claim is,
18
despite having produced this to us in redacted
19
form, you have failed to make other redactions
20
that you believe are properly made pursuant to
21
attorney-client privilege.· Is that correct?
22
· · · ·MR. ENSIGN:· You are correct.
23
· · · ·MR. NAKAMURA:· And I would like to know
24
what the lawyer -- who the lawyers are who are
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 9
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 8 of 10 PageID# 2978
- August 11, 2021
200
·1
involved in Project Stonehenge with respect to
·2
this particular communication such that it is
·3
proper to claw it back.
·4
· · · ·MR. ENSIGN:·
·5
the name of the attorney.
·6
· · A. Ted Lazarus.
·7
· · Q. And,
·8
that you spoke to Mr. Lazarus in the summer of
·9
2020, yet this document predates that.
10
· · A. Yes.· So I believe my dates were probably
11
off.
12
· · Q. And this is a question for your counsel.
13
· · · ·MR. NAKAMURA:· I am confused because at
14
the bottom of page 2 at the section we were
15
discussing, there was only business information
16
there, no legal information that was conveyed.
17
· · · ·Mr. Ensign, I'd like to know your basis
18
for clawing back what appears to entirely lack
19
, you can provide
, you testified, however,
's email, any legal advice, and only
20
business advice.
21
· · · ·MR. ENSIGN:· Work product.· Project Single
22
Click and Stonehenge were prepared in response to
23
the regulatory process and the antitrust matters.
24
· · · ·MR. NAKAMURA:· And is it your position
www.LexitasLegal.com/Premier
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 10
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 9 of 10 PageID# 2979
- August 11, 2021
201
·1
today that any and all information relating to
·2
Project Stonehenge is properly protected by the
·3
work product privilege?
·4
· · · ·MR. ENSIGN:· I can't take a position with
·5
respect to all information, but with respect to
·6
the information contained in this document, yes.
·7
· · · ·MR. NAKAMURA:· And so my last question on
·8
this is, your justification for clawing this
·9
particular email back and other sections of this
10
document is that the legal advice came from
11
Mr. Ted Lazarus.· Is that correct?
12
· · · ·MR. ENSIGN:· It is work product developed
13
upon legal advice from Ted Lazarus.
14
· · · ·MR. NAKAMURA:· Okay.· We will sequester
15
this document and await your production.
16
· · · ·I'm sorry.· Mr. Bitton, did you have
17
something?
18
· · · ·MR. BITTON:· Yeah.· I think there may well
19
have been and I think
20
that's the name he recalled but that there were
21
other lawyers involved as well.
22
· · · ·MR. NAKAMURA:· And how long until we get a
23
reproduction of this document?
24
· · · ·MR. ENSIGN:· We are working on it now and
www.LexitasLegal.com/Premier
testified that
Lexitas
888-267-1200· · ·
YVer1f
PDF Page 11
Case 1:23-cv-00108-LMB-JFA Document 284-19 Filed 07/17/23 Page 10 of 10 PageID# 2980
- August 11, 2021
202
·1
we anticipate we'll produce it today and as
·2
quickly today as possible.
·3
· · · ·MR. NAKAMURA:· And I would request that
·4
you provide me with a redacted PDF copy to the
·5
extent I'm able to question the witness on this.
·6
· · · ·MR. ENSIGN:· Understood.
·7
· · · ·MR. NAKAMURA:· Thank you.
·8
BY MR. NAKAMURA:
·9
· · Q.
10
11
12
13
14
15
16
17
18
19
20
21
· · Q. Thank you.
22
· · · ·MR. NAKAMURA:· Gordon, could you please
23
put in the chat Tab 44, please.
24
· · Q. And
www.LexitasLegal.com/Premier
, we've placed in the chat
Lexitas
888-267-1200· · ·
YVer1f