Page 1 PageID#
EXHIBIT 2Page 2 PageID#
Liberty Square Building
450 5th Street, N.W.
Washington, DC
April 6, Via Email (julie.elmer@freshfields.com)
Via Email (frubinstein@wsgr.com)
Julie Elmer, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW, 10th Floor
Washington, DC
Franklin Rubinstein, Esq.
Wilson Sonsini Goodrich & Rosati
1700 K Street NW, Fifth Floor
Washington, DC
Re:
Civil Investigative Demand Nos. 30120 and 30471: Privilege Claims and
Insufficient Privilege Log Entries
Dear Julie and Franklin:
I write to address certain topics regarding privilege claims that Alphabet has asserted to
the Antitrust Division (“the Division”) in response to Civil Investigative Demand Nos. and 30471 (“the CIDs”). First, the Division is concerned that Alphabet’s privilege claims with
respect to documents produced for Business Council (“BC”) and Ads and Commerce (“ACM”)
meetings are overly broad. The Division requests that Alphabet produce all non-privileged
portions of documents relating to BC or ACM meeting materials concerning any Advertising
Technology Product, including any links contained in those materials, no later than April 27,
2021. Second, many of Alphabet’s privilege log entries, including the log entries relating to
Project Jedi Blue, are too vague and lack sufficient information to support Alphabet’s privilege
assertions. The Division invites Alphabet to make any revisions to its privilege logs by providing
the required level of detail, to the extent Alphabet intends to do so, by April 27, 2021. I address
each of these topics in more detail below.
I.
BC and ACM Documents
Alphabet has claimed broadly that certain documents prepared for BC and ACM
meetings are privileged in their entirety because they reflect attorney-client communications. For
example, Alphabet recently clawed back GOOG-DOJ-09094988, an email related to a BC
meeting concerning Project Jedi Blue, in its entirety and claimed that document links imbedded
within GOOG-DOJ-09094988 are also privileged in their entirety under attorney-client privilege.
As you are aware, having asserted claims of privilege, Alphabet bears the burden of
presenting “sufficient facts to establish the privilege.” See Bartholdi Cable Co., Inc. v. FCC, 1Page 3 PageID#
F.3d 274, 280 (D.C. Cir. 1997) (quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).
Attorney-client communications are “privileged only if they constitute legal advice, or tend
directly or indirectly to reveal the substance of a client confidence.” Alexander v. FBI, F.R.D. 102, 110-11 (D.D.C. 1998) (quoting United States v. Defazio, 899 F.2d 626, 635 (7th Cir.
1990)). Communications dealing with “business matters, management decisions or business
advice are not protected by the [attorney-client] privilege.” Boca Investerings Partnership v.
Unites States, 31 F. Supp. 2d 9, 11 (D.D.C. 1998) (citation omitted). Where a company
employee is an in-house attorney, but also has responsibilities outside the legal sphere, that
employee’s advice is protected only upon a “clear showing” that the employee “gave it in a
professional legal capacity.” In re Sealed Case, 737 F.2d at 99.
Instruction 10 in the CIDs requires Alphabet to “[p]roduce all non-privileged portions of
any responsive document (including non-privileged or redacted attachments) for which a
privilege claim is asserted.” The Division requests that Alphabet produce all non-privileged
portions of documents relating to BC or ACM meeting materials concerning any Advertising
Technology Product, including any links contained in those materials, no later than April 27,
2021.
II.
Insufficient Privilege Log Entries
Many of Alphabet’s privilege log entries are too vague or lack sufficient information to
support Alphabet’s privilege assertions. For example, counsel for Alphabet provided a privilege
log entry on March 31, 2021 for a document previously produced by Alphabet but subsequently
clawed back (originally produced as GOOG-DOJ-09094988 to -991; later identified as GGPL1052250688). The privilege description field for this log entry states, in its entirety: “Email
containing and reflecting legal advice of counsel regarding regulatory issues.” See e-mail from
Stuart Baimel, WSGR, to John Hogan, DOJ (Mar. 31, 2021, 11:47 am ET). This phrase provides
insufficient information for the Division to assess Alphabet’s asserted claims and suggests an
attenuated communication that may or may not be privileged. The log entries for the documents
linked within GOOG-DOJ-09094988 to -991 are similarly deficient. See e-mail from Stuart
Baimel, WSGR, to John Hogan, DOJ (Mar. 31, 2021, 5:12 pm ET). Similarly vague and
insufficient entries are pervasive across Alphabet’s privilege logs.
Most corporate decisions and discussions in some way “reflect advice of counsel.” As
such, the use of a phrase of this type appears to seek to shield potentially unprivileged
documents. If Alphabet means transmitting or forwarding a communication from an individual
identified as an attorney representing Alphabet (as opposed to an individual with a law degree
acting in a business capacity) and the communication satisfies all of the other elements necessary
to support a claim of privilege, Alphabet’s privilege logs should so indicate. Alphabet’s privilege
logs do not provide sufficient detail to assess whether communications involving in-house
counsel “constitute legal advice, or tend directly or indirectly to reveal the substance of a client
confidence.” See Alexander v. FBI, 186 F.R.D. at 110-11.
Alphabet’s privilege log entries are also insufficient with respect to identifying withheld
document links. As previously discussed, the Division understands that Alphabet is producing
2Page 4 PageID#
responsive documents that are associated with a document link found in an email. But Alphabet
has failed to provide certain information required by CID Instruction 10.a. with respect to
document links withheld on the basis of privilege. For example, in GOOG-DOJ-10497038, the
Division cannot determine if Alphabet has asserted privilege for meeting materials associated
with the document links “deck here” and “full notes here” because Alphabet’s privilege logs do
not contain information with parent document control numbers as required by Instruction 10.a. If
Alphabet claims privilege over a document connected to a document link, Alphabet should
provide the parent document control number of the document containing the link consistent with
Instruction 10.a.
The Division continues to review Alphabet’s privilege logs, but we wanted to draw your
attention to these threshold issues that constrain the Division’s consideration of Alphabet’s
privilege assertions. The Division invites Alphabet to make any revisions to its privilege logs to
provide the required level of detail, to the extent Alphabet intends to do so, by April 27, 2021.
Please let me know if you have any questions.
Sincerely,
/s/
John J. Hogan
Trial Attorney
Antitrust Division
U.S. Department of Justice
3
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PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 284-4 Filed 07/17/23 Page 1 of 4 PageID# 2786
EXHIBIT 2
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Case 1:23-cv-00108-LMB-JFA Document 284-4 Filed 07/17/23 Page 2 of 4 PageID# 2787
Liberty Square Building
450 5th Street, N.W.
Washington, DC 20001
April 6, 2021
Via Email (julie.elmer@freshfields.com)
Via Email (frubinstein@wsgr.com)
Julie Elmer, Esq.
Freshfields Bruckhaus Deringer LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
Franklin Rubinstein, Esq.
Wilson Sonsini Goodrich & Rosati
1700 K Street NW, Fifth Floor
Washington, DC 20006
Re:
Civil Investigative Demand Nos. 30120 and 30471: Privilege Claims and
Insufficient Privilege Log Entries
Dear Julie and Franklin:
I write to address certain topics regarding privilege claims that Alphabet has asserted to
the Antitrust Division (“the Division”) in response to Civil Investigative Demand Nos. 30120
and 30471 (“the CIDs”). First, the Division is concerned that Alphabet’s privilege claims with
respect to documents produced for Business Council (“BC”) and Ads and Commerce (“ACM”)
meetings are overly broad. The Division requests that Alphabet produce all non-privileged
portions of documents relating to BC or ACM meeting materials concerning any Advertising
Technology Product, including any links contained in those materials, no later than April 27,
2021. Second, many of Alphabet’s privilege log entries, including the log entries relating to
Project Jedi Blue, are too vague and lack sufficient information to support Alphabet’s privilege
assertions. The Division invites Alphabet to make any revisions to its privilege logs by providing
the required level of detail, to the extent Alphabet intends to do so, by April 27, 2021. I address
each of these topics in more detail below.
I.
BC and ACM Documents
Alphabet has claimed broadly that certain documents prepared for BC and ACM
meetings are privileged in their entirety because they reflect attorney-client communications. For
example, Alphabet recently clawed back GOOG-DOJ-09094988, an email related to a BC
meeting concerning Project Jedi Blue, in its entirety and claimed that document links imbedded
within GOOG-DOJ-09094988 are also privileged in their entirety under attorney-client privilege.
As you are aware, having asserted claims of privilege, Alphabet bears the burden of
presenting “sufficient facts to establish the privilege.” See Bartholdi Cable Co., Inc. v. FCC, 114
1
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Case 1:23-cv-00108-LMB-JFA Document 284-4 Filed 07/17/23 Page 3 of 4 PageID# 2788
F.3d 274, 280 (D.C. Cir. 1997) (quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).
Attorney-client communications are “privileged only if they constitute legal advice, or tend
directly or indirectly to reveal the substance of a client confidence.” Alexander v. FBI, 186
F.R.D. 102, 110-11 (D.D.C. 1998) (quoting United States v. Defazio, 899 F.2d 626, 635 (7th Cir.
1990)). Communications dealing with “business matters, management decisions or business
advice are not protected by the [attorney-client] privilege.” Boca Investerings Partnership v.
Unites States, 31 F. Supp. 2d 9, 11 (D.D.C. 1998) (citation omitted). Where a company
employee is an in-house attorney, but also has responsibilities outside the legal sphere, that
employee’s advice is protected only upon a “clear showing” that the employee “gave it in a
professional legal capacity.” In re Sealed Case, 737 F.2d at 99.
Instruction 10 in the CIDs requires Alphabet to “[p]roduce all non-privileged portions of
any responsive document (including non-privileged or redacted attachments) for which a
privilege claim is asserted.” The Division requests that Alphabet produce all non-privileged
portions of documents relating to BC or ACM meeting materials concerning any Advertising
Technology Product, including any links contained in those materials, no later than April 27,
2021.
II.
Insufficient Privilege Log Entries
Many of Alphabet’s privilege log entries are too vague or lack sufficient information to
support Alphabet’s privilege assertions. For example, counsel for Alphabet provided a privilege
log entry on March 31, 2021 for a document previously produced by Alphabet but subsequently
clawed back (originally produced as GOOG-DOJ-09094988 to -991; later identified as GGPL1052250688). The privilege description field for this log entry states, in its entirety: “Email
containing and reflecting legal advice of counsel regarding regulatory issues.” See e-mail from
Stuart Baimel, WSGR, to John Hogan, DOJ (Mar. 31, 2021, 11:47 am ET). This phrase provides
insufficient information for the Division to assess Alphabet’s asserted claims and suggests an
attenuated communication that may or may not be privileged. The log entries for the documents
linked within GOOG-DOJ-09094988 to -991 are similarly deficient. See e-mail from Stuart
Baimel, WSGR, to John Hogan, DOJ (Mar. 31, 2021, 5:12 pm ET). Similarly vague and
insufficient entries are pervasive across Alphabet’s privilege logs.
Most corporate decisions and discussions in some way “reflect advice of counsel.” As
such, the use of a phrase of this type appears to seek to shield potentially unprivileged
documents. If Alphabet means transmitting or forwarding a communication from an individual
identified as an attorney representing Alphabet (as opposed to an individual with a law degree
acting in a business capacity) and the communication satisfies all of the other elements necessary
to support a claim of privilege, Alphabet’s privilege logs should so indicate. Alphabet’s privilege
logs do not provide sufficient detail to assess whether communications involving in-house
counsel “constitute legal advice, or tend directly or indirectly to reveal the substance of a client
confidence.” See Alexander v. FBI, 186 F.R.D. at 110-11.
Alphabet’s privilege log entries are also insufficient with respect to identifying withheld
document links. As previously discussed, the Division understands that Alphabet is producing
2
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Case 1:23-cv-00108-LMB-JFA Document 284-4 Filed 07/17/23 Page 4 of 4 PageID# 2789
responsive documents that are associated with a document link found in an email. But Alphabet
has failed to provide certain information required by CID Instruction 10.a. with respect to
document links withheld on the basis of privilege. For example, in GOOG-DOJ-10497038, the
Division cannot determine if Alphabet has asserted privilege for meeting materials associated
with the document links “deck here” and “full notes here” because Alphabet’s privilege logs do
not contain information with parent document control numbers as required by Instruction 10.a. If
Alphabet claims privilege over a document connected to a document link, Alphabet should
provide the parent document control number of the document containing the link consistent with
Instruction 10.a.
The Division continues to review Alphabet’s privilege logs, but we wanted to draw your
attention to these threshold issues that constrain the Division’s consideration of Alphabet’s
privilege assertions. The Division invites Alphabet to make any revisions to its privilege logs to
provide the required level of detail, to the extent Alphabet intends to do so, by April 27, 2021.
Please let me know if you have any questions.
Sincerely,
/s/
John J. Hogan
Trial Attorney
Antitrust Division
U.S. Department of Justice
3
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