Page 1 PageID#
EXHIBIT 6Page 2 PageID#
Liberty Square Building
450 5th Street, N.W.
Washington, DC
August 5, Martha Goodman, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
2001 K Street, NW
Washington, DC 20006-Re:
United States, et al. v. Google LLC, No. 1:23-cv-108 (E.D. Va.)
Dear Martha:
We received your July 31, 2023 letter purporting to memorialize our July 26 discussion.
We have serious concerns about your citation to three USPS and CMS documents on
page 3 of your letter as support for your position. We have sent a notice under paragraph
12(c) of the Modified Protective Order that these are privileged documents which were
inadvertently produced. As you know, paragraph 12(d) of the same order affirmatively
requires that if either party “becomes aware that it is in receipt of information or material
that it . . . reasonably should know is privileged” then it must “stop reading” the material,
notify the producing party, and destroy the material. (Dkt. 203, ¶ 12(d).) You were aware
of the United States’ assertion of privilege over communications between the Department
of Justice and Federal agencies occurring in December 2022 through January regarding digital advertising by Federal agencies from: (a) my June 9 letter (and attached
categorical privilege log), (b) the United States’ June 26 privilege log, and (c) our
discussion on July 26. These three documents are certainly included within the scope of
those privilege assertions. Using the content of these documents to dispute the United
States’ privilege claims in this manner is inconsistent with Google’s obligations under the
Modified Protective Order. The United States reserves the right to take any appropriate
action.
Regarding your arguments on the applicability of the attorney-client privilege, your
position ignores the role of the Justice Department in this circumstance. “Except as
otherwise authorized by law, the conduct of litigation in which the United States, an
agency, or officer thereof is a party, or is interested, and securing evidence therefor, is
reserved to officers of the Department of Justice, under the direction of the Attorney
General.” 28 U.S.C. § 516; see also 28 U.S.C. § 519; 5 U.S.C. § 3106 (restricting
employment of attorneys or counsel except Department of Justice by an “Executive
department”). By statute, the Department of Justice is specifically authorized and
required to enforce the antitrust laws, including through damages claims on behalf of the
United States when it is injured in its business or property. 15 U.S.C. § 4; 15 U.S.C.Page 3 PageID# § 15a. In the communications at issue, Department of Justice attorneys sought, and
Federal agencies provided, information for the purpose of aiding Department of Justice
attorneys in forming and providing legal advice as to whether those same Federal
agencies or others were injured by Google’s conduct, and therefore victims of cognizable
claims for damages under Section 4A of the Clayton Act. Additionally, to the extent your
position distinguishes between the Federal Agency Advertisers and other Federal
agencies on whose behalf damages claims ultimately were not asserted, such a distinction
does not alter the existence of an attorney-client relationship; indeed, the attorney-client
privilege applies to communications even with potential clients.
Moreover, your letter glosses over the United States’ assertion of work product protection
over these communications. The communications at issue were between attorneys
preparing for a potential lawsuit—made only three-to-four weeks before the filing of the
lawsuit—and Federal agencies with potential damages claims, certain of which were
ultimately asserted by the United States in the lawsuit. As Google has argued previously
in this case, communications such as these that would not have occurred but for the
anticipation of litigation are covered by the work product protection in full. (See Google’s
Mem. Opp. Mot. for In Camera Inspection, Dkt. 245, at 5 (work product protection
applies to analysis “undertaken because of and in response to active government
investigations”); 6/15/2023 Tr. at 32 (Google’s Counsel: “[H]e specifically testified,
these projects would not have been undertaken but for these government
investigations.”).) You call the privilege descriptions “boilerplate formulations,” but that
merely reflects that communications in this category are all privileged for the same
reasons—as we initially explained in our June 9 letter.
The cases cited in your letter do not speak to this specific situation, and several provide
clear support for the United States’ position. See, e.g., United States v. Booz Allen
Hamilton Inc., No. CCB-22-1603, 2022 WL 3921019, at *3 (D. Md. Aug. 31, 2022)
(“when the DOJ decided to file the present lawsuit . . . the DOJ clearly ‘became counsel’
to the NSA”); United States v. Amer. Tel. & Tel. Co., 86 F.R.D. 603, 628 (D.D.C. 1979)
(work product extends to materials shared between “two government agencies assisting
each other in a criminal or civil action”). Your citations to a previous version of the
Antitrust Division Manual no longer in effect similarly do not speak to this specific
situation; the portions you cite merely indicate that the specific circumstances of each
communication dictate whether these privileges apply.
Turning to your requests of the United States: We do not agree to produce privileged
documents. We see no justification for your inquiry into our document collection in
response to Google’s RFP No. 5, but, as a courtesy, we can confirm that all Antitrust
Division personnel working on the investigation preceding this litigation were required,
on an on-going basis and with periodic reminders and interim deadlines, to save certain
types of communications, including those at issue here, into a centralized Outlook
mailbox, from which documents were collected for production. Finally, we do not agree
2Page 4 PageID# to provide any privilege logs for documents exempted from logging by the ESI Order, to
which Google agreed and the Court ordered.
Sincerely,
/s/ Michael Wolin
Michael Wolin
Trial Attorney
3
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PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 305-6 Filed 08/18/23 Page 1 of 4 PageID# 4315
EXHIBIT 6
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Case 1:23-cv-00108-LMB-JFA Document 305-6 Filed 08/18/23 Page 2 of 4 PageID# 4316
Liberty Square Building
450 5th Street, N.W.
Washington, DC 20530
August 5, 2023
Martha Goodman, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
2001 K Street, NW
Washington, DC 20006-1047
Re:
United States, et al. v. Google LLC, No. 1:23-cv-108 (E.D. Va.)
Dear Martha:
We received your July 31, 2023 letter purporting to memorialize our July 26 discussion.
We have serious concerns about your citation to three USPS and CMS documents on
page 3 of your letter as support for your position. We have sent a notice under paragraph
12(c) of the Modified Protective Order that these are privileged documents which were
inadvertently produced. As you know, paragraph 12(d) of the same order affirmatively
requires that if either party “becomes aware that it is in receipt of information or material
that it . . . reasonably should know is privileged” then it must “stop reading” the material,
notify the producing party, and destroy the material. (Dkt. 203, ¶ 12(d).) You were aware
of the United States’ assertion of privilege over communications between the Department
of Justice and Federal agencies occurring in December 2022 through January 2023
regarding digital advertising by Federal agencies from: (a) my June 9 letter (and attached
categorical privilege log), (b) the United States’ June 26 privilege log, and (c) our
discussion on July 26. These three documents are certainly included within the scope of
those privilege assertions. Using the content of these documents to dispute the United
States’ privilege claims in this manner is inconsistent with Google’s obligations under the
Modified Protective Order. The United States reserves the right to take any appropriate
action.
Regarding your arguments on the applicability of the attorney-client privilege, your
position ignores the role of the Justice Department in this circumstance. “Except as
otherwise authorized by law, the conduct of litigation in which the United States, an
agency, or officer thereof is a party, or is interested, and securing evidence therefor, is
reserved to officers of the Department of Justice, under the direction of the Attorney
General.” 28 U.S.C. § 516; see also 28 U.S.C. § 519; 5 U.S.C. § 3106 (restricting
employment of attorneys or counsel except Department of Justice by an “Executive
department”). By statute, the Department of Justice is specifically authorized and
required to enforce the antitrust laws, including through damages claims on behalf of the
United States when it is injured in its business or property. 15 U.S.C. § 4; 15 U.S.C.
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 305-6 Filed 08/18/23 Page 3 of 4 PageID# 4317
§ 15a. In the communications at issue, Department of Justice attorneys sought, and
Federal agencies provided, information for the purpose of aiding Department of Justice
attorneys in forming and providing legal advice as to whether those same Federal
agencies or others were injured by Google’s conduct, and therefore victims of cognizable
claims for damages under Section 4A of the Clayton Act. Additionally, to the extent your
position distinguishes between the Federal Agency Advertisers and other Federal
agencies on whose behalf damages claims ultimately were not asserted, such a distinction
does not alter the existence of an attorney-client relationship; indeed, the attorney-client
privilege applies to communications even with potential clients.
Moreover, your letter glosses over the United States’ assertion of work product protection
over these communications. The communications at issue were between attorneys
preparing for a potential lawsuit—made only three-to-four weeks before the filing of the
lawsuit—and Federal agencies with potential damages claims, certain of which were
ultimately asserted by the United States in the lawsuit. As Google has argued previously
in this case, communications such as these that would not have occurred but for the
anticipation of litigation are covered by the work product protection in full. (See Google’s
Mem. Opp. Mot. for In Camera Inspection, Dkt. 245, at 5 (work product protection
applies to analysis “undertaken because of and in response to active government
investigations”); 6/15/2023 Tr. at 32 (Google’s Counsel: “[H]e specifically testified,
these projects would not have been undertaken but for these government
investigations.”).) You call the privilege descriptions “boilerplate formulations,” but that
merely reflects that communications in this category are all privileged for the same
reasons—as we initially explained in our June 9 letter.
The cases cited in your letter do not speak to this specific situation, and several provide
clear support for the United States’ position. See, e.g., United States v. Booz Allen
Hamilton Inc., No. CCB-22-1603, 2022 WL 3921019, at *3 (D. Md. Aug. 31, 2022)
(“when the DOJ decided to file the present lawsuit . . . the DOJ clearly ‘became counsel’
to the NSA”); United States v. Amer. Tel. & Tel. Co., 86 F.R.D. 603, 628 (D.D.C. 1979)
(work product extends to materials shared between “two government agencies assisting
each other in a criminal or civil action”). Your citations to a previous version of the
Antitrust Division Manual no longer in effect similarly do not speak to this specific
situation; the portions you cite merely indicate that the specific circumstances of each
communication dictate whether these privileges apply.
Turning to your requests of the United States: We do not agree to produce privileged
documents. We see no justification for your inquiry into our document collection in
response to Google’s RFP No. 5, but, as a courtesy, we can confirm that all Antitrust
Division personnel working on the investigation preceding this litigation were required,
on an on-going basis and with periodic reminders and interim deadlines, to save certain
types of communications, including those at issue here, into a centralized Outlook
mailbox, from which documents were collected for production. Finally, we do not agree
2
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Case 1:23-cv-00108-LMB-JFA Document 305-6 Filed 08/18/23 Page 4 of 4 PageID# 4318
to provide any privilege logs for documents exempted from logging by the ESI Order, to
which Google agreed and the Court ordered.
Sincerely,
/s/ Michael Wolin
Michael Wolin
Trial Attorney
3
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