United States et al v. Google LLC Document 284: Response, Attachment 3

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

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

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EXHIBIT
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Phillip Burton Federal Building
450 Golden Gate Avenue
Room 10-San Francisco, CA 94102-
January 18, Via email (julie.elmer@freshfields.com)
Julie Elmer, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW, 10th Floor
Washington, DC Re:
Civil Investigative Demand Nos. 30120, 30471, and
Dear Julie:
I write again regarding Alphabet, Inc.’s (“Alphabet”) deficient document production and
privilege log entries. Alphabet’s continued reliance on unsupported privilege assertions has
adversely impacted the Division’s investigation of Alphabet’s conduct with respect to
advertising technology.
As you know, the Division has challenged over 180,000 deficient privilege log entries
and improperly clawed back documents through multiple communications over a period of more
than a year. Underscoring the deficiencies in Alphabet’s privilege review process, Alphabet has
produced more than 50,000 documents that were previously withheld, in whole or in part, on the
basis of privilege or work product claims in response to those challenges. While we appreciate
Alphabet’s initial efforts to address the substantial deficiencies with Alphabet’s privilege
assertions, Alphabet should not have withheld those documents in the first place, and Alphabet
should not continue to withhold documents for which Alphabet does not have a proper basis to
assert privilege or work product protection.
The Division reiterates its requests that Alphabet withdraw all unsupported privilege
assertions and correct both its productions and privilege logs.
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Alphabet’s Repeated Clawbacks
Alphabet has produced, clawed back as inadvertently produced, produced again, and
clawed back again as “inadvertently produced” 31 documents.1 For example:

GGPL-AT-0026669: Alphabet’s purported justification for a second clawback was:
“When the document was clawed back the first time, the review team was unaware that
Project Banksy was a remedy analysis undertaken in response to an active government
investigation and in anticipation of litigation.”2 That Alphabet’s privilege review team
could have been “unaware” of the status of Project Banksy—a project over which
Alphabet has made broad and sweeping privilege and work product claims—is belied by
Alphabet’s written representations and its representative’s sworn confirmation that nine
outside counsel and nine in-house counsel worked on or were aware of the project. 3 That
Alphabet’s privilege review team was not aware—not merely at the time of production
but “[w]hen the document was clawed back the first time”—of a remedies project of
which eighteen attorneys were aware is strong evidence of the unreasonableness of
Alphabet’s privilege review process.

GGPL-AT-0026991: Alphabet claims that its privilege review team “was unaware that
Project Stonehenge and Project SingleClick were remedy analyses undertaken in
response to active government investigations and in anticipation of litigation.”Alphabet’s written representations to the Division about these two projects as confirmed
by its representative’s sworn testimony state that ten outside counsel and nine in-house
counsel were involved in Project Stonehenge and that eight outside counsel and nine inhouse counsel were involved in Project SingleClick.5 It cannot be the case that Alphabet
took “reasonable steps to prevent disclosure” of this and related clawed back documents
when nineteen attorneys were involved in Project Stonehenge and seventeen attorneys
were involved in Project SingleClick yet Alphabet’s privilege review team was left
“unaware” that the projects were “in response to active government investigations and
litigation.”

GGPL-1050011529, GGPL-1050011567, GGPL-2022042095, GGPL-2022042258, GGPL-3070514376, GGPLAT-0000499, GGPL-AT-0012057, GGPL-AT-0013688, GGPL-AT-0014895, GGPL-AT-0022013, GGPL-AT0026596, GGPL-AT-0026647, GGPL-AT-0026669, GGPL-AT-0026713, GGPL-AT-0026716, GGPL-AT0026766, GGPL-AT-0026829, GGPL-AT-0026920, GGPL-AT-0026959, GGPL-AT-0026991, GGPL-AT0027179, GGPL-AT-0027180, GGPL-AT-0027226, GGPL-AT-0027272, GGPL-AT-0027316, GGPL-AT0027361, GGPL-AT-0029550. In addition, Alphabet has made multiple clawbacks of documents with Bates
numbers GOOG-DOJ-03329973, GOOG-DOJ-06588656, GOOG-DOJ-12949396, and GOOG-DOJ-15215193 for
which the Division is unable to identify a corresponding privilege log number.
J. Elmer Ltr. to B. Nakamura, May 18, 2021 Attachment at 3.
J. Elmer Ltr. to B. Nakamura and J. Hogan, Feb. 25, 2022 at 4-5; Alphabet 30(b)(6) Dep. 201:17-202:13, Feb. 28,
2022.
J. Elmer Ltr. to B. Nakamura, May 18, 2021 Attachment at 17.
J. Elmer Ltr. to B. Nakamura and J. Hogan, Feb. 25, 2022 at 2-3; Alphabet 30(b)(6) Dep. 181:15-22, 145:6-19.
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Alphabet has waived any arguable claim of privilege with respect to each of these documents
that were repeatedly clawed back.
Waiver Documents
The Division previously identified a set of documents as to which Alphabet had not
sufficiently established a claim of privilege (the “Waiver Documents”).6 Alphabet has not met its
burden of showing that it “took reasonable steps to prevent disclosure.”7 For example,
Alphabet’s written representation as to the document described in privilege log entry GGPL-AT0026520 claims that when the document was initially produced “the review team was unaware
that Project Stonehenge was a remedy analysis undertaken in response to active government
investigations and in anticipation of litigation.”8 As explained above, nineteen attorneys working
for or retained by Alphabet were involved with Project Stonehenge and the disclosure of that
document for the single reason that the privilege review team was simply “unaware” of the status
of Project Stonehenge is flatly unreasonable.9 In addition, Alphabet claims with respect to the
document with Bates number GOOG-DOJ-AT-02116313 that its privilege review team was
“unaware” at the time of production that “Project Quantize was a request for legal advice and inhouse counsel’s response.”10 Yet, as Alphabet represented to the Division in writing, ten of its inhouse counsel were involved in or aware of the project, which purportedly related to “privacy
concerns and GDPR.”11 More troublingly, for all of the Wavier Documents that were clawed
back once, Alphabet had represented to the Division at the time of their initial production that the
documents at issue were “not fully privileged” or “reassessed for privilege.”12 That Alphabet
specifically examined these documents for privileged content and nevertheless produced them
confirms that Alphabet failed to take reasonable steps to prevent disclosure. These are just a few
examples of the inadequacy of Alphabet’s justifications for its clawbacks and the lack of
reasonable steps Alphabet has taken to prevent disclosure of privileged and work product
materials.
B. Nakamura Ltr. to J. Elmer, Apr. 4, 2022 at 4-5.
Williams v. D.C., 806 F. Supp. 2d 44, 49 (D.D.C. 2011).
J. Elmer Ltr. to B. Nakamura, May 18, 2021 Attachment at 13.
Notably, Alphabet claims that “the Division was on notice that documents relating to Project Stonehenge are
produced by the work product doctrine and/or attorney-client privilege,” J. Elmer Ltr. to B. Nakamura, May 18,
2021 Attachment at 13, but that claim is inconsistent with the testimony provided by Alphabet employee
on August 11, 2021, about the scope of Project Stonehenge and the fact that one aspect of the
project is related to potential pricing changes,
Dep. 197:1-23, Aug. 11, 2021. Alphabet has waived
privilege and work product claims over
testimony and thus at least part of Project Stonehenge by
failing to even attempt to claw back or address this part of
testimony, which proceeded during the
deposition without objection or instruction not to answer. The Division made Alphabet aware of this waiver on
February 28, 2022, seven months later, and Alphabet’s counsel claimed “we’ll just have to take that up at a later
time,” but has failed, in the ten months since that statement, to do so.
J. Elmer Ltr. to B. Nakamura, May 18, 2021 Attachment at 7.
J. Elmer Ltr. to B. Nakamura and J. Hogan, Feb. 25, 2022 at 5.
E.g., Elmer Ltr., July 6, 2021 (“The .zip file contains 2,240 documents from Group D custodians that were
reassessed for privilege”); Elmer Ltr, Aug. 9, 2021 (detailing “replacement productions” of those “inadvertently
disclosed” and “documents that were determined not to be fully privileged”); Elmer Ltr. Aug. 9, 2021 (detailing
“[c]ertain Group A-C custodians’ documents that were determined not to be fully privileged during the privilege log
process”).
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Alphabet Must Remedy Significant and Systematic Defects in Alphabet’s Privilege
Logs
Alphabet’s privilege logs continue to have significant and systematic defects. Alphabet
should either correct its inadequate privilege logs or correct its production to include the
documents for which adequate privilege log entries were not provided.
Nearly a year ago, as part of its challenges to more than 100,000 individual
privilege log entries, the Division noted systematic deficiencies in Alphabet’s privilege log
descriptions.13 The Division provided many examples of entries that suffered from the same
category of deficiency such as: boilerplate and cursory descriptions about “legal advice of” an
unnamed “counsel regarding business development” or “regarding AdTech”;14 failure to identify
the specific litigation or regulatory investigation underlying a privilege or work product claim as
required by CID Instruction 10(a);15 and improperly redacted business information.Rather than revising its privilege log entries suffering from these specifically identified,
often boilerplate, deficiencies, Alphabet chose to “decline[] to identify other log entries not
listed” by privilege log number “that purportedly suffer from the deficiencies alleged,” and
refused to re-review or revise these categories of log entries.Privilege Log Deficiencies Remain in Recent New Productions
Alphabet’s recent productions continue to have inadequate privilege logs and
unsupported privilege assertions. CID Instruction 10(a) requires each privilege log entry to
contain, among other things, the “date of the document,” “the anticipated litigation for any workproduct claim and the underlying privilege claim if subject to a joint-defense or common-interest
agreement,” and “a description of the document’s subject matter sufficiently detailed to enable
the Department to assess the privilege claim and the facts relied upon to support that claim.” In
addition, as Alphabet has acknowledged,18 CID Instruction 10(c) requires “[o]n the log and the
legend” a “list [of] all attorneys acting in a legal capacity with the designation ESQ after their
name.”
Disappointingly, Alphabet’s latest privilege log fails to even provide the “date of the
document” withheld or identify the “competition counsel” whose purported legal advice the
redacted portion of a 2,003 page spreadsheet would “reveal[].”19 The omission of these basic
details impede the Division’s ability to assess the validity of Alphabet’s privilege and work
B. Nakamura Ltr. to J. Elmer, Jan 18, 2022 at 7-15.
Id. at 8-9.
Id. at 10; notably, this problem continues in many entries; for example, GGPL-AT-0010619, GGPL-AT-0010955,
GGPL-AT-0010956, GGPL-AT-0010957, GGPL-AT-0011492, GGPL-AT-0012549, GGPL-AT-0013488, GGPL1370153654, GGPL-AT-0021806, GGPL-AT-0026356 (notably, this entry fails to identify the outside counsel who
provided legal advice and does not identify the category of legal advice provided).
Id. at 11-12.
J. Elmer Ltr. to B. Nakamura, Feb. 8, 2022 at 6.
J. Elmer Ltr. to B. Nakamura, Mar. 8, 2022 at 2.
Alphabet Inc. Privilege Log, Vol. 20, Dec. 22, 2022 (GGPL-AT-0034623).
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product claims and run afoul of not only CID Instructions 10(a) and 10(c) but also well-settled
caselaw.20 Indeed, Alphabet’s vague reference to “product reporting requirements,” which omit
mention of any specific regulation, statute, anticipated or actual litigation, or even legal doctrine,
cannot support a valid privilege assertion. This is just one example of many systemic problems.
Many of Alphabet’s recently produced privilege log entries suffer from these types of
deficiencies.Alphabet Has Impeded the Division’s Investigation
Alphabet’s improper privilege and work product claims have impeded the Division’s
investigation.
Alphabet’s Belated Productions and Improper Instructions Not to Answer
Alphabet belatedly produced tens of thousands of previously withheld and redacted
documents after the completion of all investigative depositions. This deprived the Division of the
ability to question certain Alphabet employees about critical documents. Alphabet has added to
the burden of its delayed productions by repeatedly preventing the Division from learning
crucial, unprivileged facts with improper instructions not to answer questions during depositions,
including refusing to permit a top executive,
, to
respond to a question about a basic unprivileged fact during
deposition: the identities of
regulatory inquires that form the basis for a broad work product claim over a single project.22 By
preventing the Division from taking sworn testimony on
awareness and
understanding of the specific regulatory inquires that justified a project for which was one of
only two Alphabet employees “who initiated the project,”23 Alphabet has improperly prevented
the Division from assessing the validity of its privilege claims. As another example, Alphabet’s
counsel improperly instructed Alphabet’s corporate representative not to answer a question about
the mere existence of an Alphabet project that was related to Project Banksy on the basis of
scope, which is in direct contravention of 15 U.S.C. § 1312(i)(7).Alphabet’s Representations
Alphabet has also repeatedly made representations to the Division that were not accurate.
For example, Alphabet withheld hundreds of documents on the basis of its representation that
E.g., Alexander v. FBI, 186 F.R.D. 102, 106 (D.D.C. 1998), Loftin v. Bande, 258 F.R.D. 31, 35 (D.D.C. 2009),
Kettell v. Hall, No. 08CIV.0052HBDFE, 2008 WL 2971802, at *1 (S.D.N.Y. July 31, 2008); see also Transito
Miranda v. Mahard Egg Farm, Inc., No. 4:19-CV-00092, 2019 WL 5190685, at *5 (E.D. Tex. Oct. 15, 2019).
E.g., GGPL-AT-0034602 (omitting the name of the attorney who purportedly provided the “legal strategy”
“reflect[ed]” in the document and failing to explain how “contract pricing” was not merely a business issue); GGPLAT-0034603 (failing to identify the specific anticipated litigation at issue and explain how a “[f]inancial model” was
properly withheld in full).
Dep. of
243:4-243:14, Oct. 28, 2021 (Alphabet’s counsel taking the position that “the names
of these specific regulatory inquiries are privileged information for which
has a right to refuse to
answer any question.”
J. Elmer Ltr. to R. Karr, Oct. 24, 2021 at 3.
Alphabet 30(b)(6) Dep. 225:18-226:16, Feb. 28, 2022 (issuing an instruction not to answer on the basis that a
business project was, in Alphabet’s counsel’s view, “beyond the scope of the CID.”).
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was a
practicing attorney whose sole involvement supported withholding those documents, in whole or
in part. The Division had to confirm, under oath, that
had not been a practicing
attorney and that knew—and so did Alphabet’s “internal legal team”—that
had
not “practiced law since 2011.”25 Compounding the unreasonableness and flaws in Alphabet’s
privilege review process, despite Alphabet’s legal department’s awareness of the non-practicing
status of
a high-level Alphabet employee who reports directly to Alphabet’s Senior
Vice President and Chief Business Officer, Philippe Schindler,26 it was the Division’s efforts
alone that led to the realization
was not a practicing attorney. Multiplying the
frustration to the Division’s investigation, Alphabet did not produce any documents it had falsely
claimed were withheld on the basis of
status as a practicing, active attorney until
after the Division sent a letter requesting the production of these documents. These improperly
withheld documents were not available for
CID deposition and the Division was
unable to depose
on these documents.
As further evidence of the unreasonableness of Alphabet’s privilege review process, in
correcting the privilege log entries relating to documents withheld on the sole basis of
legal advice, Alphabet revised certain privilege log entries by substituting the name
for
but leaving the remainder of each entry, word-for-word,
the same. In attempting to explain its misrepresentation, Alphabet claimed only that “these
appear to mistakenly attribute the legal advice (or request for legal advice)” to
but
provided no explanation of how its privilege review team could have failed to list
despite
name being listed directly in the documents.28 Despite all of the Division’s efforts
regarding
there appear to still be documents that have not been produced that list
as a basis for the privilege or work product claim.Alphabet’s counsel also provided incorrect information on several important projects
about which the Division sought information and testimony and about which Alphabet had raised
broad, and in some cases absolute, privilege and work product claims. On September 14, 2021,
Alphabet’s counsel provided a letter in response to certain specifications of CID No. 30769 that
contained incomplete and inaccurate information as confirmed under oath by Alphabet’s
corporate representative.30 On October 4, 2021, Alphabet’s counsel provided another letter in
response to the same CID that also contained inaccurate information as confirmed under oath by
Alphabet’s corporate representative.31 More than four months after that letter, and only three
days before the deposition of its corporate representative, Alphabet’s counsel provided a letter
that purported to “correct counsel’s letters of September 14, 2021 and October 4, 2021.”
G. Nierlich Ltr. to J. Elmer, Nov. 9, 2021 (quoting Dep. of
, 83:13-17, 244:17-245:4, Oct. 19,
2021).
Dep. of
86:12-15, Oct. 19, 2021.
B. Nakamura Ltr. to J. Elmer, Jan. 18, 2022 (citing GGPL-AT-0018120, GGPL-AT-0018097, GGPL-AT0018054).
J. Elmer Ltr. to B. Nakamura, Mar. 8, 2022 at 3.
E.g., GGPL-1060025882, GGPL-1080064567, GGPL-1100066597, GGPL-1100126801, GGPL-1100142572,
GGPL-1100155831.
J. Elmer Ltr. to R. Karr, Sept. 14, 2021; Alphabet 30(b)(6) Dep. 61:8-21, Feb. 28, 2022.
J. Elmer Ltr. to R. Karr, Oct. 4, 2021; Alphabet 30(b)(6) Dep. 67:14-68:4, Feb. 28, 2022.
J. Elmer Ltr. to J. Hogan & B. Nakamura, Feb. 25, 2022 at 1.
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Despite the Division’s CID specification asking about a narrow set of projects for which
Alphabet had withheld documents and for which its employees were instructed not to provide
testimony on the basis of privilege and work product claims, Alphabet provided inaccurate
information to the Division for months, impeding its investigation.
Further Privilege Log Deficiencies
Alphabet frequently cites a “Privacy Working Group”33 and other multi-member
groups—without identifying any individual attorneys—in support of its privilege claims. As nonattorneys, such as administrative staff or business employees may work in those groups,
Alphabet must provide more detailed entries and identify the attorney(s) whose legal advice
adequately supports a privilege or work product assertion. Notably, in your March 8, 2022, letter,
Alphabet agreed to conduct “further investigation to determine the source of the legal advice,
e.g., through interviews of the author of the document or statement, to the extent possible.”34 If
Alphabet has still failed to provide replacement privilege log entries identifying the individual
attorney whose legal advice supports privilege and work product claims, the Division must
conclude that Alphabet is unable to identify any such attorney. If this is not the case—for
example, if Alphabet’s further investigation is ongoing—please state that in writing and
specifically identify any relevant privilege log entries.
There appear to be several documents that have been produced with redactions but for
which no corresponding privilege log entry exists.35 Please identify the privilege log entries for
these documents and confirm that privilege log entries have been provided for all redacted
documents.
There are several privilege log entries that correspond to documents that appear to relate
to business, not legal, issues and advice that are improperly redacted.36 Other documents appear
to have pretextual requests for legal advice and do not involve the provision of any legal
advice.***

E.g., GGPL-AT-0020956, GGPL-1050142607, GGPL-1400122100, GGPL-1390108529, GGPL-1390123333.
J. Elmer Ltr. to B. Nakamura, Mar. 8, 2022 at 2-3.
GOOG-DOJ-AT-02640381, GOOG-DOJ-00012843, GOOG-DOJ-AT-02113022, GOOG-DOJ-AT-02640381.
GGPL-1050011529, GGPL-1120936990, GGPL-1050010833, GGPL-1151612661, GGPL-AT-0034573, GGPLAT-0021215, GGPL-AT-0026829.
GGPL-1090313688, GGPL-1120936990.
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The Division reiterates its requests that Alphabet withdraw all unsupported privilege
assertions and correct both its productions and privilege logs, without further delay.
Sincerely,
/s/ Brent K. Nakamura
Brent K. Nakamura
Trial Attorney
Antitrust Division
U.S. Department of Justice
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