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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
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No. 1:23-cv-00108-LMB-JFA
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR IN
CAMERA INSPECTION AND TO COMPEL PRODUCTION OF
DOCUMENTS WRONGFULLY WITHHELD AS PRIVILEGED
In light of evidence calling into question the breadth of Google’s privilege assertions,
Plaintiffs request in camera review of twenty-one (21) documents that they believe Google has
improperly withheld or redacted on the basis of the attorney-client privilege or other
protections. 1 These documents are identified in the Appendix attached to Plaintiffs’ motion.
Plaintiffs respectfully request that the Court instruct Google to provide—directly to the Court—
unredacted copies of these 21 documents to facilitate in camera review. Plaintiffs believe these
documents contain information highly relevant to Plaintiffs’ claims and/or Google’s anticipated
defenses. They were selected because they are representative of fundamental areas of
disagreement between Plaintiffs and Google concerning the proper assertion of privileges. 2 The
parties have met and conferred about this issue and were unable to reach resolution.
For ease of reference, Plaintiffs will refer to the attorney-client privilege and work product
protection or other privileges collectively as “privileges.”
Plaintiffs believe the Court’s ruling on this subset of representative documents will facilitate
more productive meet and confer discussions regarding other outstanding privilege disputes. To
the extent those discussions are not fruitful, and if warranted, Plaintiffs may return to the Court for
any additional necessary relief. Page 2 Case
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BACKGROUND
During the multi-year investigation of Google’s conduct that preceded the filing of this
lawsuit, the United States became concerned about Google’s invocation of the attorney-client
and other privileges to shield documents and information from discovery. This concern resulted
in extensive discussion and correspondence between the parties about Google’s privilege
assertions. 3 Google withheld from production—in whole or in part—hundreds of thousands of
responsive documents purportedly on the basis of privileges. Google also engaged in a series of
belated, and sometimes inconsistent, clawbacks of purportedly privileged documents, at times on
the eve, or in the middle, of depositions. After the United States confronted Google’s witnesses
with certain documents at investigative depositions, Google clawed back and reproduced the
documents a second or third time with additional redactions.
Two examples of Google’s prior privilege assertions during the pre-complaint
investigation are indicative of the problem. First, Google initially substantially redacted or
withheld completely presentation materials that Google’s business decisionmakers considered at
meetings concerning the digital advertising business, including documents from Google’s
Business Council (“BC”) and Ads and Commerce (“ACM”) groups. 4 Only after the United
States challenged this patently overbroad application of the privilege did Google produce the
relevant documents three months later. Second, Google initially withheld nearly 700 emails on
the basis that its President of Global Partnerships and Corporate Development (who authored or
was copied on the emails) had previously practiced as an attorney at the company. As his title
suggests, however, this individual was serving exclusively in a business capacity during the time
The outstanding privilege issues as of the time Plaintiffs filed suit are summarized in a letter
from B. Nakamura to J. Elmer dated Jan. 18, 2023, and the letters referenced therein. (Ex. 1.)
Ex. 2, Ltr. from J. Hogan, Apr. 6, 2021. Page 3 Case
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that the relevant documents were prepared. Indeed, the individual was not licensed to practice
law in any state at the time the documents were written. At his deposition, the business executive
confirmed that he had not provided legal advice at Google for nearly a decade. 5 Once again, only
after the United States objected to the withholding of these clearly unprivileged documents did
Google produce some of them.
Given this prior troubling experience with Google’s invocation of the privilege to shield
unprivileged documents from discovery during the pre-complaint investigation, when discovery
commenced in this action on March 27, 2023, Plaintiffs served Google with written discovery
requests, including Request for Production (“RFP”) No. 1 which seeks:
All documents already produced by Google in response to Civil Investigative
Demand Nos. 30092, 30120, 30121, and 30471, including all documents
responsive to those Civil Investigative Demands and all documents wrongfully
withheld as privileged or on the basis of work product protection as set forth in
the January 18, 2023 letter from Brent K. Nakamura to Julie Elmer, the June 6,
2022, letter from David Teslicko to Julie Elmer, and the letters referenced
therein.
RFP No. 2 seeks:
All documents relating to any plans of, interest in, or efforts undertaken by the
Company or any other person for any acquisition, divestiture, joint venture,
alliance, or merger of any kind involving the sale of any Relevant Product or
Ex. 3, Dep. of
at 74:6-10 (“So from 1997 through 2011, I was a lawyer”); 83:1317 (“Q. Is there a time at which you stopped working in Google’s legal department? A. There is.
In late 2011, early 2012, I took on a business role managing our corporate development team.”);
245:3-4 (“I take the position that I haven’t practiced law since 2011.”). Page 4 Case
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Service. For the avoidance of doubt, this includes all documents relating to
Project Sunday, Project Monday, Project Stonehenge, Project SingleClick,
Project Quantize, and communications with third-party Lazard Frères & Co.
LLC. Following the parties’ April 17, 2023, meet and confer to discuss these RFPs, on April
26, 2023, Google served its responses. As to RFP No. 1, Google declined to produce any new
documents and indicated it “stands on the claims of privilege and work product protection it has
asserted with respect to certain documents within the scope of the enumerated investigative
requests.” As to RFP No. 2, “Google stands on the claims of privilege and/or work product
protection it has asserted with respect to documents relating to Project Sunday, Project Monday,
Project Stonehenge, [and] Project SingleClick.” Google’s decision to persist with its prior claims
of privilege for RFP Nos. 1 and 2 renders the parties’ privilege disputes ripe, as Plaintiffs made
clear during the parties’ meet and confers on May 10 and May 12, 2023.
For purposes of this motion for in camera inspection and to compel production, Plaintiffs
have selected exemplars of three categories of documents for which Google has failed to
substantiate the scope of its privilege claims: (1) documents written pursuant to Google’s
corporate “Communicate with Care” policy that seeks to shield from production documents
containing “sensitive” business information; (2) documents related to certain code-named,
business-led projects; and (3) documents clawed back by Google where Plaintiffs believe Google
is unlikely to be able to sustain its claim of privilege.
As explained in more detail below, Google used code names for a number of specialized projects
and initiatives within its digital advertising business.
These documents are identified by Bates number in the Appendix along with certain fields
contained in Google’s privilege logs. Page 5 Case
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LEGAL STANDARD
Because the Amended Complaint seeks to vindicate federal antitrust laws, federal
common law governs claims of privilege. See Fed. R. Evid. 501. “A party asserting a privilege
has the burden of showing that it applies.” ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247,
251 (E.D. Va. 2012); E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS
36530, at *10 (E.D. Va. Apr. 13, 2010). “In the Fourth Circuit, work product and attorneyclient privilege are construed ‘quite narrowly’ [and] . . . are recognized ‘only to the very limited
extent that . . . excluding relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.’” ePlus, 280 F.R.D. at
251.
I.
The Attorney-Client Privilege Is Narrowly Construed.
Because the attorney-client privilege “impedes the full and free discovery of the
truth . . . [it] is to be narrowly construed.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)
(cleaned up). “The burden is on the proponent of the attorney-client privilege to demonstrate its
applicability.” Id. (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). In order
to meet that burden, the proponent must show:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion on law or (ii) legal services
or (iii) assistance in some legal proceeding, and not (d) for the purpose of Page 6 Case
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committing a crime or tort; and (4) the privilege has been (a) claimed and (b)
not waived by the client.
Id. (emphasis added).
“[T]he attorney-client privilege does not apply simply because documents were sent to an
attorney.” N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011); see Fed.
Election Com’n v. Christian Coalition, 178 F.R.D. 456, 469 (E.D. Va. 1998) (A “party must do
more than merely sending a document to his or her attorney in order to take advantage of the
attorney client privilege.”). While the privilege extends to certain communications involving inhouse counsel “in order for the privilege apply to those communications, the attorney must be
acting in a legal capacity, and not merely as a business advisor.” CSX Transp., Inc. v. Norfolk S.
Ry. Co., 2020 WL 12862960, at *2 (E.D. Va. Aug. 21, 2020). “A communication is not
privileged simply because one of the parties is an attorney” and “simply copying an attorney on a
communication . . . [does not] cloak that communication with the attorney-client privilege.” Id.
“To determine whether an attorney is acting in a legal capacity, courts look to whether
the ‘primary purpose’ of the communication is to ‘solicit[] legal, rather than business,
advice.’” Id.; see also Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Tr. No.
1B, 230 F.R.D. 398, 411 (D. Md. 2005) (“Where business and legal advice are intertwined, the
legal advice must predominate for the communication to be protected.”). In doing so, courts in
this district “cautiously and narrowly apply the privilege in cases involving corporate staff
counsel lest the mere participation of an attorney be used to seal off disclosure.” CSX Transp.,
2020 WL 12862960, at *2; see also Neuder v. Battelle Pac. Nw. Nat'l Lab., 194 F.R.D. 289, (D.D.C. 2000) (“[D]ocuments prepared by non-attorneys and addressed to non-attorneys with
copies routed to counsel . . . are generally not privileged since they are not communications
made primarily for legal advice.”). Additionally, even if a particular communication is found to Page 7 Case
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be privileged, “[t]he attorney client privilege ‘protects only the communications themselves, not
underlying facts.’” Sharer v. Tandberg, Inc., 2007 U.S. Dist. LEXIS 22391, at *4 (E.D. Va. Mar.
27, 2007).
II.
Attorney Work Product Protection Does Not Shield All Business Documents
Written While a Company Is in Litigation or Under Investigation
Google appears to believe that the work product doctrine can shield from scrutiny major
business projects simply because they were undertaken while the company was under
government investigation. That is not the law. Originally defined by the Supreme Court in
Hickman v. Taylor, 329 U.S. 495 (1947), the work product doctrine was later partially codified in
Fed. R. Civ. P. 26(b)(3): “a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R.
Civ. P. 26(b)(3). As with the attorney-client privilege, “the party claiming the protection bears
the burden of demonstrating the applicability of the work product doctrine.” Solis v. Food
Employers Labor Relations, 644 F.3d 221, 232 (4th Cir. 2011).
To determine whether a document was “prepared in anticipation of litigation” and
potentially qualifies as protected work product, this Circuit applies the “because of” test: “[t]he
document must be prepared because of the prospect of litigation when the preparer faces an
actual claim or a potential claim following an actual event or series of events that reasonably
could result in litigation.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980,
984 (4th Cir. 1992). Importantly, “materials prepared in the ordinary course of business or
pursuant to regulatory requirements or for other non-litigation purposes are not documents
prepared in anticipation of litigation within the meaning of Rule 26(b).” Id. Even “documents
created by or at the direction of lawyers in the ordinary course of business [are] distinguished Page 8 Case
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from documents created in anticipation of litigation. . . . Unless documents are created because
of the prospect of litigation, work product protection does not apply.” E.I. du Pont, 2010 U.S.
Dist. LEXIS 36530, at *10-11 (internal quotation marks and citations omitted).
Even where litigation is reasonably anticipated, work product protection does not shield
from discovery business discussions simply because they account for or may become relevant to
a potential lawsuit. The Fourth Circuit has recognized that “because litigation is an ever-present
possibility in American life, it is more often the case than not that events are documented with
the general possibility of litigation in mind . . . [y]et, ‘[t]he mere fact that litigation does
eventually ensue does not, by itself, cloak materials’ with work product immunity.” Nat’l Union,
967 F.2d at 984; see RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007)
(“The preparation of work merely because an attorney ‘anticipates the contingency’ of litigation
is not sufficient to qualify the work for the protection afforded by the work-product doctrine.”). Instead, anticipated litigation must be the “driving force” behind the document. Nat’l Union, F.2d at 984.
“The party asserting the work product doctrine must establish that the document at issue
was prepared at the direction of an attorney in anticipation of litigation.” ePlus Inc., 280 F.R.D.
In In re Capital One Consumer Data Sec. Breach Litig., 2020 U.S. Dist. LEXIS 91736, at *1112 (E.D. Va. May 26, 2020), this Court further articulated the exacting standard a company must
meet to demonstrate work product applies:
As recognized in RLI, the party requesting protection under the work product
doctrine bears the burden of showing how it would have investigated the incident
differently if there was no potential for litigation. The hiring of outside counsel does
not excuse a company from conducting its duties and addressing the issues at hand.
As in RLI, the fact that the investigation was done at the direction of outside counsel
and the results were initially provided to outside counsel, does not satisfy the “but
for” formulation. For the reasons discussed below, [the company] has not presented
sufficient evidence to show that the incident response services performed by [a
consultant] would not have been done in substantially similar form even if there
was no prospect of litigation. (internal citations omitted). Page 9 Case
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at 251. In doing so, it must make a “specific demonstration of facts supporting the requested
protection, preferably through affidavits from knowledgeable persons.” E.I. du Pont., 2010 U.S.
Dist. LEXIS 36530, at *11-12 (internal quotation marks omitted); see also Hempel v. Cydan
Dev., Inc., 2020 U.S. Dist. LEXIS 153208, at *12-13 (D. Md. Aug. 24, 2020) (recognizing a
party “cannot simply rely on conclusory statements in its memoranda,” but rather must provide
“specific factual support” for its work product claim). Courts in this district construe the
proponent’s “factual assertions within the narrowest possible limits consistent with the logic of
the ‘because of’ principle.” RLI, 477 F. Supp. 2d at749.
Applying the “because of” standard serves two objectives. First, it protects materials
“created because of litigation when that litigation is a real likelihood” but not those created
“when that litigation is merely a possibility.” Id. at 747. Second, it “protect[s] only work that was
conducted because of [] litigation, not work that would have been done in any event.” Id. For
example, “where regulations or other ‘non-litigation’ responsibilities compel a party to produce
‘work product,’ that product is made ‘in the ordinary course of business, and does not receive
work product immunity.’” Id. at 747-48 (explaining work product extends only to documents
that “would not have been prepared in substantially similar form but for the prospect of that
litigation”).
Companies may not simply funnel business communications and decision-making
through in-house counsel in order to shield those materials from discovery as protected work
product. As this court has explained, “litigants cannot escape their obligations to disclose
underlying facts by communicating them to an attorney or having an attorney direct the fact
investigation.” In re Dominion Dental Servs. USA, Inc. Data Breach Litig., 429 F. Supp. 3d 190,
193-94 (E.D. Va. 2019) (finding work product did not apply where documents were “used for a Page 10 Case
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range of non-litigation purposes” notwithstanding statement of work indicating the project was
completed “under the direction of Counsel”). While non-attorneys may generate protected work
product, whether a business person rather than an attorney created a document and the relative
level of attorney involvement are important considerations. See Nat’l Union, 967 F.2d at 984.
When non-lawyers take a leading role in drafting documents or leading projects within the scope
of their ordinary course business functions, it is more likely that the “driving force” behind the
document was the operation of the business rather than anticipated litigation.
The party asserting work product doctrine must support its claims on a document by
document basis, identifying the particular litigation for which specific documents were prepared.
See Solis, 644 F.3d at 232. Even where a document contains material protected by the work
product protection, “[i]f opinions and theories about the litigation are only part of a document
otherwise discoverable, the court may require production of a redacted copy.” Nat’l Union, F.2d at 985; see also Asghari–Kamrani v. United Servs. Auto. Ass’n, 2017 WL 553402, at *(E.D. Va. Jan. 20, 2017).
III.
In Camera Inspection is Appropriate to Assess Google’s Claims of Privilege
Consistent with paragraph 12(c) of the parties Protective Order (Dkt. 98), 9 Plaintiffs seek
the Court’s determination on Google’s privilege claims based on in camera review. “[C]ourts are
generally thought to have broad discretion to determine whether a privilege is properly asserted.”
Christian Coalition, 178 F.R.D. at 461. In exercising that discretion, a court may conduct in
camera review where it would be helpful “for the Court correctly to apply the Fourth Circuit’s
attorney-client privilege law, including the limitations that are inherent in that body of law.” F.T.C.
Under paragraph 12 of the Protective Order, following a clawback of a document, a party
challenging a claim of privilege “may promptly present the information to the court under seal for
a determination of the claim in camera.” Page 11 Case
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v. Reckitt Benckiser Pharm., Inc., 2015 WL 1062062, at *8 (E.D. Va. Mar. 10, 2015); see also
Morrison v. Cty. of Fairfax, 2014 U.S. Dist. LEXIS 189528, at *6 (E.D. Va. June 19, 2014)
(Clearly not all communications involving an attorney are subject to the attorney-client privilege
and those communications must be reviewed individually to see if they satisfy the above
requirements.”); Asghari–Kamrani, 2017 WL 553402, at *6 (noting courts typically “must
determine, from an examination of the documents or their circumstances, whether they were
prepared in anticipation of litigation or for trial”). At most, some courts in this district have
required a party requesting in camera inspection to make “an adequate factual showing that at least
some of the information contained in the documents may be subject to disclosure.” Brown Univ.
v. Tharpe, 2012 U.S. Dist. LEXIS 194805, at *9 (E.D. Va. Mar. 30, 2012). Where the parties’
disagreement over clawed back documents is “sufficiently narrow,” courts in this district have
engaged in in camera inspection “notwithstanding the strength of [the proponent’s] privilege
claims.” In re Zetia (Ezetimibe) Antitrust Litig., 2019 WL 6122012, at *5 (E.D. Va. July 16, 2019);
see Harrison v. Shanahan, 2019 U.S. Dist. LEXIS 86589, at *7 (E.D. Va. May 22, 2019) (in
camera review of representative sample of 32 documents). As detailed below, Plaintiffs easily
satisfy the minimal showing required to justify review of the 21 exemplar documents in the
Appendix.
ARGUMENT
I.
Google’s Corporate Policy of Labeling Ordinary Business Communications with
Pretextual Indicia of Privilege Should Not Shield Such Documents from Discovery
Google encourages its employees to shield from potential production documents with
“sensitive” business information by instructing its employees to (i) label documents discussing
“sensitive” business issues as “privileged”; (ii) include the name of an attorney; and (iii) ask the Page 12 Case
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lawyer a question. 10 Google’s internal name for this policy is “Communicate with Care.”
“Communicate with Care” was described briefly in Judge Donato’s recent order sanctioning
Google in In re Google Play Store Antitrust Litig., 2023 U.S. Dist. LEXIS 53218, at *18 (N.D.
Cal. Mar. 28, 2023): “The ‘Communicate with Care’ training gave specific instructions to Google
employees about strategies for seeking to make their emails and other communications ‘protected
by the attorney-client privilege.’”
Google has produced some—but appears to have withheld many more—documents that
confirm Google’s digital advertising employees engaged in this practice, without genuinely
seeking or receiving legal advice on the subjects in question. For example, in one email chain,
when a group of business employees were discussing their concerns about possible
“circumvention tactic[s]” customers could employ to get around one of Google’s potentially
anticompetitive product changes, a product manager applied a “Privileged and Confidential”
legend to the chain, added in-house counsel (without any request for legal advice), and warned
employees to “communicate with care,” raising concern that the emails could be construed to
suggest “that our intent is to directly impact [rival companies’] header bidding, when a publisher
uses [] our [products].” 11 The product manager continued: “We should assume that every
document (and email) we generate will likely be seen by regulators.” Similarly, a Managing Director for Global Partnerships notified Google’s Chief Business
Officer that a large customer had complained that Google cut off its access to a data file
containing information about how its digital advertising inventory was performing with various
See Ex. 4, GOOG-DOJ-06890329 at -363.
Ex. 5, GOOG-DOJ-AT-01132905 at -905.
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business partners, including Google’s competitors. Google’s customer complained that Google’s
refusal to provide this information going forward would be “anti-competitive.” 13 In response,
Google’s Chief Business Officer asked, “Can someone send me a privileged doc on what’s
exactly in the file, how this is being used, potential use cases by [the customer] that might not be
appropriate, etc. I am not sure I fully understand why they [the customer] are so annoyed about
this.” 14 The email request was not an attorney-client communication seeking legal advice, nor
did it even suggest the threat of litigation. Rather, it reported on a Google customer’s business
complaint about Google’s lack of transparency with respect to that customer’s own data.
Likewise, in an email discussing potential changes to product pricing, a Director of
Financial Planning & Analysis weighed in to remind the group: “For both confidentiality and
discoverability purposes, let’s please not get into margin details on non-privileged email. I’ve
had the joy of being deposed on just such emails in the past, and it’s not fun. :-/” Additional documents reflect the same systemic practice. For example, when a Google
employee branded an email “privileged and confidential” that reported on revenues, pricing, and
“partner funds” but made no request for legal advice, a fellow employee reminded the author,
“Just FYI - you need a lawyer on the email in order for it to be privileged & confidential : ) : ),”
to which the author responded: “I always forget what is the exact rule. . . . but this time it will
stick! was just a bit worried but will keep that in mind. . . or take law classes!”
See Ex. 6, GOOG-DOJ-07804118 at -119.
Ex. 6, GOOG-DOJ-07804118 at -118.
Ex. 7, GOOG-DOJ-04425135 at -135.
Ex. 8, GOOG-DOJ-04426627 at -627-628. Page 14 Case
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Another email branded “privileged and confidential” discussed the revenue impact on
customers of a Google product change – but shared no legal advice. 17 Nonetheless, a Google
employee warned: “It is marked as legally privileged for a reason, and I would like for us to be
able to control the message that goes out. If we think this is going to get forwarded, we will have
to dilute our updates. Please let’s be very careful about this.” Collectively, these emails reflect Google employees’ view that the best way to keep
sensitive business information private is to label documents “privileged and confidential” even
when no legal advice is being sought or received. Such communications do not qualify as
privileged. See Hopeman Bros. Inc. v. Cont’l Cas. Co., 2017 U.S. Dist. LEXIS 228210, at *4 (E.D.
Va. Nov. 6, 2017) (“Thus, the practice of carbon copying individuals who are identified as
‘attorneys’ in Defendants’ Privilege Log to emails or other transmissions does not automatically
render such documents protected by the attorney-client privilege.”); CSX Transp., 2020 WL
12862960, at *2 (“cautiously and narrowly apply[ing] the privilege in cases involving corporate
staff counsel lest the mere participation of an attorney be used to seal off disclosure.”). While it is
likely that several of the documents in the Appendix are examples of this corporate strategy in
practice, Plaintiffs believe document 4 is a particularly illustrative example. 19 It is an email
discussion among Google business people about the fee Google charges for its ad exchange as
compared to the fees charged by certain rivals. At one point in the email chain, a Google product
manager adds a privilege legend after which most emails are redacted in full. At no point does a
Google attorney participate in the discussion. Plaintiffs respectfully request the Court review in
Ex. 9, GOOG-DOJ-15157183 at -184-187.
Ex. 9, GOOG-DOJ-15157183 at -183.
Ex. 10, GOOG-DOJ-AT-01019463. Page 15 Case
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camera this document and the others in the Appendix through the lens of Google’s Communicate
with Care policy and order Google to produce those documents unredacted, except for portions
that contain a bona fide request for legal advice.
II.
Google’s Blanket Claims of Privilege Over Code-Named Business Projects Are
Improper
Google has applied blanket claims of privilege over documents concerning certain code-
named business-led projects discussing the pricing, product strategy, and potential spin-off of
Google’s digital advertising business. After initially allowing limited testimony on some of these
projects at depositions taken during the United States’ pre-complaint investigation, in later
depositions Google’s counsel began instructing its witnesses not to testify about these codenamed business projects or the context in which they arose on the purported grounds of privilege.
Google’s counsel then sent a letter, requesting the United States destroy or sequester “any
documents containing references to or relating to the following projects” (emphasis added):
Project Sunday, Project Monday, Project Stonehenge, Project SingleClick, and Project Banksy. Since then, Google has asserted blanket attorney-client privilege and/or work product protection
claims over virtually all documents and information related to these projects.
Even where in-house counsel was involved in communications related to these projects,
given the prominent role of business employees and the clear nexus to ordinary-course strategic
business decisions for each project, Plaintiffs are concerned Google has broadly swept into its
privilege claims instances of in-house counsel providing business advice.
For example, Google’s privilege logs contain entries where in-house counsel opined on
“product development,” 21 where business advice—not legal advice—may well have been the
Ex. 11, Ltr. from J. Elmer, Aug. 19, 2021 at 1 (emphasis added).
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only—let alone primary—purpose of the communication. Google previously refused during a
pre-complaint investigative deposition to provide nearly any testimony on the scope and nature
of the projects and the role of individual team members. This has left Google without sufficient
evidence to support its broad privilege claims, even assuming some communications related to
some projects involved a request for or provision of legal advice. Google bears the burden to
establish that the provision of legal advice was the primary or predominant purpose of each
portion of each individual communication withheld on the basis of attorney-client privilege. See
CSX Transp., 2020 WL 12862960, at *2; Neuberger, 230 F.R.D. at 411. It has not done so here,
and therefore its claims of attorney-client privilege over the project-related documents identified
in the Appendix should be rejected or substantially narrowed during in camera review.
Google similarly has failed to put forward sufficient evidence to substantiate its claims of
work product protection. It has pointed generally to several regulatory investigations into its
business, contending that each project was “an analysis of potential remedies undertaken because
of and in response to active government investigations into, and in anticipation of litigation
concerning, Google’s ad tech business.” Even in its revised privilege logs, Google references
generally “active government investigations” and “anticipated litigation.” During the pre-complaint investigation, when the United States repeatedly sought to
probe further into Google’s privilege claims to assess the extent to which business reasons, nonlawyer business people, and pre-existing ordinary course business analyses drove these
projects—as opposed to specifically anticipated litigation—Google refused to respond, let alone
produce competent evidence to support its assertions. Based on the limited evidence available to
Plaintiffs, it appears many, if not all of, the identified projects also would have been undertaken
See, e.g., Appendix, privilege log entries for documents 5, 6, 8, 11, 12, 14-19. Page 17 Case
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in substantially similar form irrespective of any litigation. See RLI, 477 F. Supp. 2d at 747-48;
Capital One, 2020 U.S. Dist. LEXIS 91736, at *11-12. Google’s view of work product
protection would allow large companies that are often in litigation or under investigation to
shield substantial portions of their key business discussions and decisions from discovery.
The Appendix includes an exemplary sample of fourteen documents concerning these
code-named business projects that have been withheld based on purported privileges despite the
fact the subject matter of the documents go to the heart of the anticompetitive business structures
and practices described in the amended complaint. 23 Notwithstanding Google’s attempts to
shield from discovery information about these projects, Plaintiffs have pieced together some
understanding of each from the documents produced and deposition testimony taken during the
pre-complaint investigation. 24 That evidence undermines Google’s broad claims of privilege.
See Appendix, documents identified as related to code-named projects.
In an attempt to obtain additional information concerning these projects and provide Google a
further opportunity to put forward evidence supporting its assertions of privilege and work
product protection, the United States issued a 30(b)(6)-style civil investigative demand for
testimony on these topics. Google initially refused to provide a corporate representative to testify
to these issues under oath, even as to general project information that Google should have
included in its privilege logs. Ex. 12, Ltr. from J. Elmer, Sept. 14, 2021. Later, Google’s counsel
offered some cursory details concerning the projects in a letter, which it subsequently revised.
See, e.g. Ex. 13, Ltr. from J. Elmer, Oct. 4, 2021 at 8 (amending the relevant dates for certain
projects). Google ultimately agreed to have a corporate representative sit for the 30(b)(6)-style
deposition, but strikingly, Google’s representative then refused to adopt counsel’s
representations in the letters or to confirm their accuracy and completeness. Ex. 14, 30(b)(6)
Dep. of Alphabet at 61:20-62:7 (discussing 30(b)(6) Ex. 5, a September 14, 2021 letter sent from
Alphabet’s counsel to the Division); Ex. 15, Karr Ltr. to Elmer, Oct. 18, 2021; Ex. 16, Elmer Ltr.
to Karr, Oct. 28, 2021 at 1 (identifying withheld documents “that contain the names of the
projects identified in the CID Schedule”); Ex. 17 Elmer Ltr. to Karr, Nov. 15, 2021 at (identifying redacted documents “that contain the names of the projects identified in the CID
specifications”). Page 18 Case
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Project Stonehenge and Project SingleClick
Based on the limited information available to Plaintiffs, Project Stonehenge appears to
involve Google’s consideration of
. 25 According to deposition testimony, Google business employees “working on [the]
Google Ad Manager” product, not lawyers, were “in charge of Project Stonehenge.” Project SingleClick appears to be a related project. According to the limited set of related,
unredacted documents produced to date, Project SingleClick involved
Apparently the project considered a variety of
The project also considered a potential
Other
documents explain that Project SingleClick members discussed
See Ex. 14, 30(b)(6) Dep. of Alphabet at 237:3-239:15; Ex. 18, Dep. of
at 197:10-23.
See Ex. 19, Dep. of
project).
at 298:14-25 (identifying two non-lawyers as in charge of the
Ex. 20, GOOG-DOJ-AT-01021632 at -633.
Ex. 20, GOOG-DOJ-AT-01021632 at -633.
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Notably, Google has not asserted privilege over this spinoff project although the
discussions appear to be substantially similar in nature to the broader Project SingleClick.
According to Google, business executive
and in-house counsel Ted Lazarus jointly
initiated the project during a discussion where several other business employees weighed in on
the project. To the extent these projects assessed changes in the functionality and pricing structure of
Google’s market-dominant digital advertising products, these types of discussions occur every
day at businesses like Google, as confirmed by Google employees at deposition. 32 They also go
to the heart of much of the anticompetitive conduct alleged in the Amended Complaint, and
therefore are highly relevant to Plaintiffs’ claims and Google’s anticipated defenses.
Accordingly, the Court should reject or substantially narrow Google’s privilege claims for the
challenged documents that relate to Projects Stonehenge and SingleClick.
Ex. 21, GOOG-DOJ-10963552 at -552-001.
Ex. 14, 30(b)(6) Dep. of Alphabet at 146:11-13.
See Ex. 14, 30(b)(6) Dep. of Alphabet at 237:3-239:25.
See, e.g., Appendix, document 1. Although Judge Castel denied a privilege challenge by the
MDL plaintiffs to a single redaction in a single SingleClick-related document that is not within
the scope of this motion, the SDNY court certainly did not rule that every document referencing
SingleClick is privileged in whole. See In re Google Digit. Advert. Antitrust Litig., 2023 U.S.
Dist. LEXIS 7865, at *36. Judge Castel also did not have the benefit of the evidentiary record
concerning SingleClick (including relevant deposition testimony) discussed above. Moreover,
with respect to document GOOG-DOJ-12766025 in particular, Google previously allowed
portions of the document to be read into the record at deposition without objection, thereby
voluntarily and intentionally waiving any privilege as to that document. Ex. 18, Dep. of
at 196:16-201:13. In the six months following that deposition, Google and its
counsel did nothing to attempt to clawback, redact, or otherwise address the testimony, and when
confronted directly with that fact in the 30(b)(6)-style deposition, Google’s counsel still did
nothing to protect the confidentiality of that information. Ex. 14, Alphabet 30(b)(6) Dep. at
179:23-191:8. Page 20 Case
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Project Sunday and Project Monday
Project Sunday, and its follow-on Project Monday, appear to have considered
The projects incorporated
. At
depositions, Google employees refused to confirm whether third parties were involved in this
analysis or whether any business decisions were made as part of the work, testifying only that the
project was an investigation “in response to privacy and antitrust investigations globally.” Project Monday was not initiated by Google’s in-house or outside counsel. Rather,
, initiated and was the driving force behind the
project. The Court should reject Google’s overbroad work product claims for Projects Sunday and
Monday. 37 Google’s consideration of the value and potential sales opportunity of its various
advertising technology products is again an ordinary course analysis, even if those analyses
account for a variety of factors that include, among others, ongoing or potential regulatory
investigations. In one of the few instances where Google allowed testimony on the nature of
these projects,
, a Google executive and the top leader of Google’s display
See Ex. 22, LAZARD-DOJ-00000044 at -
Ex. 14, 30(b)(6) Dep. of Alphabet 116:12-117:13.
See, e.g., Ex. 19, Dep. of
Ex. 14, 30(b)(6) Dep. of Alphabet at 122:10-11.
See, e.g., Appendix, documents 5 and 6.
at 296:18-297:15.
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advertising business, who purportedly initiated Project Sunday confirmed that lawyers played, at
most, a very limited role. 38 At his deposition, he admitted that no attorneys instructed him to do
any work for Projects Sunday or Monday and that he did not instruct any attorneys in the course
of those projects. 39 Given this testimony, the burden on Google of establishing work product
protection for these projects should be heightened.
Project Banksy
Project Banksy is a
Specifically, it concerned
The project appears to have been put on hold for a period of time after Google decided
not to allow such functionality, but it was resumed as a potential change to Google’s product in
recent years, one that might also appease antitrust regulators. 41 Project Banksy addressed such
issues as
Ex. 30, Dep. of
at 243:4-248:25; Ex. 13, Ltr. from J. Elmer, Oct. 4, at 3 (“Company’s Response: . . . Project Sunday . . . Google employees who initiated the project:
” [sic]).
Ex. 30, Dep. of
at 260:6-261:9.
Ex. 23, GOOG-DOJ-07837658 at -659; Ex. 24 GOOG-DOJ-15563771 (expanded comments
on GOOG-DOJ-07837658); see also Ex. 25 GOOG-DOJ-AT-01508261.
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The project appears to have been
part of Google’s further attempt to
As Google
testified, as of early 2020, Project Banksy was
He confirmed the project
Google’s broad assertions of work product and privilege with respect to Project Banksy
fare no better than its claims for other project documents. 47 Even Google concedes that the
project (under the same code name) existed well before any potential litigation was anticipated; the “privileged” version of the project for which Google now asserts work product protection is a
continuation of those earlier business discussions. The company’s expansive view of work
product would effectively wall off from inquiry any major business decision a company
Ex. 23, GOOG-DOJ-07837658 at -659.
Ex. 26, GOOG-DOJ-10306681 at -685.
Ex. 27, GOOG-DOJ-AT-01045132 at -137 (discussing
).
Ex. 28, Dep. of
at 170:14-18.
Ex. 28, Dep. of
at 179:2-4. Id.
See Appendix, documents 13 and 20.
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considers once under investigation by the government. No legal authority extends the scope of
the protection so far.
For each code-named project document identified in the Appendix, the Court should find
Google has failed to put forward sufficient evidence to substantiate its withholding or substantial
redactions on the basis of privilege. To the extent the Court determines certain claims are
substantiated, Plaintiffs respectfully request that the Court order the production of any portions
of the documents that do not contain privileged material.
III.
The Court Should Review In Camera Certain Documents Google Has Improperly
Clawed Back as Privileged
Additionally, Plaintiffs request that the Court review the remaining documents in the
Appendix, 49 all of which were produced previously by Google and later clawed back.
A. Google Habitually Engages in Clawbacks of Responsive Documents, Often Multiple
Times for the Same Document
Throughout the pre-complaint investigation, Google clawed back many documents it had
produced. In certain cases, this occurred only after the evidentiary value of the documents
became clear to Google, such as during depositions. In total, Google has clawed back over documents. Nine clawbacks occurred during pre-complaint investigative depositions, when
witnesses were pressed on the substance of the documents. Seven of the documents identified in
the Appendix 50 have been clawed back by Google at least twice and reproduced with different
degrees of redactions.
Extending its pre-complaint practices to this litigation, just last week, Google requested
Plaintiffs sequester or destroy over 1500 documents, almost all of which Google produced to the
See, Appendix, documents 2, 3, 7, 10, 16, 21.
See Appendix, identifying documents clawed back multiple times. Page 24 Case
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United States in 2020 or 2021. This recent round of clawbacks included a document quoted in
the Amended Complaint, 51 as well as a document used (without objection) as an exhibit in a
deposition that occurred more than eighteen months ago. B. The Court Should Review the Sample of Clawed Back Documents Identified in the
Appendix
As all of the documents identified in the Appendix have been clawed back at one time or
another, Plaintiffs’ ability to articulate fully their challenge to Google’s claims of privilege is
limited. Suffice it to say, however, that Plaintiffs believe that in camera review would allow the
Court to quickly assess Google’s claims, consistent with the procedure set forth in paragraph of the Protective Order and this Court’s practices. Cf. Harrison, 2019 U.S. Dist. LEXIS 86589, at
*7 (describing in camera review of an exemplar set of 32 purportedly privileged documents).
Notably, while many of the privilege log entries for these documents include claims of
attorney-client privilege, no lawyer is identified in the metadata of these documents as an author
or recipient. Additionally, several of Google’s privilege log descriptions for these documents
appear materially deficient or call into question Google’s assertion of privilege. For example,
Google asserts substantial redactions to two non-lawyer employees’ work performance reviews
based on a purported attorney-client privilege or work product protection. 53 Other privilege log
entries claim attorney-client privilege for presentations and emails seeking or revealing legal
advice “regarding legal aspects of product development.” 54 Yet another claim of attorney-client
GOOG-DOJ-05782415 (quoted in paragraph 120 of the Amended Complaint (Dkt. 120)).
GOOG-DOJ-AT-00682026; Ex. 31, Dep. of
at 93:19-99:24, Ex. 4. Plaintiffs
are continuing to meet and confer with Google concerning the most recent set of clawbacks, and
as a result, these documents are not within the scope of the present motion.
See Appendix, privilege log entries for documents 13 and 17.
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privilege is based on an “[e]mail demonstrating legal advice of counsel regarding regulatory
issues,” without a claim that the email communication in fact sought or reflected legal advice
provided to Google employees with a need to know such advice. 55 Especially when placed
within the overall context of Google’s corporate practices and prior broad assertions of privilege,
these red flags in Google’s privilege logs suggest “that at least some of the information contained
in the documents may be subject to disclosure,” justifying in camera inspection. Brown Univ.,
2012 U.S. Dist. LEXIS 194805, at *9. At a minimum, Plaintiffs believe Google’s redactions of
these documents are likely overbroad, such that the Court should exercise its “broad discretion to
determine whether a privilege is properly asserted” via in camera review. Christian Coalition,
178 F.R.D. at 461. Plaintiffs believe such review will allow the Court to expeditiously evaluate
Google’s claims of privilege and issue an order requiring the production of the non-privileged
portions of the Appendix documents.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court review in camera
the documents identified in the Appendix and order Google to produce each document, with
appropriate redactions only if necessary.
See Appendix, privilege log entry for document 1. Page 26 Case
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Dated: May 19, Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 307-Fax: (202) 616-Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA Telephone: (804) 692-Facsimile: (804) 786-Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR IN
CAMERA INSPECTION AND TO COMPEL PRODUCTION OF
DOCUMENTS WRONGFULLY WITHHELD AS PRIVILEGED
In light of evidence calling into question the breadth of Google’s privilege assertions,
Plaintiffs request in camera review of twenty-one (21) documents that they believe Google has
improperly withheld or redacted on the basis of the attorney-client privilege or other
protections. 1 These documents are identified in the Appendix attached to Plaintiffs’ motion.
Plaintiffs respectfully request that the Court instruct Google to provide—directly to the Court—
unredacted copies of these 21 documents to facilitate in camera review. Plaintiffs believe these
documents contain information highly relevant to Plaintiffs’ claims and/or Google’s anticipated
defenses. They were selected because they are representative of fundamental areas of
disagreement between Plaintiffs and Google concerning the proper assertion of privileges. 2 The
parties have met and conferred about this issue and were unable to reach resolution.
1
For ease of reference, Plaintiffs will refer to the attorney-client privilege and work product
protection or other privileges collectively as “privileges.”
2
Plaintiffs believe the Court’s ruling on this subset of representative documents will facilitate
more productive meet and confer discussions regarding other outstanding privilege disputes. To
the extent those discussions are not fruitful, and if warranted, Plaintiffs may return to the Court for
any additional necessary relief.
1
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BACKGROUND
During the multi-year investigation of Google’s conduct that preceded the filing of this
lawsuit, the United States became concerned about Google’s invocation of the attorney-client
and other privileges to shield documents and information from discovery. This concern resulted
in extensive discussion and correspondence between the parties about Google’s privilege
assertions. 3 Google withheld from production—in whole or in part—hundreds of thousands of
responsive documents purportedly on the basis of privileges. Google also engaged in a series of
belated, and sometimes inconsistent, clawbacks of purportedly privileged documents, at times on
the eve, or in the middle, of depositions. After the United States confronted Google’s witnesses
with certain documents at investigative depositions, Google clawed back and reproduced the
documents a second or third time with additional redactions.
Two examples of Google’s prior privilege assertions during the pre-complaint
investigation are indicative of the problem. First, Google initially substantially redacted or
withheld completely presentation materials that Google’s business decisionmakers considered at
meetings concerning the digital advertising business, including documents from Google’s
Business Council (“BC”) and Ads and Commerce (“ACM”) groups. 4 Only after the United
States challenged this patently overbroad application of the privilege did Google produce the
relevant documents three months later. Second, Google initially withheld nearly 700 emails on
the basis that its President of Global Partnerships and Corporate Development (who authored or
was copied on the emails) had previously practiced as an attorney at the company. As his title
suggests, however, this individual was serving exclusively in a business capacity during the time
3
The outstanding privilege issues as of the time Plaintiffs filed suit are summarized in a letter
from B. Nakamura to J. Elmer dated Jan. 18, 2023, and the letters referenced therein. (Ex. 1.)
4
Ex. 2, Ltr. from J. Hogan, Apr. 6, 2021.
2
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that the relevant documents were prepared. Indeed, the individual was not licensed to practice
law in any state at the time the documents were written. At his deposition, the business executive
confirmed that he had not provided legal advice at Google for nearly a decade. 5 Once again, only
after the United States objected to the withholding of these clearly unprivileged documents did
Google produce some of them.
Given this prior troubling experience with Google’s invocation of the privilege to shield
unprivileged documents from discovery during the pre-complaint investigation, when discovery
commenced in this action on March 27, 2023, Plaintiffs served Google with written discovery
requests, including Request for Production (“RFP”) No. 1 which seeks:
All documents already produced by Google in response to Civil Investigative
Demand Nos. 30092, 30120, 30121, and 30471, including all documents
responsive to those Civil Investigative Demands and all documents wrongfully
withheld as privileged or on the basis of work product protection as set forth in
the January 18, 2023 letter from Brent K. Nakamura to Julie Elmer, the June 6,
2022, letter from David Teslicko to Julie Elmer, and the letters referenced
therein.
RFP No. 2 seeks:
All documents relating to any plans of, interest in, or efforts undertaken by the
Company or any other person for any acquisition, divestiture, joint venture,
alliance, or merger of any kind involving the sale of any Relevant Product or
5
Ex. 3, Dep. of
at 74:6-10 (“So from 1997 through 2011, I was a lawyer”); 83:1317 (“Q. Is there a time at which you stopped working in Google’s legal department? A. There is.
In late 2011, early 2012, I took on a business role managing our corporate development team.”);
245:3-4 (“I take the position that I haven’t practiced law since 2011.”).
3
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Service. For the avoidance of doubt, this includes all documents relating to
Project Sunday, Project Monday, Project Stonehenge, Project SingleClick,
Project Quantize, and communications with third-party Lazard Frères & Co.
LLC. 6
Following the parties’ April 17, 2023, meet and confer to discuss these RFPs, on April
26, 2023, Google served its responses. As to RFP No. 1, Google declined to produce any new
documents and indicated it “stands on the claims of privilege and work product protection it has
asserted with respect to certain documents within the scope of the enumerated investigative
requests.” As to RFP No. 2, “Google stands on the claims of privilege and/or work product
protection it has asserted with respect to documents relating to Project Sunday, Project Monday,
Project Stonehenge, [and] Project SingleClick.” Google’s decision to persist with its prior claims
of privilege for RFP Nos. 1 and 2 renders the parties’ privilege disputes ripe, as Plaintiffs made
clear during the parties’ meet and confers on May 10 and May 12, 2023.
For purposes of this motion for in camera inspection and to compel production, Plaintiffs
have selected exemplars of three categories of documents for which Google has failed to
substantiate the scope of its privilege claims: (1) documents written pursuant to Google’s
corporate “Communicate with Care” policy that seeks to shield from production documents
containing “sensitive” business information; (2) documents related to certain code-named,
business-led projects; and (3) documents clawed back by Google where Plaintiffs believe Google
is unlikely to be able to sustain its claim of privilege. 7
6
As explained in more detail below, Google used code names for a number of specialized projects
and initiatives within its digital advertising business.
7
These documents are identified by Bates number in the Appendix along with certain fields
contained in Google’s privilege logs.
4
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LEGAL STANDARD
Because the Amended Complaint seeks to vindicate federal antitrust laws, federal
common law governs claims of privilege. See Fed. R. Evid. 501. “A party asserting a privilege
has the burden of showing that it applies.” ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247,
251 (E.D. Va. 2012); E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS
36530, at *10 (E.D. Va. Apr. 13, 2010). “In the Fourth Circuit, work product and attorneyclient privilege are construed ‘quite narrowly’ [and] . . . are recognized ‘only to the very limited
extent that . . . excluding relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.’” ePlus, 280 F.R.D. at
251.
I.
The Attorney-Client Privilege Is Narrowly Construed.
Because the attorney-client privilege “impedes the full and free discovery of the
truth . . . [it] is to be narrowly construed.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)
(cleaned up). “The burden is on the proponent of the attorney-client privilege to demonstrate its
applicability.” Id. (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). In order
to meet that burden, the proponent must show:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion on law or (ii) legal services
or (iii) assistance in some legal proceeding, and not (d) for the purpose of
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committing a crime or tort; and (4) the privilege has been (a) claimed and (b)
not waived by the client.
Id. (emphasis added).
“[T]he attorney-client privilege does not apply simply because documents were sent to an
attorney.” N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011); see Fed.
Election Com’n v. Christian Coalition, 178 F.R.D. 456, 469 (E.D. Va. 1998) (A “party must do
more than merely sending a document to his or her attorney in order to take advantage of the
attorney client privilege.”). While the privilege extends to certain communications involving inhouse counsel “in order for the privilege apply to those communications, the attorney must be
acting in a legal capacity, and not merely as a business advisor.” CSX Transp., Inc. v. Norfolk S.
Ry. Co., 2020 WL 12862960, at *2 (E.D. Va. Aug. 21, 2020). “A communication is not
privileged simply because one of the parties is an attorney” and “simply copying an attorney on a
communication . . . [does not] cloak that communication with the attorney-client privilege.” Id.
“To determine whether an attorney is acting in a legal capacity, courts look to whether
the ‘primary purpose’ of the communication is to ‘solicit[] legal, rather than business,
advice.’” Id.; see also Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Tr. No.
1B, 230 F.R.D. 398, 411 (D. Md. 2005) (“Where business and legal advice are intertwined, the
legal advice must predominate for the communication to be protected.”). In doing so, courts in
this district “cautiously and narrowly apply the privilege in cases involving corporate staff
counsel lest the mere participation of an attorney be used to seal off disclosure.” CSX Transp.,
2020 WL 12862960, at *2; see also Neuder v. Battelle Pac. Nw. Nat'l Lab., 194 F.R.D. 289, 295
(D.D.C. 2000) (“[D]ocuments prepared by non-attorneys and addressed to non-attorneys with
copies routed to counsel . . . are generally not privileged since they are not communications
made primarily for legal advice.”). Additionally, even if a particular communication is found to
6
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be privileged, “[t]he attorney client privilege ‘protects only the communications themselves, not
underlying facts.’” Sharer v. Tandberg, Inc., 2007 U.S. Dist. LEXIS 22391, at *4 (E.D. Va. Mar.
27, 2007).
II.
Attorney Work Product Protection Does Not Shield All Business Documents
Written While a Company Is in Litigation or Under Investigation
Google appears to believe that the work product doctrine can shield from scrutiny major
business projects simply because they were undertaken while the company was under
government investigation. That is not the law. Originally defined by the Supreme Court in
Hickman v. Taylor, 329 U.S. 495 (1947), the work product doctrine was later partially codified in
Fed. R. Civ. P. 26(b)(3): “a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R.
Civ. P. 26(b)(3). As with the attorney-client privilege, “the party claiming the protection bears
the burden of demonstrating the applicability of the work product doctrine.” Solis v. Food
Employers Labor Relations, 644 F.3d 221, 232 (4th Cir. 2011).
To determine whether a document was “prepared in anticipation of litigation” and
potentially qualifies as protected work product, this Circuit applies the “because of” test: “[t]he
document must be prepared because of the prospect of litigation when the preparer faces an
actual claim or a potential claim following an actual event or series of events that reasonably
could result in litigation.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980,
984 (4th Cir. 1992). Importantly, “materials prepared in the ordinary course of business or
pursuant to regulatory requirements or for other non-litigation purposes are not documents
prepared in anticipation of litigation within the meaning of Rule 26(b).” Id. Even “documents
created by or at the direction of lawyers in the ordinary course of business [are] distinguished
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from documents created in anticipation of litigation. . . . Unless documents are created because
of the prospect of litigation, work product protection does not apply.” E.I. du Pont, 2010 U.S.
Dist. LEXIS 36530, at *10-11 (internal quotation marks and citations omitted).
Even where litigation is reasonably anticipated, work product protection does not shield
from discovery business discussions simply because they account for or may become relevant to
a potential lawsuit. The Fourth Circuit has recognized that “because litigation is an ever-present
possibility in American life, it is more often the case than not that events are documented with
the general possibility of litigation in mind . . . [y]et, ‘[t]he mere fact that litigation does
eventually ensue does not, by itself, cloak materials’ with work product immunity.” Nat’l Union,
967 F.2d at 984; see RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007)
(“The preparation of work merely because an attorney ‘anticipates the contingency’ of litigation
is not sufficient to qualify the work for the protection afforded by the work-product doctrine.”). 8
Instead, anticipated litigation must be the “driving force” behind the document. Nat’l Union, 967
F.2d at 984.
“The party asserting the work product doctrine must establish that the document at issue
was prepared at the direction of an attorney in anticipation of litigation.” ePlus Inc., 280 F.R.D.
8
In In re Capital One Consumer Data Sec. Breach Litig., 2020 U.S. Dist. LEXIS 91736, at *1112 (E.D. Va. May 26, 2020), this Court further articulated the exacting standard a company must
meet to demonstrate work product applies:
As recognized in RLI, the party requesting protection under the work product
doctrine bears the burden of showing how it would have investigated the incident
differently if there was no potential for litigation. The hiring of outside counsel does
not excuse a company from conducting its duties and addressing the issues at hand.
As in RLI, the fact that the investigation was done at the direction of outside counsel
and the results were initially provided to outside counsel, does not satisfy the “but
for” formulation. For the reasons discussed below, [the company] has not presented
sufficient evidence to show that the incident response services performed by [a
consultant] would not have been done in substantially similar form even if there
was no prospect of litigation. (internal citations omitted).
8
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at 251. In doing so, it must make a “specific demonstration of facts supporting the requested
protection, preferably through affidavits from knowledgeable persons.” E.I. du Pont., 2010 U.S.
Dist. LEXIS 36530, at *11-12 (internal quotation marks omitted); see also Hempel v. Cydan
Dev., Inc., 2020 U.S. Dist. LEXIS 153208, at *12-13 (D. Md. Aug. 24, 2020) (recognizing a
party “cannot simply rely on conclusory statements in its memoranda,” but rather must provide
“specific factual support” for its work product claim). Courts in this district construe the
proponent’s “factual assertions within the narrowest possible limits consistent with the logic of
the ‘because of’ principle.” RLI, 477 F. Supp. 2d at749.
Applying the “because of” standard serves two objectives. First, it protects materials
“created because of litigation when that litigation is a real likelihood” but not those created
“when that litigation is merely a possibility.” Id. at 747. Second, it “protect[s] only work that was
conducted because of [] litigation, not work that would have been done in any event.” Id. For
example, “where regulations or other ‘non-litigation’ responsibilities compel a party to produce
‘work product,’ that product is made ‘in the ordinary course of business, and does not receive
work product immunity.’” Id. at 747-48 (explaining work product extends only to documents
that “would not have been prepared in substantially similar form but for the prospect of that
litigation”).
Companies may not simply funnel business communications and decision-making
through in-house counsel in order to shield those materials from discovery as protected work
product. As this court has explained, “litigants cannot escape their obligations to disclose
underlying facts by communicating them to an attorney or having an attorney direct the fact
investigation.” In re Dominion Dental Servs. USA, Inc. Data Breach Litig., 429 F. Supp. 3d 190,
193-94 (E.D. Va. 2019) (finding work product did not apply where documents were “used for a
9
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range of non-litigation purposes” notwithstanding statement of work indicating the project was
completed “under the direction of Counsel”). While non-attorneys may generate protected work
product, whether a business person rather than an attorney created a document and the relative
level of attorney involvement are important considerations. See Nat’l Union, 967 F.2d at 984.
When non-lawyers take a leading role in drafting documents or leading projects within the scope
of their ordinary course business functions, it is more likely that the “driving force” behind the
document was the operation of the business rather than anticipated litigation.
The party asserting work product doctrine must support its claims on a document by
document basis, identifying the particular litigation for which specific documents were prepared.
See Solis, 644 F.3d at 232. Even where a document contains material protected by the work
product protection, “[i]f opinions and theories about the litigation are only part of a document
otherwise discoverable, the court may require production of a redacted copy.” Nat’l Union, 967
F.2d at 985; see also Asghari–Kamrani v. United Servs. Auto. Ass’n, 2017 WL 553402, at *6
(E.D. Va. Jan. 20, 2017).
III.
In Camera Inspection is Appropriate to Assess Google’s Claims of Privilege
Consistent with paragraph 12(c) of the parties Protective Order (Dkt. 98), 9 Plaintiffs seek
the Court’s determination on Google’s privilege claims based on in camera review. “[C]ourts are
generally thought to have broad discretion to determine whether a privilege is properly asserted.”
Christian Coalition, 178 F.R.D. at 461. In exercising that discretion, a court may conduct in
camera review where it would be helpful “for the Court correctly to apply the Fourth Circuit’s
attorney-client privilege law, including the limitations that are inherent in that body of law.” F.T.C.
9
Under paragraph 12 of the Protective Order, following a clawback of a document, a party
challenging a claim of privilege “may promptly present the information to the court under seal for
a determination of the claim in camera.”
10
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v. Reckitt Benckiser Pharm., Inc., 2015 WL 1062062, at *8 (E.D. Va. Mar. 10, 2015); see also
Morrison v. Cty. of Fairfax, 2014 U.S. Dist. LEXIS 189528, at *6 (E.D. Va. June 19, 2014)
(Clearly not all communications involving an attorney are subject to the attorney-client privilege
and those communications must be reviewed individually to see if they satisfy the above
requirements.”); Asghari–Kamrani, 2017 WL 553402, at *6 (noting courts typically “must
determine, from an examination of the documents or their circumstances, whether they were
prepared in anticipation of litigation or for trial”). At most, some courts in this district have
required a party requesting in camera inspection to make “an adequate factual showing that at least
some of the information contained in the documents may be subject to disclosure.” Brown Univ.
v. Tharpe, 2012 U.S. Dist. LEXIS 194805, at *9 (E.D. Va. Mar. 30, 2012). Where the parties’
disagreement over clawed back documents is “sufficiently narrow,” courts in this district have
engaged in in camera inspection “notwithstanding the strength of [the proponent’s] privilege
claims.” In re Zetia (Ezetimibe) Antitrust Litig., 2019 WL 6122012, at *5 (E.D. Va. July 16, 2019);
see Harrison v. Shanahan, 2019 U.S. Dist. LEXIS 86589, at *7 (E.D. Va. May 22, 2019) (in
camera review of representative sample of 32 documents). As detailed below, Plaintiffs easily
satisfy the minimal showing required to justify review of the 21 exemplar documents in the
Appendix.
ARGUMENT
I.
Google’s Corporate Policy of Labeling Ordinary Business Communications with
Pretextual Indicia of Privilege Should Not Shield Such Documents from Discovery
Google encourages its employees to shield from potential production documents with
“sensitive” business information by instructing its employees to (i) label documents discussing
“sensitive” business issues as “privileged”; (ii) include the name of an attorney; and (iii) ask the
11
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lawyer a question. 10 Google’s internal name for this policy is “Communicate with Care.”
“Communicate with Care” was described briefly in Judge Donato’s recent order sanctioning
Google in In re Google Play Store Antitrust Litig., 2023 U.S. Dist. LEXIS 53218, at *18 (N.D.
Cal. Mar. 28, 2023): “The ‘Communicate with Care’ training gave specific instructions to Google
employees about strategies for seeking to make their emails and other communications ‘protected
by the attorney-client privilege.’”
Google has produced some—but appears to have withheld many more—documents that
confirm Google’s digital advertising employees engaged in this practice, without genuinely
seeking or receiving legal advice on the subjects in question. For example, in one email chain,
when a group of business employees were discussing their concerns about possible
“circumvention tactic[s]” customers could employ to get around one of Google’s potentially
anticompetitive product changes, a product manager applied a “Privileged and Confidential”
legend to the chain, added in-house counsel (without any request for legal advice), and warned
employees to “communicate with care,” raising concern that the emails could be construed to
suggest “that our intent is to directly impact [rival companies’] header bidding, when a publisher
uses [] our [products].” 11 The product manager continued: “We should assume that every
document (and email) we generate will likely be seen by regulators.” 12
Similarly, a Managing Director for Global Partnerships notified Google’s Chief Business
Officer that a large customer had complained that Google cut off its access to a data file
containing information about how its digital advertising inventory was performing with various
10
See Ex. 4, GOOG-DOJ-06890329 at -363.
11
Ex. 5, GOOG-DOJ-AT-01132905 at -905.
12
Ex. 5, GOOG-DOJ-AT-01132905 at -905.
12
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business partners, including Google’s competitors. Google’s customer complained that Google’s
refusal to provide this information going forward would be “anti-competitive.” 13 In response,
Google’s Chief Business Officer asked, “Can someone send me a privileged doc on what’s
exactly in the file, how this is being used, potential use cases by [the customer] that might not be
appropriate, etc. I am not sure I fully understand why they [the customer] are so annoyed about
this.” 14 The email request was not an attorney-client communication seeking legal advice, nor
did it even suggest the threat of litigation. Rather, it reported on a Google customer’s business
complaint about Google’s lack of transparency with respect to that customer’s own data.
Likewise, in an email discussing potential changes to product pricing, a Director of
Financial Planning & Analysis weighed in to remind the group: “For both confidentiality and
discoverability purposes, let’s please not get into margin details on non-privileged email. I’ve
had the joy of being deposed on just such emails in the past, and it’s not fun. :-/” 15
Additional documents reflect the same systemic practice. For example, when a Google
employee branded an email “privileged and confidential” that reported on revenues, pricing, and
“partner funds” but made no request for legal advice, a fellow employee reminded the author,
“Just FYI - you need a lawyer on the email in order for it to be privileged & confidential : ) : ),”
to which the author responded: “I always forget what is the exact rule. . . . but this time it will
stick! was just a bit worried but will keep that in mind. . . or take law classes!” 16
13
See Ex. 6, GOOG-DOJ-07804118 at -119.
14
Ex. 6, GOOG-DOJ-07804118 at -118.
15
Ex. 7, GOOG-DOJ-04425135 at -135.
16
Ex. 8, GOOG-DOJ-04426627 at -627-628.
13
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Another email branded “privileged and confidential” discussed the revenue impact on
customers of a Google product change – but shared no legal advice. 17 Nonetheless, a Google
employee warned: “It is marked as legally privileged for a reason, and I would like for us to be
able to control the message that goes out. If we think this is going to get forwarded, we will have
to dilute our updates. Please let’s be very careful about this.” 18
Collectively, these emails reflect Google employees’ view that the best way to keep
sensitive business information private is to label documents “privileged and confidential” even
when no legal advice is being sought or received. Such communications do not qualify as
privileged. See Hopeman Bros. Inc. v. Cont’l Cas. Co., 2017 U.S. Dist. LEXIS 228210, at *4 (E.D.
Va. Nov. 6, 2017) (“Thus, the practice of carbon copying individuals who are identified as
‘attorneys’ in Defendants’ Privilege Log to emails or other transmissions does not automatically
render such documents protected by the attorney-client privilege.”); CSX Transp., 2020 WL
12862960, at *2 (“cautiously and narrowly apply[ing] the privilege in cases involving corporate
staff counsel lest the mere participation of an attorney be used to seal off disclosure.”). While it is
likely that several of the documents in the Appendix are examples of this corporate strategy in
practice, Plaintiffs believe document 4 is a particularly illustrative example. 19 It is an email
discussion among Google business people about the fee Google charges for its ad exchange as
compared to the fees charged by certain rivals. At one point in the email chain, a Google product
manager adds a privilege legend after which most emails are redacted in full. At no point does a
Google attorney participate in the discussion. Plaintiffs respectfully request the Court review in
17
Ex. 9, GOOG-DOJ-15157183 at -184-187.
18
Ex. 9, GOOG-DOJ-15157183 at -183.
19
Ex. 10, GOOG-DOJ-AT-01019463.
14
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camera this document and the others in the Appendix through the lens of Google’s Communicate
with Care policy and order Google to produce those documents unredacted, except for portions
that contain a bona fide request for legal advice.
II.
Google’s Blanket Claims of Privilege Over Code-Named Business Projects Are
Improper
Google has applied blanket claims of privilege over documents concerning certain code-
named business-led projects discussing the pricing, product strategy, and potential spin-off of
Google’s digital advertising business. After initially allowing limited testimony on some of these
projects at depositions taken during the United States’ pre-complaint investigation, in later
depositions Google’s counsel began instructing its witnesses not to testify about these codenamed business projects or the context in which they arose on the purported grounds of privilege.
Google’s counsel then sent a letter, requesting the United States destroy or sequester “any
documents containing references to or relating to the following projects” (emphasis added):
Project Sunday, Project Monday, Project Stonehenge, Project SingleClick, and Project Banksy. 20
Since then, Google has asserted blanket attorney-client privilege and/or work product protection
claims over virtually all documents and information related to these projects.
Even where in-house counsel was involved in communications related to these projects,
given the prominent role of business employees and the clear nexus to ordinary-course strategic
business decisions for each project, Plaintiffs are concerned Google has broadly swept into its
privilege claims instances of in-house counsel providing business advice.
For example, Google’s privilege logs contain entries where in-house counsel opined on
“product development,” 21 where business advice—not legal advice—may well have been the
20
Ex. 11, Ltr. from J. Elmer, Aug. 19, 2021 at 1 (emphasis added).
21
Appendix, privilege log entries for documents 7, 20, and 21.
15
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only—let alone primary—purpose of the communication. Google previously refused during a
pre-complaint investigative deposition to provide nearly any testimony on the scope and nature
of the projects and the role of individual team members. This has left Google without sufficient
evidence to support its broad privilege claims, even assuming some communications related to
some projects involved a request for or provision of legal advice. Google bears the burden to
establish that the provision of legal advice was the primary or predominant purpose of each
portion of each individual communication withheld on the basis of attorney-client privilege. See
CSX Transp., 2020 WL 12862960, at *2; Neuberger, 230 F.R.D. at 411. It has not done so here,
and therefore its claims of attorney-client privilege over the project-related documents identified
in the Appendix should be rejected or substantially narrowed during in camera review.
Google similarly has failed to put forward sufficient evidence to substantiate its claims of
work product protection. It has pointed generally to several regulatory investigations into its
business, contending that each project was “an analysis of potential remedies undertaken because
of and in response to active government investigations into, and in anticipation of litigation
concerning, Google’s ad tech business.” Even in its revised privilege logs, Google references
generally “active government investigations” and “anticipated litigation.” 22
During the pre-complaint investigation, when the United States repeatedly sought to
probe further into Google’s privilege claims to assess the extent to which business reasons, nonlawyer business people, and pre-existing ordinary course business analyses drove these
projects—as opposed to specifically anticipated litigation—Google refused to respond, let alone
produce competent evidence to support its assertions. Based on the limited evidence available to
Plaintiffs, it appears many, if not all of, the identified projects also would have been undertaken
22
See, e.g., Appendix, privilege log entries for documents 5, 6, 8, 11, 12, 14-19.
16
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in substantially similar form irrespective of any litigation. See RLI, 477 F. Supp. 2d at 747-48;
Capital One, 2020 U.S. Dist. LEXIS 91736, at *11-12. Google’s view of work product
protection would allow large companies that are often in litigation or under investigation to
shield substantial portions of their key business discussions and decisions from discovery.
The Appendix includes an exemplary sample of fourteen documents concerning these
code-named business projects that have been withheld based on purported privileges despite the
fact the subject matter of the documents go to the heart of the anticompetitive business structures
and practices described in the amended complaint. 23 Notwithstanding Google’s attempts to
shield from discovery information about these projects, Plaintiffs have pieced together some
understanding of each from the documents produced and deposition testimony taken during the
pre-complaint investigation. 24 That evidence undermines Google’s broad claims of privilege.
23
See Appendix, documents identified as related to code-named projects.
24
In an attempt to obtain additional information concerning these projects and provide Google a
further opportunity to put forward evidence supporting its assertions of privilege and work
product protection, the United States issued a 30(b)(6)-style civil investigative demand for
testimony on these topics. Google initially refused to provide a corporate representative to testify
to these issues under oath, even as to general project information that Google should have
included in its privilege logs. Ex. 12, Ltr. from J. Elmer, Sept. 14, 2021. Later, Google’s counsel
offered some cursory details concerning the projects in a letter, which it subsequently revised.
See, e.g. Ex. 13, Ltr. from J. Elmer, Oct. 4, 2021 at 8 (amending the relevant dates for certain
projects). Google ultimately agreed to have a corporate representative sit for the 30(b)(6)-style
deposition, but strikingly, Google’s representative then refused to adopt counsel’s
representations in the letters or to confirm their accuracy and completeness. Ex. 14, 30(b)(6)
Dep. of Alphabet at 61:20-62:7 (discussing 30(b)(6) Ex. 5, a September 14, 2021 letter sent from
Alphabet’s counsel to the Division); Ex. 15, Karr Ltr. to Elmer, Oct. 18, 2021; Ex. 16, Elmer Ltr.
to Karr, Oct. 28, 2021 at 1 (identifying withheld documents “that contain the names of the
projects identified in the CID Schedule”); Ex. 17 Elmer Ltr. to Karr, Nov. 15, 2021 at 1
(identifying redacted documents “that contain the names of the projects identified in the CID
specifications”).
17
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Project Stonehenge and Project SingleClick
Based on the limited information available to Plaintiffs, Project Stonehenge appears to
involve Google’s consideration of
. 25 According to deposition testimony, Google business employees “working on [the]
Google Ad Manager” product, not lawyers, were “in charge of Project Stonehenge.” 26
Project SingleClick appears to be a related project. According to the limited set of related,
unredacted documents produced to date, Project SingleClick involved
27
Apparently the project considered a variety of
28
The project also considered a potential
29
Other
documents explain that Project SingleClick members discussed
25
See Ex. 14, 30(b)(6) Dep. of Alphabet at 237:3-239:15; Ex. 18, Dep. of
at 197:10-23.
26
See Ex. 19, Dep. of
project).
at 298:14-25 (identifying two non-lawyers as in charge of the
27
Ex. 20, GOOG-DOJ-AT-01021632 at -633.
28
Ex. 20, GOOG-DOJ-AT-01021632 at -633.
29
Ex. 20, GOOG-DOJ-AT-01021632 at -634.
18
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Notably, Google has not asserted privilege over this spinoff project although the
discussions appear to be substantially similar in nature to the broader Project SingleClick.
According to Google, business executive
and in-house counsel Ted Lazarus jointly
initiated the project during a discussion where several other business employees weighed in on
the project. 31
To the extent these projects assessed changes in the functionality and pricing structure of
Google’s market-dominant digital advertising products, these types of discussions occur every
day at businesses like Google, as confirmed by Google employees at deposition. 32 They also go
to the heart of much of the anticompetitive conduct alleged in the Amended Complaint, and
therefore are highly relevant to Plaintiffs’ claims and Google’s anticipated defenses.
Accordingly, the Court should reject or substantially narrow Google’s privilege claims for the
challenged documents that relate to Projects Stonehenge and SingleClick. 33
30
Ex. 21, GOOG-DOJ-10963552 at -552-001.
31
Ex. 14, 30(b)(6) Dep. of Alphabet at 146:11-13.
32
See Ex. 14, 30(b)(6) Dep. of Alphabet at 237:3-239:25.
33
See, e.g., Appendix, document 1. Although Judge Castel denied a privilege challenge by the
MDL plaintiffs to a single redaction in a single SingleClick-related document that is not within
the scope of this motion, the SDNY court certainly did not rule that every document referencing
SingleClick is privileged in whole. See In re Google Digit. Advert. Antitrust Litig., 2023 U.S.
Dist. LEXIS 7865, at *36. Judge Castel also did not have the benefit of the evidentiary record
concerning SingleClick (including relevant deposition testimony) discussed above. Moreover,
with respect to document GOOG-DOJ-12766025 in particular, Google previously allowed
portions of the document to be read into the record at deposition without objection, thereby
voluntarily and intentionally waiving any privilege as to that document. Ex. 18, Dep. of
at 196:16-201:13. In the six months following that deposition, Google and its
counsel did nothing to attempt to clawback, redact, or otherwise address the testimony, and when
confronted directly with that fact in the 30(b)(6)-style deposition, Google’s counsel still did
nothing to protect the confidentiality of that information. Ex. 14, Alphabet 30(b)(6) Dep. at
179:23-191:8.
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Project Sunday and Project Monday
Project Sunday, and its follow-on Project Monday, appear to have considered
34
The projects incorporated
. At
depositions, Google employees refused to confirm whether third parties were involved in this
analysis or whether any business decisions were made as part of the work, testifying only that the
project was an investigation “in response to privacy and antitrust investigations globally.” 35
Project Monday was not initiated by Google’s in-house or outside counsel. Rather,
, initiated and was the driving force behind the
project. 36
The Court should reject Google’s overbroad work product claims for Projects Sunday and
Monday. 37 Google’s consideration of the value and potential sales opportunity of its various
advertising technology products is again an ordinary course analysis, even if those analyses
account for a variety of factors that include, among others, ongoing or potential regulatory
investigations. In one of the few instances where Google allowed testimony on the nature of
these projects,
34
, a Google executive and the top leader of Google’s display
See Ex. 22, LAZARD-DOJ-00000044 at -044
Ex. 14, 30(b)(6) Dep. of Alphabet 116:12-117:13.
35
See, e.g., Ex. 19, Dep. of
36
Ex. 14, 30(b)(6) Dep. of Alphabet at 122:10-11.
37
See, e.g., Appendix, documents 5 and 6.
at 296:18-297:15.
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advertising business, who purportedly initiated Project Sunday confirmed that lawyers played, at
most, a very limited role. 38 At his deposition, he admitted that no attorneys instructed him to do
any work for Projects Sunday or Monday and that he did not instruct any attorneys in the course
of those projects. 39 Given this testimony, the burden on Google of establishing work product
protection for these projects should be heightened.
Project Banksy
Project Banksy is a
Specifically, it concerned
40
The project appears to have been put on hold for a period of time after Google decided
not to allow such functionality, but it was resumed as a potential change to Google’s product in
recent years, one that might also appease antitrust regulators. 41 Project Banksy addressed such
issues as
38
Ex. 30, Dep. of
at 243:4-248:25; Ex. 13, Ltr. from J. Elmer, Oct. 4, 2021
at 3 (“Company’s Response: . . . Project Sunday . . . Google employees who initiated the project:
” [sic]).
39
Ex. 30, Dep. of
at 260:6-261:9.
40
Ex. 23, GOOG-DOJ-07837658 at -659; Ex. 24 GOOG-DOJ-15563771 (expanded comments
on GOOG-DOJ-07837658); see also Ex. 25 GOOG-DOJ-AT-01508261.
41
Ex. 14, 30(b)(6) Dep. of Alphabet at 201:1-7.
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42
The project appears to have been
43
part of Google’s further attempt to
44
As Google
testified, as of early 2020, Project Banksy was
45
He confirmed the project
46
Google’s broad assertions of work product and privilege with respect to Project Banksy
fare no better than its claims for other project documents. 47 Even Google concedes that the
project (under the same code name) existed well before any potential litigation was anticipated; 48
the “privileged” version of the project for which Google now asserts work product protection is a
continuation of those earlier business discussions. The company’s expansive view of work
product would effectively wall off from inquiry any major business decision a company
42
Ex. 23, GOOG-DOJ-07837658 at -659.
43
Ex. 26, GOOG-DOJ-10306681 at -685.
44
Ex. 27, GOOG-DOJ-AT-01045132 at -137 (discussing
).
45
Ex. 28, Dep. of
at 170:14-18.
46
Ex. 28, Dep. of
at 179:2-4. Id.
47
See Appendix, documents 13 and 20.
48
Ex. 29, Ltr. from J. Elmer, Feb. 25, 2022.
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considers once under investigation by the government. No legal authority extends the scope of
the protection so far.
For each code-named project document identified in the Appendix, the Court should find
Google has failed to put forward sufficient evidence to substantiate its withholding or substantial
redactions on the basis of privilege. To the extent the Court determines certain claims are
substantiated, Plaintiffs respectfully request that the Court order the production of any portions
of the documents that do not contain privileged material.
III.
The Court Should Review In Camera Certain Documents Google Has Improperly
Clawed Back as Privileged
Additionally, Plaintiffs request that the Court review the remaining documents in the
Appendix, 49 all of which were produced previously by Google and later clawed back.
A. Google Habitually Engages in Clawbacks of Responsive Documents, Often Multiple
Times for the Same Document
Throughout the pre-complaint investigation, Google clawed back many documents it had
produced. In certain cases, this occurred only after the evidentiary value of the documents
became clear to Google, such as during depositions. In total, Google has clawed back over 4900
documents. Nine clawbacks occurred during pre-complaint investigative depositions, when
witnesses were pressed on the substance of the documents. Seven of the documents identified in
the Appendix 50 have been clawed back by Google at least twice and reproduced with different
degrees of redactions.
Extending its pre-complaint practices to this litigation, just last week, Google requested
Plaintiffs sequester or destroy over 1500 documents, almost all of which Google produced to the
49
See, Appendix, documents 2, 3, 7, 10, 16, 21.
50
See Appendix, identifying documents clawed back multiple times.
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United States in 2020 or 2021. This recent round of clawbacks included a document quoted in
the Amended Complaint, 51 as well as a document used (without objection) as an exhibit in a
deposition that occurred more than eighteen months ago. 52
B. The Court Should Review the Sample of Clawed Back Documents Identified in the
Appendix
As all of the documents identified in the Appendix have been clawed back at one time or
another, Plaintiffs’ ability to articulate fully their challenge to Google’s claims of privilege is
limited. Suffice it to say, however, that Plaintiffs believe that in camera review would allow the
Court to quickly assess Google’s claims, consistent with the procedure set forth in paragraph 12
of the Protective Order and this Court’s practices. Cf. Harrison, 2019 U.S. Dist. LEXIS 86589, at
*7 (describing in camera review of an exemplar set of 32 purportedly privileged documents).
Notably, while many of the privilege log entries for these documents include claims of
attorney-client privilege, no lawyer is identified in the metadata of these documents as an author
or recipient. Additionally, several of Google’s privilege log descriptions for these documents
appear materially deficient or call into question Google’s assertion of privilege. For example,
Google asserts substantial redactions to two non-lawyer employees’ work performance reviews
based on a purported attorney-client privilege or work product protection. 53 Other privilege log
entries claim attorney-client privilege for presentations and emails seeking or revealing legal
advice “regarding legal aspects of product development.” 54 Yet another claim of attorney-client
51
GOOG-DOJ-05782415 (quoted in paragraph 120 of the Amended Complaint (Dkt. 120)).
52
GOOG-DOJ-AT-00682026; Ex. 31, Dep. of
at 93:19-99:24, Ex. 4. Plaintiffs
are continuing to meet and confer with Google concerning the most recent set of clawbacks, and
as a result, these documents are not within the scope of the present motion.
53
See Appendix, privilege log entries for documents 13 and 17.
54
See Appendix, privilege log entries for documents 7, 20, and 21.
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privilege is based on an “[e]mail demonstrating legal advice of counsel regarding regulatory
issues,” without a claim that the email communication in fact sought or reflected legal advice
provided to Google employees with a need to know such advice. 55 Especially when placed
within the overall context of Google’s corporate practices and prior broad assertions of privilege,
these red flags in Google’s privilege logs suggest “that at least some of the information contained
in the documents may be subject to disclosure,” justifying in camera inspection. Brown Univ.,
2012 U.S. Dist. LEXIS 194805, at *9. At a minimum, Plaintiffs believe Google’s redactions of
these documents are likely overbroad, such that the Court should exercise its “broad discretion to
determine whether a privilege is properly asserted” via in camera review. Christian Coalition,
178 F.R.D. at 461. Plaintiffs believe such review will allow the Court to expeditiously evaluate
Google’s claims of privilege and issue an order requiring the production of the non-privileged
portions of the Appendix documents.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court review in camera
the documents identified in the Appendix and order Google to produce each document, with
appropriate redactions only if necessary.
55
See Appendix, privilege log entry for document 1.
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Dated: May 19, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ David M. Teslicko
DAVID M. TESLICKO
ALVIN H. CHU
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-0077
Fax: (202) 616-8544
Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA 23219
Telephone: (804) 692-0485
Facsimile: (804) 786-0122
Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
26
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