Page 1 PageID#
HEATHER MILLIGAN
TELEPHONE
FACSIMILE
(202) 223-(202) 379-
E-MAIL: hmilligan@paulweiss.com
July 11,
By Email
Katherine Clemons
Michael Wolin
Trial Attorney
Antitrust Division
U.S. Department of Justice
450 Fifth Street, NW, Suite Washington, D.C. Katherine.clemons@usdoj.gov
Michael.wolin@usdoj.gov
Re:
United States et al. v. Google LLC, No. 1:23-cv-00108-LMB-JFA (E.D.
Va.)
Dear Katherine and Michael:
I write on behalf of Google LLC (“Google”) to memorialize the parties’
June 30, 2023 meet and confer regarding the United States’ Objections to Google’s First
Set of Requests for Admissions (“RFAs”) and to address the United States’ responses to
the same. I also write regarding Google’s RFPs Nos. 41, 42 and 43.
Google’s First Set of Requests for Admissions (“RFAs”)
The parties discussed the United States’ objections to Google’s RFAs Nos.
1 and 2. Google’s RFA No. 1 asks the United States to “[a]dmit that, during the Damages
Period, the Federal Agency Advertisers did not purchase ‘open web display advertising’
EXHIBIT 2Page 2 PageID#
Katherine Clemons
directly from Google.” Google’s RFA No. 2 asks the United States to “[a]dmit that,
during the Damages Period, the Federal Agency Advertisers did not pay Google directly
for ‘open web display advertising.’” We noted that the United States objected to the
terms “directly,” “purchase,” and “pay” as used in RFAs Nos. 1 and 2. You argued that
the word “directly” implicates the legal concept of “direct purchaser” in the antitrust
context, that the word is a legal term of art, and thus that the RFAs call for legal
conclusions. We explained that, as used in RFAs Nos. 1 and 2, to purchase from or pay
Google “directly” means without an intermediary, such as an ad agency. The United
States continued to contend the term was calling for a legal conclusion, and stated it
would stand on its objection absent an alternative definition from Google. Google points
the United States to definition of “directly” found in The Oxford English Dictionary
(“OED”), which is “[w]ithout the intervention of a medium or agent; immediately, by a
direct process or mode.”Google also explained the terms “purchase” and “pay” as used in RFAs
Nos. 1 and 2. We explained that we are using the term “purchase” as a verb meaning to
acquire something, whether it is a service or a good, by paying for it, and the term “pay”
as a verb meaning the literal act of exchanging money or using a credit card for a good or
service. You argued that the terms were still ambiguous, and requested Google’s
definitions in writing. Google directs the United States to the OED again, in which the
word “purchase” is defined as “[t]o acquire in exchange for payment in money or an
equivalent; to buy. Now the usual sense[,]”2 and the word “pay” is defined as “[t]o give,
transfer, or hand over (money, or its equivalent) in return for goods or services, or in
discharge of an obligation; to deliver (a sum or amount owed).”We note that Rule 36 specifically authorizes a request for admission
relating to “facts, the application of law to fact, or opinions about either.” Fed. R. Civ. P.
36(a)(1)(A). These RFAs seek admissions related to facts, in light of the ordinary
meaning of the words we have provided you above. Even if they involve any application
of law to fact in light of the direct purchaser concept in the antitrust law, they are proper
RFAs. Indeed, the Court already suggested that “a request for admission[] and a couple
of quickie interrogatories should probably flesh [this question] out rather quickly.” Apr.
28, 2023 Hr’g Tr. at 21–23. In short, the purpose of requests for admission is to narrow
the issues for trial, and these RFAs could do just that. See Erie Ins. Prop. & Cas. Co. v.
Johnson, 272 F.R.D. 177, 184 (S.D.W. Va. 2010).
The responses the United States served on July 7, 2023, are facially
deficient. Despite having met and conferred for over an hour to address the United
States’ objections to the words “directly,” “pay,” and “purchase,” the United States
continues to insist that these words are vague and ambiguous. To the contrary, these
words are clear and are to be understood in their ordinary and common usage. United
https://www-oed-com.nyli.idm.oclc.org/view/Entry/53307?redirectedFrom=directly#eid
https://www-oed-com.nyli.idm.oclc.org/view/Entry/154832?rskey=E4wVkP&result=2&is
Advanced=false#eid
https://www-oed-com.nyli.idm.oclc.org/view/Entry/139172?rskey=owbHYJ&result=2# eid
EXHIBIT Page 3 PageID#
Katherine Clemons
States v. Virkutis, No. 83 C 1758, 1987 WL 7806, at *5 (N.D. Ill. Mar. 11, 1987) (holding
that where a term has a common meaning capable of interpretation by common sense, a
party must respond to the request with a direct and specific response). Under any
interpretation of Google’s RFAs and consistent with Rule 36, the United States must
answer them.
In its July 7 responses, the United States also raised, for the first time, an
objection to the phrase “purchase ‘open web display advertising’ directly from Google.”
This objection is untimely, and thus cannot serve as a basis for refusing to answer.
E.D.V.A. L.R. 26(C). On the merits, the objection is unfounded. The phrase is not vague
or ambiguous; the definition provided in Google’s RFAs incorporates the United States’
own definition as used in its Complaint. That is, for purposes of the RFAs the “term
‘open web display advertising’ . . . shall have the meaning ascribed to it in the operative
Complaint filed by the United States, namely ‘the sale of display ads on the ‘open web,’
meaning websites whose inventory is sold through ad tech intermediaries that offer
inventory from multiple websites.’’ Am. Compl. p.16 n.4.”
In addition, the United States’ response to RFA 3 is not responsive; this
RFA asks the United States to “Admit that during the Damages Period, the Federal
Agency Advertisers paid Agencies for the use of Ad Tech Products offered by Google.”
The United States’ response discusses “paid media plans” and states that the “costs of any
executed paid media buys, including the fees charged by any ad tech providers, are borne
exclusively by the FAAs.” But the request makes no mention of media plans or how the
FAAs account for expenses, i.e., their costs. The RFA asks the United States to indicate
whether the FAAs paid their ad agencies, rather than Google, not whether or how the
FAAs account for such costs.
Please confirm whether the United States will respond to Google’s RFAs
Nos. 1 and 2, and provide a response to RFA 3 that comports with Rule 36, now that we
have provided definitions for the terms you claimed were ambiguous. If the United
States is refusing to respond, please provide the legal basis for such refusal.
Google’s Requests for Production (“RFPs”)
Next, the parties discussed Google’s RFPs Nos. 41, 42 and 43.
With respect to these documents, the United States stated that its
objections were based on the attorney-client privilege, work product protection, the
deliberative process privilege, 15 U.S.C. § 1313(c) and 15 U.S.C. § 18a(h). The United
States also indicated that, with respect to RFP No. 42, the request sought documents not
in its possession, custody or control because Google’s acquisition of AdMob was
investigated by the Federal Trade Commission.
With respect to RFP No. 41, the United States provided several details
regarding its investigation of Google’s acquisition of AdMeld, which took place roughly
twelve years ago, including that:
EXHIBIT 2Page 4 PageID#
Katherine Clemons
- it issued Civil Investigative Demands (“CIDs”) as part of its
investigation, including to third parties;
- it possesses a list of all of the parties that were issued CIDs as part
of the investigation;
- it collected documents from both parties to the transaction and
third-parties related to the CID requests;
- it conducted interviews of parties and third parties, but did not take
depositions of any third parties;
it conducted depositions as part of the investigation of Google and
AdMeld;
- it estimated that, as part of the investigation, it corresponded with
less than 30 third parties.
Google’s counsel also asked several questions that DOJ was unable to
answer, including:
- if the information in its possession from third parties was
substantive in nature;
- the precise number of third parties it corresponded with as part of
the investigation;
- the precise volume of materials still in DOJ’s possession.
Based on the parties’ discussion, Google understands that the following
materials responsive to RFP 41 are in the United States’ possession:
- the CIDs issued as part of the investigation, including those issued
to third parties;
- a list of all of the parties that were issued CIDs as part of the
investigation;
- documents collected from third parties pursuant to the CID
requests;
- interview memoranda and notes taken of the interviews conducted
with Google, AdMeld, and third parties as part of the investigation;
- deposition transcripts of the depositions taken of Google and
AdMeld witnesses as part of the investigation.
Please confirm that the United States will produce these responsive
materials. If the United States intends to withhold any of these materials, please state the
basis for withholding the documents, including any privileges that the United States
contends that apply, and why. To the extent you are withholding on the basis of
confidentiality pursuant to 15 U.S.C. § 1313(c), please explain whether you have
contacted the third parties whose documents are in your possession to ascertain whether
they consent to sharing the materials produced as part of the investigation.
EXHIBIT 2Page 5 PageID#
Katherine Clemons
With respect to RFP No. 42, the United States stated that Google’s
acquisition of AdMob was not investigated by the Department of Justice’s Antitrust
Division. The United States was unsure if it possessed materials responsive to this
request, but indicated it likely did not. Please confirm whether or not the Antitrust
Division has documents responsive to RFP 42, and, if so, whether it will be producing
those documents.
With respect to RFP No. 43, the United States said that it had collected
non-privileged documents from Microsoft and Xandr. Google’s counsel asked several
questions that DOJ was unable to answer, including:
- the extent to which it was able to disclose details about
investigation with Google;
- whether it had a list of third parties it spoke to regarding the
investigation;
- whether it possessed correspondence with third parties related to
the investigation;
- whether any memoranda or notes prepared for the investigation
were shared outside the Department of Justice.
Google seeks the following materials responsive to Google’s RFP No. concerning the United States’ investigation of Microsoft’s acquisition of Xandr:
- the CIDs issued as part of the investigation, including those issued
to third parties;
- a list of all of the parties that were issued CIDs as part of the
investigation;
- documents collected from third parties pursuant to the CID
requests;
- correspondence with any third parties involved in the investigation;
- interview memoranda and notes taken of the interviews conducted
with Microsoft and Xandr, and third parties as part of the
investigation;
- transcripts of any deposition taken as part of the investigation;
- any memoranda or notes related to the investigation and shared
outside of the Department of Justice Antitrust Division.
Please confirm that the United States will produce these materials. If the
United States intends to withhold any of these materials, please state the basis for
withholding the documents, including any privileges that the United States contends
apply, and why. To the extent you are withholding on the basis of confidentiality
pursuant to 15 U.S.C. § 1313(c), please explain whether you have contacted the
third-parties whose documents are in your possession to ascertain whether they consent to
sharing the materials produced as part of the investigation.
EXHIBIT 2Page 6 PageID#
Katherine Clemons
Google’s Second Set of Interrogatories
Last, the parties discussed the United States’ objections to Google’s
Interrogatories Nos. 14, 15, 16, and 17. Google explained that it is not seeking
information related to damages calculations, but instead seeking factual information
about the specific advertising campaigns underlying the FAAs’ damages claims. The
United States said it is gathering information in response to Google’s interrogatories, and
will respond by the discovery deadline and supplement its responses as necessary
thereafter. The United States informed Google it would gather information regarding
“campaigns” as that term is understood by the FAAs, which it believed to be a broader
definition of “campaign” than that provided by Google as part of its interrogatories
because it would not include details at the creative level.
Google noted that the United States’ had objected to Interrogatory No. because the question included a part (a) and (b), which the United States contended
should be counted as two interrogatories. Google reminded the United States that its
Interrogatory No. 9 contains a part (a), (b), and (c), and that, to the extent the United
States seeks to stand on its objection, Google would insist that both parties be held to the
same standard. The United States confirmed it would not hold Google to a different
standard that it held itself to. Google asks that the United States provide its position on
this issue in writing so that the parties can seek discovery with a common understanding.
Sincerely,
/s/ Heather C. Milligan
Heather C. Milligan
EXHIBIT 2
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 292-2 Filed 08/04/23 Page 1 of 6 PageID# 3439
HEATHER MILLIGAN
TELEPHONE
FACSIMILE
(202) 223-7465
(202) 379-4960
E-MAIL: hmilligan@paulweiss.com
July 11, 2023
By Email
Katherine Clemons
Michael Wolin
Trial Attorney
Antitrust Division
U.S. Department of Justice
450 Fifth Street, NW, Suite 800
Washington, D.C. 20530
Katherine.clemons@usdoj.gov
Michael.wolin@usdoj.gov
Re:
United States et al. v. Google LLC, No. 1:23-cv-00108-LMB-JFA (E.D.
Va.)
Dear Katherine and Michael:
I write on behalf of Google LLC (“Google”) to memorialize the parties’
June 30, 2023 meet and confer regarding the United States’ Objections to Google’s First
Set of Requests for Admissions (“RFAs”) and to address the United States’ responses to
the same. I also write regarding Google’s RFPs Nos. 41, 42 and 43.
Google’s First Set of Requests for Admissions (“RFAs”)
The parties discussed the United States’ objections to Google’s RFAs Nos.
1 and 2. Google’s RFA No. 1 asks the United States to “[a]dmit that, during the Damages
Period, the Federal Agency Advertisers did not purchase ‘open web display advertising’
EXHIBIT 2
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 292-2 Filed 08/04/23 Page 2 of 6 PageID# 3440
Katherine Clemons
2
directly from Google.” Google’s RFA No. 2 asks the United States to “[a]dmit that,
during the Damages Period, the Federal Agency Advertisers did not pay Google directly
for ‘open web display advertising.’” We noted that the United States objected to the
terms “directly,” “purchase,” and “pay” as used in RFAs Nos. 1 and 2. You argued that
the word “directly” implicates the legal concept of “direct purchaser” in the antitrust
context, that the word is a legal term of art, and thus that the RFAs call for legal
conclusions. We explained that, as used in RFAs Nos. 1 and 2, to purchase from or pay
Google “directly” means without an intermediary, such as an ad agency. The United
States continued to contend the term was calling for a legal conclusion, and stated it
would stand on its objection absent an alternative definition from Google. Google points
the United States to definition of “directly” found in The Oxford English Dictionary
(“OED”), which is “[w]ithout the intervention of a medium or agent; immediately, by a
direct process or mode.”1
Google also explained the terms “purchase” and “pay” as used in RFAs
Nos. 1 and 2. We explained that we are using the term “purchase” as a verb meaning to
acquire something, whether it is a service or a good, by paying for it, and the term “pay”
as a verb meaning the literal act of exchanging money or using a credit card for a good or
service. You argued that the terms were still ambiguous, and requested Google’s
definitions in writing. Google directs the United States to the OED again, in which the
word “purchase” is defined as “[t]o acquire in exchange for payment in money or an
equivalent; to buy. Now the usual sense[,]”2 and the word “pay” is defined as “[t]o give,
transfer, or hand over (money, or its equivalent) in return for goods or services, or in
discharge of an obligation; to deliver (a sum or amount owed).”3
We note that Rule 36 specifically authorizes a request for admission
relating to “facts, the application of law to fact, or opinions about either.” Fed. R. Civ. P.
36(a)(1)(A). These RFAs seek admissions related to facts, in light of the ordinary
meaning of the words we have provided you above. Even if they involve any application
of law to fact in light of the direct purchaser concept in the antitrust law, they are proper
RFAs. Indeed, the Court already suggested that “a request for admission[] and a couple
of quickie interrogatories should probably flesh [this question] out rather quickly.” Apr.
28, 2023 Hr’g Tr. at 21–23. In short, the purpose of requests for admission is to narrow
the issues for trial, and these RFAs could do just that. See Erie Ins. Prop. & Cas. Co. v.
Johnson, 272 F.R.D. 177, 184 (S.D.W. Va. 2010).
The responses the United States served on July 7, 2023, are facially
deficient. Despite having met and conferred for over an hour to address the United
States’ objections to the words “directly,” “pay,” and “purchase,” the United States
continues to insist that these words are vague and ambiguous. To the contrary, these
words are clear and are to be understood in their ordinary and common usage. United
https://www-oed-com.nyli.idm.oclc.org/view/Entry/53307?redirectedFrom=directly#eid
https://www-oed-com.nyli.idm.oclc.org/view/Entry/154832?rskey=E4wVkP&result=2&is
Advanced=false#eid
3
https://www-oed-com.nyli.idm.oclc.org/view/Entry/139172?rskey=owbHYJ&result=2# eid
1
2
EXHIBIT 2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 292-2 Filed 08/04/23 Page 3 of 6 PageID# 3441
Katherine Clemons
3
States v. Virkutis, No. 83 C 1758, 1987 WL 7806, at *5 (N.D. Ill. Mar. 11, 1987) (holding
that where a term has a common meaning capable of interpretation by common sense, a
party must respond to the request with a direct and specific response). Under any
interpretation of Google’s RFAs and consistent with Rule 36, the United States must
answer them.
In its July 7 responses, the United States also raised, for the first time, an
objection to the phrase “purchase ‘open web display advertising’ directly from Google.”
This objection is untimely, and thus cannot serve as a basis for refusing to answer.
E.D.V.A. L.R. 26(C). On the merits, the objection is unfounded. The phrase is not vague
or ambiguous; the definition provided in Google’s RFAs incorporates the United States’
own definition as used in its Complaint. That is, for purposes of the RFAs the “term
‘open web display advertising’ . . . shall have the meaning ascribed to it in the operative
Complaint filed by the United States, namely ‘the sale of display ads on the ‘open web,’
meaning websites whose inventory is sold through ad tech intermediaries that offer
inventory from multiple websites.’’ Am. Compl. p.16 n.4.”
In addition, the United States’ response to RFA 3 is not responsive; this
RFA asks the United States to “Admit that during the Damages Period, the Federal
Agency Advertisers paid Agencies for the use of Ad Tech Products offered by Google.”
The United States’ response discusses “paid media plans” and states that the “costs of any
executed paid media buys, including the fees charged by any ad tech providers, are borne
exclusively by the FAAs.” But the request makes no mention of media plans or how the
FAAs account for expenses, i.e., their costs. The RFA asks the United States to indicate
whether the FAAs paid their ad agencies, rather than Google, not whether or how the
FAAs account for such costs.
Please confirm whether the United States will respond to Google’s RFAs
Nos. 1 and 2, and provide a response to RFA 3 that comports with Rule 36, now that we
have provided definitions for the terms you claimed were ambiguous. If the United
States is refusing to respond, please provide the legal basis for such refusal.
Google’s Requests for Production (“RFPs”)
Next, the parties discussed Google’s RFPs Nos. 41, 42 and 43.
With respect to these documents, the United States stated that its
objections were based on the attorney-client privilege, work product protection, the
deliberative process privilege, 15 U.S.C. § 1313(c) and 15 U.S.C. § 18a(h). The United
States also indicated that, with respect to RFP No. 42, the request sought documents not
in its possession, custody or control because Google’s acquisition of AdMob was
investigated by the Federal Trade Commission.
With respect to RFP No. 41, the United States provided several details
regarding its investigation of Google’s acquisition of AdMeld, which took place roughly
twelve years ago, including that:
EXHIBIT 2
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 292-2 Filed 08/04/23 Page 4 of 6 PageID# 3442
Katherine Clemons
4
- it issued Civil Investigative Demands (“CIDs”) as part of its
investigation, including to third parties;
- it possesses a list of all of the parties that were issued CIDs as part
of the investigation;
- it collected documents from both parties to the transaction and
third-parties related to the CID requests;
- it conducted interviews of parties and third parties, but did not take
depositions of any third parties;
it conducted depositions as part of the investigation of Google and
AdMeld;
- it estimated that, as part of the investigation, it corresponded with
less than 30 third parties.
Google’s counsel also asked several questions that DOJ was unable to
answer, including:
- if the information in its possession from third parties was
substantive in nature;
- the precise number of third parties it corresponded with as part of
the investigation;
- the precise volume of materials still in DOJ’s possession.
Based on the parties’ discussion, Google understands that the following
materials responsive to RFP 41 are in the United States’ possession:
- the CIDs issued as part of the investigation, including those issued
to third parties;
- a list of all of the parties that were issued CIDs as part of the
investigation;
- documents collected from third parties pursuant to the CID
requests;
- interview memoranda and notes taken of the interviews conducted
with Google, AdMeld, and third parties as part of the investigation;
- deposition transcripts of the depositions taken of Google and
AdMeld witnesses as part of the investigation.
Please confirm that the United States will produce these responsive
materials. If the United States intends to withhold any of these materials, please state the
basis for withholding the documents, including any privileges that the United States
contends that apply, and why. To the extent you are withholding on the basis of
confidentiality pursuant to 15 U.S.C. § 1313(c), please explain whether you have
contacted the third parties whose documents are in your possession to ascertain whether
they consent to sharing the materials produced as part of the investigation.
EXHIBIT 2
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Case 1:23-cv-00108-LMB-JFA Document 292-2 Filed 08/04/23 Page 5 of 6 PageID# 3443
Katherine Clemons
5
With respect to RFP No. 42, the United States stated that Google’s
acquisition of AdMob was not investigated by the Department of Justice’s Antitrust
Division. The United States was unsure if it possessed materials responsive to this
request, but indicated it likely did not. Please confirm whether or not the Antitrust
Division has documents responsive to RFP 42, and, if so, whether it will be producing
those documents.
With respect to RFP No. 43, the United States said that it had collected
non-privileged documents from Microsoft and Xandr. Google’s counsel asked several
questions that DOJ was unable to answer, including:
- the extent to which it was able to disclose details about
investigation with Google;
- whether it had a list of third parties it spoke to regarding the
investigation;
- whether it possessed correspondence with third parties related to
the investigation;
- whether any memoranda or notes prepared for the investigation
were shared outside the Department of Justice.
Google seeks the following materials responsive to Google’s RFP No. 43
concerning the United States’ investigation of Microsoft’s acquisition of Xandr:
- the CIDs issued as part of the investigation, including those issued
to third parties;
- a list of all of the parties that were issued CIDs as part of the
investigation;
- documents collected from third parties pursuant to the CID
requests;
- correspondence with any third parties involved in the investigation;
- interview memoranda and notes taken of the interviews conducted
with Microsoft and Xandr, and third parties as part of the
investigation;
- transcripts of any deposition taken as part of the investigation;
- any memoranda or notes related to the investigation and shared
outside of the Department of Justice Antitrust Division.
Please confirm that the United States will produce these materials. If the
United States intends to withhold any of these materials, please state the basis for
withholding the documents, including any privileges that the United States contends
apply, and why. To the extent you are withholding on the basis of confidentiality
pursuant to 15 U.S.C. § 1313(c), please explain whether you have contacted the
third-parties whose documents are in your possession to ascertain whether they consent to
sharing the materials produced as part of the investigation.
EXHIBIT 2
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Katherine Clemons
6
Google’s Second Set of Interrogatories
Last, the parties discussed the United States’ objections to Google’s
Interrogatories Nos. 14, 15, 16, and 17. Google explained that it is not seeking
information related to damages calculations, but instead seeking factual information
about the specific advertising campaigns underlying the FAAs’ damages claims. The
United States said it is gathering information in response to Google’s interrogatories, and
will respond by the discovery deadline and supplement its responses as necessary
thereafter. The United States informed Google it would gather information regarding
“campaigns” as that term is understood by the FAAs, which it believed to be a broader
definition of “campaign” than that provided by Google as part of its interrogatories
because it would not include details at the creative level.
Google noted that the United States’ had objected to Interrogatory No. 17
because the question included a part (a) and (b), which the United States contended
should be counted as two interrogatories. Google reminded the United States that its
Interrogatory No. 9 contains a part (a), (b), and (c), and that, to the extent the United
States seeks to stand on its objection, Google would insist that both parties be held to the
same standard. The United States confirmed it would not hold Google to a different
standard that it held itself to. Google asks that the United States provide its position on
this issue in writing so that the parties can seek discovery with a common understanding.
Sincerely,
/s/ Heather C. Milligan
Heather C. Milligan
EXHIBIT 2
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