Memorandum in Support re [311] MOTION for Protective Order re Rule 30(b)(6) Deposition filed by Google LLC. (Attachments: # (1) Exhibit A, # (2) Exhibit B)(Reilly, Craig)
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S MEMORANDUM IN SUPPORT OF
MOTION FOR A PROTECTIVE ORDER REGARDING
PLAINTIFFS’ RULE 30(B)(6) DEPOSITION NOTICE
The Department of Justice Antitrust Division, along with many of the State Plaintiffs, have
conducted a years-long investigation that afforded them one-way access to voluminous discovery
from Google. Duly complying with the government’s requests, Google produced nearly two
million documents and 31 witnesses for deposition during the investigation alone. After nearly
three and a half years of gathering information, Plaintiffs filed a complaint initiating the instant
action on January 24, 2023.
Discovery in this litigation began on March 27, 2023 and is set to close on September 8,
2023 according to the joint discovery plan submitted by the parties. See Jt. Proposed Discovery
Plan at 1-2 (March 28, 2023), ECF No. 87; Rule 16(b) Scheduling Or. (Mar. 31, 2023), ECF No.
94 (ordering parties’ joint discovery plan). Before entering the parties’ joint discovery plan, this
Court instructed the parties to “focus [their] attention on certain things” and emphasized that
“[parties are] not going to be able to turn over every grain of sand,” observing that the case’s issues Page 2 PageID#
were ones that “the parties have been contemplating and dealing with in various places for
extended periods of time.” Hearing Tr. (Mar. 24, 2023), ECF No. 70 at 18:7-12. In response to
Plaintiffs' discovery requests in this litigation, Google has produced nearly two million additional
documents and agreed to produce nine additional current and former employees for deposition.
Yet, despite a nearly three-and-a-half-year investigation and over four months of discovery
in this case, Plaintiffs waited until a month before the close of fact discovery to serve Google with
a sprawling 30(b)(6) deposition notice with over 200 (including subparts) broad and detailed topics
(the “Notice”), attached hereto as Exhibit A. Google served its objections to the Notice on
Plaintiffs August 14, 2023.
Google met and conferred with Plaintiffs on August 16, 2023 and twice on August 17,
2023 in an effort to narrow the scope of the Notice. The parties were able to reach an agreement
as to the total number of hours of 30(b)(6) deposition testimony on both sides, but they were not
able to reach agreement with respect to the number and scope of topics in the Notice, other than
the elimination of Topic Nos. 28-30.
Even taking into account the limited agreements Google and Plaintiffs were able to reach
with respect to hours and topics, the Notice taken in its entirety is unduly burdensome and
disproportionate to the needs of the case because it is duplicative of Plaintiffs’ other discovery
requests, overly broad, and not stated with sufficient particularity to permit Google to identify
corporate designees to provide the testimony requested. This is particularly the case in light of the
limited time remaining for fact discovery. To be clear, Google does not categorically refuse to
provide discovery in response to the Notice. However, by demanding that Google prepare
corporate designees to testify in detail concerning approximately 200 different topics and
subtopics, Plaintiffs at the eleventh hour are seeking discovery in the most burdensome and Page 3 PageID#
unreasonable manner possible. Google seeks relief from this Court in the form of a protective
order requiring Plaintiffs to withdraw their Notice without prejudice to reissue a Notice that is
proportional to the needs of the case. Independently, Google requests a protective order with
respect to the portions of the Notice that seek expert analysis1 or information protected by the
attorney client privilege or work product doctrine.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, litigants may obtain “discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
However, discovery in federal litigation is not limitless.
Any discovery sought must be
“proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id. A court “must limit the
frequency or extent of discovery otherwise allowed” if: (1) the discovery sought is cumulative or
duplicative, or can be obtained from some other source that is more convenient, less burdensome,
or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or (3) the proposed discovery is outside the scope permitted
by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
Rule 26(c) provides relief from discovery that exceeds the scope permitted by Rule
26(b)(1). Courts have broad discretion, for good cause shown, to “issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ.
The parties’ joint discovery plan (approved by the Court) provides a schedule for exchanging expert reports. Jt.
Proposed Disc. Plan, ECF No. 87. Page 4 PageID#
P. 26(c)(1); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (holding the courts have “broad
discretion ... to decide when a protective order is appropriate and what degree of protection is
required”). This discretion includes orders forbidding the requested discovery altogether, as well
as orders modifying the requested discovery. Fed. R. Civ. P. 26(c)(1)(A); Fonner v. Fairfax Cnty.,
415 F.3d 325, 331 (4th Cir. 2005) (holding that district court did not abuse its discretion in issuing
a protective order precluding an individual's deposition); Palmer v. Big Lots Stores, Inc., No. 3:14CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (striking overbroad or duplicative
30(b)(6) deposition topics).
ARGUMENT
Taken as a whole, the Notice does not pass muster under Rule 26. Putting aside the massive
amount of discovery collected during their multi-year investigation, Plaintiffs have had months in
this litigation to obtain the discovery sought in the Notice, and many of the topics in the Notice
are cumulative of existing discovery DOJ already has. By flouting this Court’s instructions to be
efficient in discovery, Plaintiffs now seek to foist on Google the undue burden of preparing
numerous corporate representatives to testify about hundreds of topics in the waning days of fact
discovery. Given the voluminous discovery Google has already produced (or is in the process of
producing) regarding the topics in the Notice and Plaintiffs’ ample opportunity to obtain discovery
on those topics in this litigation alone (including 9 depositions of current and former Google
employees, 76 requests for production, 17 interrogatories, and 28 requests for admission), the
burden of the Notice goes far beyond what is proportional to the needs of the case.
I.
The Court Should Require Plaintiffs to Withdraw their Notice.
With a total of four years of investigative and litigation discovery now under their belts,
Plaintiffs’ Notice – which seeks detailed 30(b)(6) testimony on approximately 200 different
complex topics and subtopics, with three weeks remaining in fact discovery – is unduly Page 5 PageID#
burdensome and disproportionate to the needs of the case. Banks v. Off. of Senate Sergeant-atArms, 222 F.R.D. 7, 19 (D.D.C. 2004) (granting protective order for overbroad 30(b)(6) topics and
ordering that plaintiffs “wipe the slate clean” to arrive at “a mutually agreeable listing of topics”).
In its breadth and detail, the Notice imposes an incredible burden on Google, and would require
the preparation of many different witnesses, in some cases on a single topic. In light of how much
discovery DOJ has already conducted in this case, a 30(b)(6) notice should be tailored to what is
actually necessary. Murphy v. Kmart Corp., 255 F.R.D. 497, 506 (D.S.D. 2009) (“sufficient
discovery has been produced in this case to allow [plaintiff] to narrow the focus of this inquiry.”).
For example, Topic 8 seeks testimony on data sourced from 13 separate databases.
Responding to this topic alone would require Google to prepare and defend multiple designees,
who themselves will have to canvas and interview dozens of engineers. See Declaration of
Alexander Bergersen (“Bergersen Decl.”), ¶ 6, attached hereto as Exhibit B. Similarly, Topic seeks testimony on each of the log-level datasets “produced or that will be produced in this
Litigation” and during the Investigation, including “the use of the information and data,” the
“sources of information from which data was pulled,” the “process of pulling” the data, and “the
definition of each field, variable, column, and/or value.” This topic would require Google to
prepare multiple witnesses on the entirety of the log-level data produced in the case, and including
every piece of associated minutiae. That is especially challenging because those datasets were
created to respond to requests for production from DOJ and are not maintained in the ordinary
course, which increases the burden of preparing a witness to testify.
By way of further illustration, Topic 17 requests testimony for the gamut of conduct alleged
in Plaintiffs’ complaint, potentially requiring a different designee for each of the 14 subtopics—
most of which Plaintiffs have already covered in their nearly 40 individual depositions of current Page 6 PageID#
and former Google employees. Between Topics 8, 9, and 17 alone, Google would need to gather
information from dozens of individuals in order to prepare multiple witnesses to provide testimony
as corporate representatives. See, e.g., Bergersen Decl., ¶ 6-7.
Other topics present yet additional challenges. Topic 1 contains a total of 37 subtopics and
sub-subtopics seeking testimony concerning completely disparate categories of information. For
example, Topic 1 purportedly seeks information regarding “accounting policies and procedures,”
but subtopic 1(j) has nothing to do with accounting policies and procedures, as it seeks testimony
about “AdX direct, Yavin, Ad Connector dual/hybrid ad server setups, and any other means
through which AdX submits bids to publishers that do not use DFP as their Publisher Ad Server.”
Similarly, topic 1(i) seeks broad testimony regarding Google’s performance forecasts and
evaluations for its display advertising products, including the “individuals or business units
involved, key metrics and goals, and financial targets.” Not only is this subtopic not about
“accounting policies and procedures,” but it would also require Google to prepare multiple
personnel responsible for each product. See Bergersen Decl., ¶ 3. The nine-year time period
covered by this Topic is also an issue: As Google has already explained in its supplemental
response to Plaintiffs’ Interrogatory No. 3, current Google Finance personnel lack familiarity with
product-level financial metrics covering the 2014-2016 period. Therefore, it is unlikely that
Google could, for instance, adequately prepare a witness to respond to Topics 1(g)-(i), and (l),
especially in light of the short window before the close of fact discovery. See id. Topic 1(k) does
not even specify the information sought, but merely seeks “information contained in the following
documents” and lists 11 Bates numbers corresponding to complex spreadsheets, which themselves
contain a multitude of data. It would be a monumental task to prepare multiple witnesses to testify
just regarding Topic 1, let alone the rest of the Notice. Page 7 PageID#
Topic 10 may appear on its face to be more focused because it seeks testimony regarding
a dataset for Google Ad Manager (GAM), but that is not the case. Google agreed to produce this
custom dataset, which does not exist in the ordinary course of business, in response to Plaintiffs’
Requests for Production. Plaintiffs requested that Google provide worldwide bid-level data
covering GAM auction queries received during the 35th, 36th, 37th, 38th, and 39th seconds of
each minute of the month of June 2023, as well as a second set of data covering queries received
on June 28, 2023. This dataset includes data associated with approximately 55 billion queries from
that time period. In order to prepare a witness for Topic 10(b), which requests “the percentages of
impressions in the dataset for which line items are ineligible to compete in GAM auctions for the
reasons listed…”, Google would need to analyze potentially thousands of line items associated
with each of these 55 billion queries and the reasons why they were ineligible to compete in the
GAM auction.
Topics 13 and 14 seek to require testimony on “Google’s measurement, evaluation and
understanding of the value of any data” and “Google’s processes for measuring and evaluating the
impact of the collection of data of any type on its business performance or processes.” These
topics fail to place any bounds on the data or business at issue. For example, the Notice does not
specify the type of data at issue, the sources of such data within Google, or the purpose for which
Google uses this data. The data in these topics are not even limited to the relevant products in this
litigation. Topic 13, for example, explicitly sweeps in other products like “Search, GMail,
YouTube, signed in with Google, etc.” And while Topic 14 lists some specific allegations, like
dynamic allocation and dynamic revenue share, the phrase “data of any type” and the word
“including” which the Notice defines as “including but not limited to” makes clear that this topic Page 8 PageID#
is not limited in any way. The breadth of subjects at issue is completely untethered from the claims
in this litigation.
Topics 15 and 16 seek to require testimony on how data is and has been passed between
any of Google’s products that facilitate display advertising—including but not limited to GAM,
DV360, and Google Ads—as well as testimony on “any datasets” accessible to or accessed by
those products.
Other than the connection to display advertising, the Notice provides no
discernible link to the conduct alleged in the complaint. Merely identifying and describing such
data—as Topics 15(a) and 16(a) seek—would be a tremendous burden for Google’s deponent. But
the topics seek further testimony on “[h]ow Google’s products, employees, and executive use that
data in the ordinary course of Google’s business,” which would itself require Google’s deponent
to investigate how Googlers past and present have designed and used products spanning the 13year period requested for Topics 15 and 16.
The Notice burdens Google with not only identifying, preparing, and defending numerous
corporate representatives to address its many overbroad topics, but also properly educating those
representatives so that they are able to respond to the many detailed subtopics. It is well established
that a corporation has an affirmative duty to “make a good-faith effort to designate persons with
knowledge of the the matter sought by the opposing party and to adequately prepare the corporate
representative[s] so that they may give complete, knowledgeable, and non-evasive answers in
deposition,” including beyond the designee’s personal knowledge.
United States v. B.C.
Enterprises, Inc., No. 2:08CV590, 2010 WL 11699777, at *1 (E.D. Va. Feb. 19, 2010). As
demonstrated above, that is simply not possible for Google to adequately do for this Notice as
currently drafted. Page 9 PageID#
On balance, these massive burdens are vastly disproportionate to Plaintiffs’ need for the
testimony sought in the Notice. Plaintiffs already have four years worth of discovery from Google
amounting to millions of documents and testimony from 40 current and former employees
(including one 30(b)(6) representative).
As discussed below, see infra § III, much of the
discovery Plaintiffs seek now is duplicative of the discovery Google has already provided or is in
the process of providing. Given the additional fact that Plaintiffs waited over four months into the
discovery period to issue such a burdensome Notice, the Court should find the Notice
disproportionate to the needs of the case and order Plaintiffs to withdraw it, or in the alternative
modify it. See, e.g., St. John Haney v. Kavoukjian, No. CV 2:19-2098-RMG, 2020 WL 12762510,
at *5 (D.S.C. Dec. 17, 2020) (granting protective order against 30(b)(6) deposition because
plaintiffs had “ample opportunity” to obtain information by discovery despite plaintiffs realizing
new information based on internet searches).
II.
Google Seeks a Protective Order Against Producing 30(b)(6) Testimony In
Response to Topics Not Stated With Reasonable Particularity.
Federal Rule of Civil Procedure 30 requires the noticing party to “include in its notice a
description with reasonable particularity [of] the matters for examination,” so that the other party
could “adequately prepare deponents.” B.C. Enterprises, 2010 WL 11699777, at *1; see also Fed.
R. Civ. P. 30(b)(6) (the party noticing the deposition must “describe with reasonable particularity
the matters for examination.”). Plaintiffs have not met this burden, because many of the topics in
the Notice are so vague, ambiguous, and broad that it is impossible for Google to identify witnesses
to properly prepare for and respond to the topics. Trustees of Bos. Univ. v. Everlight Elecs. Co.,
No. 12-CV-11935-PBS, 2014 WL 5786492, at *3 (D. Mass. Sept. 24, 2014) (“If the noticing party
Upon completion of the individual depositions of current and former Google employees noticed
in this action. Page 10 PageID#
does not describe the topics with sufficient particularity or if the topics are overly broad, the
responding party is subject to an impossible task.”).
Some of the data-related topics in the Notice are particularly egregious. For example, Topic
13 seeks testimony regarding “Google’s measurement, evaluation, and understanding of the value,
whether expressed as dollar amounts or some other metric, whether monetary or non-monetary
and whether measured by the quality, utility, or usefulness of any data, its bid, pricing, audience,
targeting, or related data by its executives, engineers, product managers, and employees.” Aside
from being nearly impossible to understand, Topic 13 appears to be seeking testimony on the
“value” of “any data” used for any purpose by Google. While the next sentence of Topic attempts to explain “for clarity,” the request is no less confusing or broad, as it states, “this includes
Google’s measurement, evaluation, and understanding of the value of any data, whether
considered alone or in conjunction with the other datasets…” (emphasis added). This request is so
broad as to be absurd. There could be hundreds of individuals that Google would need to consult
in order to prepare a witness (or witnesses) to testify to the “measurement, evaluation, and
understanding” of any data. See, e.g., Banks, 222 F.R.D. at 18–19 (finding a topic requesting “the
sum and substance of all conversations” with an employee impermissibly broad); Edelen v.
Campbell Soup Co., 265 F.R.D. 676, 684 (N.D. Ga. 2010) (sustaining objection to 30(b)(6) topic
that sought “the existence, description, nature, custody, condition, and location of any documents
or other tangible things that are relevant or are reasonably calculated to lead to the discovery of
admissible evidence.”); Trustees of Bos. Univ., 2014 WL 5786492, at *3 (holding topic seeking
“all facts related to the relationship” between two companies, among others, were overbroad and
did “not provide a basis upon which an individual or entity can reasonably determine what
information may or may not be responsive.”). Page 11 PageID#
Nor do the subparts provide any clarification. Because Topic 13 uses inclusive language
such as “whether considered alone or in conjunction with other datasets with the following
considerations,” the subparts do not limit the topic. In addition, the subparts themselves are worded
extremely broadly. For example, subpart 13(a) states “whether the joining, simultaneous use, or
any other linkage or association of the data with any other data or dataset increases, decreases, or
causes any change in the value, whether considered on a monetary or non-monetary basis.”
(emphasis added). Courts have found similar language “sufficiently broad and amorphous as to
run afoul” of Rule 30. Fed. Ins. Co. v. Delta Mech. Contractors, LLC, No. 11-048ML, 2013 WL
1343528, at *4 (D.R.I. Apr. 2, 2013) (“‘including but not limited to’ language in Rule 30(b)(6)
notices are patently overbroad and impossible to comply with.”) (internal citations omitted); TriState Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005) (“Listing several
categories and stating that the inquiry may extend beyond the enumerated topics defeats the
purpose of having any topics at all.”).
Similarly, Topic 14 seeks testimony regarding “Google’s processes for measuring and
evaluating the impact of the collection of data of any type on its business performance…”
(emphasis added). It is impossible to prepare a witness regarding the “impact” of “data of any
type” on a topic as broad as “business performance.” There are infinite ways to interpret the phrase
“impact” and “business performance,” let alone the purposefully overbroad inclusion of “data of
any type.” Topic 17 seeks testimony regarding the “nature, function, and operations” of different Ad Tech features, “including any data and algorithms utilized.” The phrase “nature,
function, and operations” fail to meet the reasonable particularity standard required by Rule
30(b)(6), as it encompasses nearly every aspect of these features. See, e.g., Kmart, 255 F.R.D. at
506 (defendant “could not reasonably designate and properly prepare a corporate representative” Page 12 PageID#
for a “broad line of inquiry” that included topics regarding “the corporate history” and “corporate
relationship” of four entities, and “the bankruptcy of [the parent company]”).
Given the overbreadth of these topics, it is not Google’s responsibility to guess or interpret
what Plaintiffs mean. See E3 Biofuels, LLC v. Biothane, LLC, No. 8:11CV44, 2013 WL 4400506,
at *3 (D. Neb. Aug. 15, 2013) (“Plaintiff cannot be left to guess about the information [noticing
party] wishes to obtain, and then open itself up to complaints that it failed to produce appropriate
individuals to testify.”); Murphy v. Kmart Corp., 255 F.R.D. 497, 506 (D.S.D. 2009) (“[I]t hardly
seems fair to expect [defendant] to interpret” an overbroad deposition topic.) (internal quotation
marks omitted). Google has met with Plaintiffs in an attempt to narrow or drop these topics, but
Plaintiffs so far have not modified any of them.
III.
Plaintiff’s Notice Includes Topics Duplicative of Other Discovery or
Inappropriate for Oral Testimony
Given the fast-approaching fact discovery deadline, the parties do not have time to waste
on inefficient and unproductive discovery. See, e.g., Tri-State Hosp. Supply Corp., 226 F.R.D. at
126 (holding that a 30(b)(6) deposition, “which by its nature can be time-consuming and
inefficient, be productive, and not simply an excuse to seek information that is already known”).
Courts have ruled against deposition topics that are inappropriate or inefficient for oral testimony,
such as topics that would require the deponent to catalog and memorize voluminous information.
See, e.g., Trustees of Bos. Univ., 2014 WL 5786492, at *4 (“Topic 22 asks the designated witness
to state, for each accused product, from 2006 to the present, the costs, expenses on an itemized
basis, gross profit margin, operating profit margin, incremental profit margin, and revenues. It also
asks the witness to identify all supporting documents. It is not reasonable to expect one or more
witnesses to remember and testify about every one of these facts.”) Page 13 PageID#
Many of the topics appear to be seeking information that are not appropriate and overly
burdensome for oral testimony because they would require Google witnesses to study and
remember voluminous and detailed information. These topics seek testimony identifying
numerous individuals, identifying documents, and explaining all aspects of voluminous datasets.
For example, Topic 1(h) seeks “[t]he identity (by Bates number or file numbers) of all final
versions of P&L statements.” Topic 6(b) seeks the “identification and operation of any algorithms,
processes, or source code.” Topic 7(e) seeks “[t]he identities, including by name and/or title, of
any Google employees or executives.” Topic 8 seeks the “definitions and topics regarding datasets
produced by Google in this Litigation” for 17 datasets. Topic 9(b) seeks “[t]he individual sources
of information from which data was pulled, extracted, copied.” Topic 9(d) seeks “[t]he definition
of each field, variable, column, and/or value in each dataset.” Topic 15(a) seeks the
“[i]dentification or description of the contents of [Google’s] data.” Topic 16 seeks the
“identification of any datasets.” And Topic 22 seeks the “identification and Google’s
understanding of terms of contracts, agreements, or arrangements.”
It would be impossible and inefficient for Google to prepare witnesses to testify regarding
such voluminous records, data, and be prepared on the identities of particular individuals and
executives. See, e.g., In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant
Prod. Liab. Litig., No. CV 17-MD-2775, 2018 WL 3079699, at *3 (D. Md. June 20, 2018) (holding
it is “hard to see how subpoenaing testimony from someone who can identify those people is any
more efficient than interrogatory requests to the same end.”); Parsons v. Columbia Gas
Transmission, LLC, No. 2:19-CV-00649, 2021 WL 5413675, at *2 (S.D.W. Va. Sept. 10, 2021)
(granting protective order as to topics seeking testimony about “the extent to which CGT has data”
and “data compilations”); U.S. ex rel. Smith v. Boeing Co., No. 05-1073-WEB, 2009 WL 2777278, Page 14 PageID#
at *8 n.16 (D. Kan. Aug. 27, 2009) (“Requiring Boeing to designate a corporate representative to
appear for a deposition to provide the names and addresses of witnesses is a waste of time and
money.”).
Moreover, none of these topics meet the “reasonable particularity” standard of 30(b)(6).
Merely listing documents or datasets Plaintiffs are interested in does not help Google understand
the topic, or how to prepare a witness about those voluminous documents and datasets. DOJ’s
deposition does not provide any information, for example, on how Google is to prepare witnesses
on Topics 1(k), 2(g), 3(b), or 5(c), which simply lists Bates numbers of various large, and complex
datasets or financial documents, with nothing more than the bare statement that DOJ is seeking
“information” about these documents. Further, some of these documents were produced in DOJ’s
Search case against Google. See Boeing, 2009 WL 2777278, at *8 n.16 (holding “when
voluminous documents extending over years are involved, an entity preparing Rule 30(b)(6)
witnesses must understand what is being requested” and “simply asking a party to provide
testimony concerning a 390-page contract or a 190-page manual does not satisfy the requirement
of reasonable particularity”).
Plaintiffs have had ample opportunity to seek, in more efficient and less burdensome ways,
the information they now request in the Notice. Including so many impractical and burdensome
topics in a 30(b)(6) deposition notice would require Google to prepare numerous witnesses
regarding various lists, data, and minutiae, who would not possibly be able to recite the information
accurately during a deposition. Kinetic Concepts, Inc. v. Convatec Inc., 268 F.R.D. 255, (M.D.N.C. 2010) (noticing party “had ample opportunity to obtain the information by discovery
in the action” including through interrogatory). Page 15 PageID#
Moreover, Plaintiffs already have much of the information requested. For example, Topic
11 seeks, among other things, “a list of the fields and types of data available” in certain datasets
produced by Google. Google has already provided such lists in its data productions. Top 10(a)
seeks testimony on why “one cannot infer that a remnant line item competed in the GAM auction
based solely on information in the inventory key value for a given ad query.” This highly technical
issue regarding data was answered by Google in a letter dated July 14. Having already provided
the information, Google should not have to also designate a witness to memorize and be able to
recite lists or the technical requirements of data. See, e.g., Palmer v. Big Lots Stores, Inc., No.
3:14-CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (striking certain deposition topics
because they are “covered” by interrogatories and requests for production); Banks, 222 F.R.D. at
19 (ordering plaintiff to re-draft 30(b)(6) topics to ensure that they are “meaningful exercises in
ascertaining information that has not been previously discovered or are necessary”); Kinetic
Concepts, 268 F.R.D. at 263 (finding a deposition topic unwarranted given the noticed party’s
interrogatory responses).
IV.
The Court Should Protect Google from Topics that Are Protected Under the
Attorney Work Product Doctrine and Attorney-Client Privilege or that Seek
Legal Conclusions or Expert Analysis.
Many of the topics in the Notice also pose privilege and work product issues, or appear to
seek testimony regarding legal conclusions or expert analysis. Such topics are improper. See
Novartis Pharms. Corp. v. Abbott Lab’ys, 203 F.R.D. 159, 163 (D. Del. 2001) (denying motion to
compel Rule 30(b)(6) deposition because topic regarding testing “done at the request of its
counsel” and “conducted in anticipation of identifiable litigation”); Boeing, 2009 WL 2777278, at
*7 (granting protective order regarding topic that requested information on “retrieval, search,
investigation, disclosure, and production of [defendant’s] records in this litigation”). Similarly, Page 16 PageID#
here, Topics 9(c) and 11(b) seek testimony about “[t]he process of pulling, assembling, and
quality-checking” datasets which were created for this litigation and do not exist in the ordinary
course of business. Topic 22 seeks information regarding “Google’s understanding of terms of
contracts, agreements, or arrangements” with the Federal Agency Advertisers. It would be
burdensome and infeasible for Google to prepare witnesses to testify regarding these topics without
divulging privileged information, at least without more targeted information regarding what DOJ
intends to ask on these topics.
In addition, other topics improperly seek testimony regarding legal conclusions and matters
requiring expert testimony. See In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D.
Kan. 1996) (granting protective order from 30(b)(6) topics asking “about facts supporting
numerous paragraphs of Xerox’s denials and affirmative defenses” as legal conclusions or expert
testimony); Parsons v. Columbia Gas Transmission, LLC, No. 2:19-CV-00649, 2021 WL
5413675, at *1 (S.D.W. Va. Sept. 10, 2021) (A “Rule 30(b)(6) deposition is not an appropriate
vehicle to ascertain a corporate party’s litigation positions.”). For example, Topic 18, seeks “all
procompetitive justifications” for each conduct alleged in the Complaint. “Procompetitive
justifications” is a legal term in antitrust law. See United States v. Microsoft Corp., 253 F.3d 34,
59 (D.C. Cir. 2001). To the extent that DOJ seeks Google’s legal position regarding what
constitutes procompetitive justifications for the alleged conduct, it is not appropriate questioning
for 30(b)(6) designees.
CONCLUSION
For these reasons, Google requests that the Court enter a protective order requiring
Plaintiffs to withdraw their 30(b)(6) deposition notice. Page 17 PageID#
Dated: August 18,
Eric Mahr (pro hac vice)
Julie S. Elmer (pro hac vice)
Andrew J. Ewalt (pro hac vice)
Justina Sessions (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Scott Eisman (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-Email: eric.mahr@freshfields.com
Daniel S. Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus
David Pearl (pro hac vice)
Allison Vissichelli (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
dpearl@axinn.com
avissichelli@axinn.com
Respectfully submitted,
/s/ Craig C. Reilly
CRAIG C. REILLY (VSB # 20942)
209 Madison Street
Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-Email: Craig.reilly@ccreillylaw.com
Karen L. Dunn (admitted pro hac vice)
Jeannie Rhee (admitted pro hac vice)
William Isaacson (admitted pro hac vice)
Joseph Bial (admitted pro hac vice)
Amy J. Mauser (admitted pro hac vice)
Martha L. Goodman (admitted pro hac vice)
Bryon Becker (VSB # 93384)
Erica Spevack (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street NW
Washington, DC Telephone: (202) 223-Facsimile: (202) 223-kdunn@paulweiss.com
jrhee@paulweiss.com
wisaacson@paulweiss.com
jbial@paulweiss.com
amauser@paulweiss.com
mgoodman@paulweiss.com
bpbecker@paulweiss.com
espevack@paulweiss.com
Meredith Dearborn (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearnborn@paulweiss.com
Counsel for Google LLC
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 1 of 17 PageID# 4488
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-00108
(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S MEMORANDUM IN SUPPORT OF
MOTION FOR A PROTECTIVE ORDER REGARDING
PLAINTIFFS’ RULE 30(B)(6) DEPOSITION NOTICE
The Department of Justice Antitrust Division, along with many of the State Plaintiffs, have
conducted a years-long investigation that afforded them one-way access to voluminous discovery
from Google. Duly complying with the government’s requests, Google produced nearly two
million documents and 31 witnesses for deposition during the investigation alone. After nearly
three and a half years of gathering information, Plaintiffs filed a complaint initiating the instant
action on January 24, 2023.
Discovery in this litigation began on March 27, 2023 and is set to close on September 8,
2023 according to the joint discovery plan submitted by the parties. See Jt. Proposed Discovery
Plan at 1-2 (March 28, 2023), ECF No. 87; Rule 16(b) Scheduling Or. (Mar. 31, 2023), ECF No.
94 (ordering parties’ joint discovery plan). Before entering the parties’ joint discovery plan, this
Court instructed the parties to “focus [their] attention on certain things” and emphasized that
“[parties are] not going to be able to turn over every grain of sand,” observing that the case’s issues
1
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 2 of 17 PageID# 4489
were ones that “the parties have been contemplating and dealing with in various places for
extended periods of time.” Hearing Tr. (Mar. 24, 2023), ECF No. 70 at 18:7-12. In response to
Plaintiffs' discovery requests in this litigation, Google has produced nearly two million additional
documents and agreed to produce nine additional current and former employees for deposition.
Yet, despite a nearly three-and-a-half-year investigation and over four months of discovery
in this case, Plaintiffs waited until a month before the close of fact discovery to serve Google with
a sprawling 30(b)(6) deposition notice with over 200 (including subparts) broad and detailed topics
(the “Notice”), attached hereto as Exhibit A. Google served its objections to the Notice on
Plaintiffs August 14, 2023.
Google met and conferred with Plaintiffs on August 16, 2023 and twice on August 17,
2023 in an effort to narrow the scope of the Notice. The parties were able to reach an agreement
as to the total number of hours of 30(b)(6) deposition testimony on both sides, but they were not
able to reach agreement with respect to the number and scope of topics in the Notice, other than
the elimination of Topic Nos. 28-30.
Even taking into account the limited agreements Google and Plaintiffs were able to reach
with respect to hours and topics, the Notice taken in its entirety is unduly burdensome and
disproportionate to the needs of the case because it is duplicative of Plaintiffs’ other discovery
requests, overly broad, and not stated with sufficient particularity to permit Google to identify
corporate designees to provide the testimony requested. This is particularly the case in light of the
limited time remaining for fact discovery. To be clear, Google does not categorically refuse to
provide discovery in response to the Notice. However, by demanding that Google prepare
corporate designees to testify in detail concerning approximately 200 different topics and
subtopics, Plaintiffs at the eleventh hour are seeking discovery in the most burdensome and
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 3 of 17 PageID# 4490
unreasonable manner possible. Google seeks relief from this Court in the form of a protective
order requiring Plaintiffs to withdraw their Notice without prejudice to reissue a Notice that is
proportional to the needs of the case. Independently, Google requests a protective order with
respect to the portions of the Notice that seek expert analysis1 or information protected by the
attorney client privilege or work product doctrine.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, litigants may obtain “discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
However, discovery in federal litigation is not limitless.
Any discovery sought must be
“proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id. A court “must limit the
frequency or extent of discovery otherwise allowed” if: (1) the discovery sought is cumulative or
duplicative, or can be obtained from some other source that is more convenient, less burdensome,
or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or (3) the proposed discovery is outside the scope permitted
by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
Rule 26(c) provides relief from discovery that exceeds the scope permitted by Rule
26(b)(1). Courts have broad discretion, for good cause shown, to “issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ.
1
The parties’ joint discovery plan (approved by the Court) provides a schedule for exchanging expert reports. Jt.
Proposed Disc. Plan, ECF No. 87.
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 4 of 17 PageID# 4491
P. 26(c)(1); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (holding the courts have “broad
discretion ... to decide when a protective order is appropriate and what degree of protection is
required”). This discretion includes orders forbidding the requested discovery altogether, as well
as orders modifying the requested discovery. Fed. R. Civ. P. 26(c)(1)(A); Fonner v. Fairfax Cnty.,
415 F.3d 325, 331 (4th Cir. 2005) (holding that district court did not abuse its discretion in issuing
a protective order precluding an individual's deposition); Palmer v. Big Lots Stores, Inc., No. 3:14CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (striking overbroad or duplicative
30(b)(6) deposition topics).
ARGUMENT
Taken as a whole, the Notice does not pass muster under Rule 26. Putting aside the massive
amount of discovery collected during their multi-year investigation, Plaintiffs have had months in
this litigation to obtain the discovery sought in the Notice, and many of the topics in the Notice
are cumulative of existing discovery DOJ already has. By flouting this Court’s instructions to be
efficient in discovery, Plaintiffs now seek to foist on Google the undue burden of preparing
numerous corporate representatives to testify about hundreds of topics in the waning days of fact
discovery. Given the voluminous discovery Google has already produced (or is in the process of
producing) regarding the topics in the Notice and Plaintiffs’ ample opportunity to obtain discovery
on those topics in this litigation alone (including 9 depositions of current and former Google
employees, 76 requests for production, 17 interrogatories, and 28 requests for admission), the
burden of the Notice goes far beyond what is proportional to the needs of the case.
I.
The Court Should Require Plaintiffs to Withdraw their Notice.
With a total of four years of investigative and litigation discovery now under their belts,
Plaintiffs’ Notice – which seeks detailed 30(b)(6) testimony on approximately 200 different
complex topics and subtopics, with three weeks remaining in fact discovery – is unduly
4
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 5 of 17 PageID# 4492
burdensome and disproportionate to the needs of the case. Banks v. Off. of Senate Sergeant-atArms, 222 F.R.D. 7, 19 (D.D.C. 2004) (granting protective order for overbroad 30(b)(6) topics and
ordering that plaintiffs “wipe the slate clean” to arrive at “a mutually agreeable listing of topics”).
In its breadth and detail, the Notice imposes an incredible burden on Google, and would require
the preparation of many different witnesses, in some cases on a single topic. In light of how much
discovery DOJ has already conducted in this case, a 30(b)(6) notice should be tailored to what is
actually necessary. Murphy v. Kmart Corp., 255 F.R.D. 497, 506 (D.S.D. 2009) (“sufficient
discovery has been produced in this case to allow [plaintiff] to narrow the focus of this inquiry.”).
For example, Topic 8 seeks testimony on data sourced from 13 separate databases.
Responding to this topic alone would require Google to prepare and defend multiple designees,
who themselves will have to canvas and interview dozens of engineers. See Declaration of
Alexander Bergersen (“Bergersen Decl.”), ¶ 6, attached hereto as Exhibit B. Similarly, Topic 9
seeks testimony on each of the log-level datasets “produced or that will be produced in this
Litigation” and during the Investigation, including “the use of the information and data,” the
“sources of information from which data was pulled,” the “process of pulling” the data, and “the
definition of each field, variable, column, and/or value.” This topic would require Google to
prepare multiple witnesses on the entirety of the log-level data produced in the case, and including
every piece of associated minutiae. That is especially challenging because those datasets were
created to respond to requests for production from DOJ and are not maintained in the ordinary
course, which increases the burden of preparing a witness to testify.
By way of further illustration, Topic 17 requests testimony for the gamut of conduct alleged
in Plaintiffs’ complaint, potentially requiring a different designee for each of the 14 subtopics—
most of which Plaintiffs have already covered in their nearly 40 individual depositions of current
5
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 6 of 17 PageID# 4493
and former Google employees. Between Topics 8, 9, and 17 alone, Google would need to gather
information from dozens of individuals in order to prepare multiple witnesses to provide testimony
as corporate representatives. See, e.g., Bergersen Decl., ¶ 6-7.
Other topics present yet additional challenges. Topic 1 contains a total of 37 subtopics and
sub-subtopics seeking testimony concerning completely disparate categories of information. For
example, Topic 1 purportedly seeks information regarding “accounting policies and procedures,”
but subtopic 1(j) has nothing to do with accounting policies and procedures, as it seeks testimony
about “AdX direct, Yavin, Ad Connector dual/hybrid ad server setups, and any other means
through which AdX submits bids to publishers that do not use DFP as their Publisher Ad Server.”
Similarly, topic 1(i) seeks broad testimony regarding Google’s performance forecasts and
evaluations for its display advertising products, including the “individuals or business units
involved, key metrics and goals, and financial targets.” Not only is this subtopic not about
“accounting policies and procedures,” but it would also require Google to prepare multiple
personnel responsible for each product. See Bergersen Decl., ¶ 3. The nine-year time period
covered by this Topic is also an issue: As Google has already explained in its supplemental
response to Plaintiffs’ Interrogatory No. 3, current Google Finance personnel lack familiarity with
product-level financial metrics covering the 2014-2016 period. Therefore, it is unlikely that
Google could, for instance, adequately prepare a witness to respond to Topics 1(g)-(i), and (l),
especially in light of the short window before the close of fact discovery. See id. Topic 1(k) does
not even specify the information sought, but merely seeks “information contained in the following
documents” and lists 11 Bates numbers corresponding to complex spreadsheets, which themselves
contain a multitude of data. It would be a monumental task to prepare multiple witnesses to testify
just regarding Topic 1, let alone the rest of the Notice.
6
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 7 of 17 PageID# 4494
Topic 10 may appear on its face to be more focused because it seeks testimony regarding
a dataset for Google Ad Manager (GAM), but that is not the case. Google agreed to produce this
custom dataset, which does not exist in the ordinary course of business, in response to Plaintiffs’
Requests for Production. Plaintiffs requested that Google provide worldwide bid-level data
covering GAM auction queries received during the 35th, 36th, 37th, 38th, and 39th seconds of
each minute of the month of June 2023, as well as a second set of data covering queries received
on June 28, 2023. This dataset includes data associated with approximately 55 billion queries from
that time period. In order to prepare a witness for Topic 10(b), which requests “the percentages of
impressions in the dataset for which line items are ineligible to compete in GAM auctions for the
reasons listed…”, Google would need to analyze potentially thousands of line items associated
with each of these 55 billion queries and the reasons why they were ineligible to compete in the
GAM auction.
Topics 13 and 14 seek to require testimony on “Google’s measurement, evaluation and
understanding of the value of any data” and “Google’s processes for measuring and evaluating the
impact of the collection of data of any type on its business performance or processes.” These
topics fail to place any bounds on the data or business at issue. For example, the Notice does not
specify the type of data at issue, the sources of such data within Google, or the purpose for which
Google uses this data. The data in these topics are not even limited to the relevant products in this
litigation. Topic 13, for example, explicitly sweeps in other products like “Search, GMail,
YouTube, signed in with Google, etc.” And while Topic 14 lists some specific allegations, like
dynamic allocation and dynamic revenue share, the phrase “data of any type” and the word
“including” which the Notice defines as “including but not limited to” makes clear that this topic
7
PDF Page 9
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 8 of 17 PageID# 4495
is not limited in any way. The breadth of subjects at issue is completely untethered from the claims
in this litigation.
Topics 15 and 16 seek to require testimony on how data is and has been passed between
any of Google’s products that facilitate display advertising—including but not limited to GAM,
DV360, and Google Ads—as well as testimony on “any datasets” accessible to or accessed by
those products.
Other than the connection to display advertising, the Notice provides no
discernible link to the conduct alleged in the complaint. Merely identifying and describing such
data—as Topics 15(a) and 16(a) seek—would be a tremendous burden for Google’s deponent. But
the topics seek further testimony on “[h]ow Google’s products, employees, and executive use that
data in the ordinary course of Google’s business,” which would itself require Google’s deponent
to investigate how Googlers past and present have designed and used products spanning the 13year period requested for Topics 15 and 16.
The Notice burdens Google with not only identifying, preparing, and defending numerous
corporate representatives to address its many overbroad topics, but also properly educating those
representatives so that they are able to respond to the many detailed subtopics. It is well established
that a corporation has an affirmative duty to “make a good-faith effort to designate persons with
knowledge of the the matter sought by the opposing party and to adequately prepare the corporate
representative[s] so that they may give complete, knowledgeable, and non-evasive answers in
deposition,” including beyond the designee’s personal knowledge.
United States v. B.C.
Enterprises, Inc., No. 2:08CV590, 2010 WL 11699777, at *1 (E.D. Va. Feb. 19, 2010). As
demonstrated above, that is simply not possible for Google to adequately do for this Notice as
currently drafted.
8
PDF Page 10
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 9 of 17 PageID# 4496
On balance, these massive burdens are vastly disproportionate to Plaintiffs’ need for the
testimony sought in the Notice. Plaintiffs already have four years worth of discovery from Google
amounting to millions of documents and testimony from 40 current and former employees
(including one 30(b)(6) representative).2
As discussed below, see infra § III, much of the
discovery Plaintiffs seek now is duplicative of the discovery Google has already provided or is in
the process of providing. Given the additional fact that Plaintiffs waited over four months into the
discovery period to issue such a burdensome Notice, the Court should find the Notice
disproportionate to the needs of the case and order Plaintiffs to withdraw it, or in the alternative
modify it. See, e.g., St. John Haney v. Kavoukjian, No. CV 2:19-2098-RMG, 2020 WL 12762510,
at *5 (D.S.C. Dec. 17, 2020) (granting protective order against 30(b)(6) deposition because
plaintiffs had “ample opportunity” to obtain information by discovery despite plaintiffs realizing
new information based on internet searches).
II.
Google Seeks a Protective Order Against Producing 30(b)(6) Testimony In
Response to Topics Not Stated With Reasonable Particularity.
Federal Rule of Civil Procedure 30 requires the noticing party to “include in its notice a
description with reasonable particularity [of] the matters for examination,” so that the other party
could “adequately prepare deponents.” B.C. Enterprises, 2010 WL 11699777, at *1; see also Fed.
R. Civ. P. 30(b)(6) (the party noticing the deposition must “describe with reasonable particularity
the matters for examination.”). Plaintiffs have not met this burden, because many of the topics in
the Notice are so vague, ambiguous, and broad that it is impossible for Google to identify witnesses
to properly prepare for and respond to the topics. Trustees of Bos. Univ. v. Everlight Elecs. Co.,
No. 12-CV-11935-PBS, 2014 WL 5786492, at *3 (D. Mass. Sept. 24, 2014) (“If the noticing party
2
Upon completion of the individual depositions of current and former Google employees noticed
in this action.
9
PDF Page 11
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 10 of 17 PageID# 4497
does not describe the topics with sufficient particularity or if the topics are overly broad, the
responding party is subject to an impossible task.”).
Some of the data-related topics in the Notice are particularly egregious. For example, Topic
13 seeks testimony regarding “Google’s measurement, evaluation, and understanding of the value,
whether expressed as dollar amounts or some other metric, whether monetary or non-monetary
and whether measured by the quality, utility, or usefulness of any data, its bid, pricing, audience,
targeting, or related data by its executives, engineers, product managers, and employees.” Aside
from being nearly impossible to understand, Topic 13 appears to be seeking testimony on the
“value” of “any data” used for any purpose by Google. While the next sentence of Topic 13
attempts to explain “for clarity,” the request is no less confusing or broad, as it states, “this includes
Google’s measurement, evaluation, and understanding of the value of any data, whether
considered alone or in conjunction with the other datasets…” (emphasis added). This request is so
broad as to be absurd. There could be hundreds of individuals that Google would need to consult
in order to prepare a witness (or witnesses) to testify to the “measurement, evaluation, and
understanding” of any data. See, e.g., Banks, 222 F.R.D. at 18–19 (finding a topic requesting “the
sum and substance of all conversations” with an employee impermissibly broad); Edelen v.
Campbell Soup Co., 265 F.R.D. 676, 684 (N.D. Ga. 2010) (sustaining objection to 30(b)(6) topic
that sought “the existence, description, nature, custody, condition, and location of any documents
or other tangible things that are relevant or are reasonably calculated to lead to the discovery of
admissible evidence.”); Trustees of Bos. Univ., 2014 WL 5786492, at *3 (holding topic seeking
“all facts related to the relationship” between two companies, among others, were overbroad and
did “not provide a basis upon which an individual or entity can reasonably determine what
information may or may not be responsive.”).
10
PDF Page 12
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 11 of 17 PageID# 4498
Nor do the subparts provide any clarification. Because Topic 13 uses inclusive language
such as “whether considered alone or in conjunction with other datasets with the following
considerations,” the subparts do not limit the topic. In addition, the subparts themselves are worded
extremely broadly. For example, subpart 13(a) states “whether the joining, simultaneous use, or
any other linkage or association of the data with any other data or dataset increases, decreases, or
causes any change in the value, whether considered on a monetary or non-monetary basis.”
(emphasis added). Courts have found similar language “sufficiently broad and amorphous as to
run afoul” of Rule 30. Fed. Ins. Co. v. Delta Mech. Contractors, LLC, No. 11-048ML, 2013 WL
1343528, at *4 (D.R.I. Apr. 2, 2013) (“‘including but not limited to’ language in Rule 30(b)(6)
notices are patently overbroad and impossible to comply with.”) (internal citations omitted); TriState Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005) (“Listing several
categories and stating that the inquiry may extend beyond the enumerated topics defeats the
purpose of having any topics at all.”).
Similarly, Topic 14 seeks testimony regarding “Google’s processes for measuring and
evaluating the impact of the collection of data of any type on its business performance…”
(emphasis added). It is impossible to prepare a witness regarding the “impact” of “data of any
type” on a topic as broad as “business performance.” There are infinite ways to interpret the phrase
“impact” and “business performance,” let alone the purposefully overbroad inclusion of “data of
any type.” Topic 17 seeks testimony regarding the “nature, function, and operations” of 14
different Ad Tech features, “including any data and algorithms utilized.” The phrase “nature,
function, and operations” fail to meet the reasonable particularity standard required by Rule
30(b)(6), as it encompasses nearly every aspect of these features. See, e.g., Kmart, 255 F.R.D. at
506 (defendant “could not reasonably designate and properly prepare a corporate representative”
11
PDF Page 13
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 12 of 17 PageID# 4499
for a “broad line of inquiry” that included topics regarding “the corporate history” and “corporate
relationship” of four entities, and “the bankruptcy of [the parent company]”).
Given the overbreadth of these topics, it is not Google’s responsibility to guess or interpret
what Plaintiffs mean. See E3 Biofuels, LLC v. Biothane, LLC, No. 8:11CV44, 2013 WL 4400506,
at *3 (D. Neb. Aug. 15, 2013) (“Plaintiff cannot be left to guess about the information [noticing
party] wishes to obtain, and then open itself up to complaints that it failed to produce appropriate
individuals to testify.”); Murphy v. Kmart Corp., 255 F.R.D. 497, 506 (D.S.D. 2009) (“[I]t hardly
seems fair to expect [defendant] to interpret” an overbroad deposition topic.) (internal quotation
marks omitted). Google has met with Plaintiffs in an attempt to narrow or drop these topics, but
Plaintiffs so far have not modified any of them.
III.
Plaintiff’s Notice Includes Topics Duplicative of Other Discovery or
Inappropriate for Oral Testimony
Given the fast-approaching fact discovery deadline, the parties do not have time to waste
on inefficient and unproductive discovery. See, e.g., Tri-State Hosp. Supply Corp., 226 F.R.D. at
126 (holding that a 30(b)(6) deposition, “which by its nature can be time-consuming and
inefficient, be productive, and not simply an excuse to seek information that is already known”).
Courts have ruled against deposition topics that are inappropriate or inefficient for oral testimony,
such as topics that would require the deponent to catalog and memorize voluminous information.
See, e.g., Trustees of Bos. Univ., 2014 WL 5786492, at *4 (“Topic 22 asks the designated witness
to state, for each accused product, from 2006 to the present, the costs, expenses on an itemized
basis, gross profit margin, operating profit margin, incremental profit margin, and revenues. It also
asks the witness to identify all supporting documents. It is not reasonable to expect one or more
witnesses to remember and testify about every one of these facts.”)
12
PDF Page 14
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 13 of 17 PageID# 4500
Many of the topics appear to be seeking information that are not appropriate and overly
burdensome for oral testimony because they would require Google witnesses to study and
remember voluminous and detailed information. These topics seek testimony identifying
numerous individuals, identifying documents, and explaining all aspects of voluminous datasets.
For example, Topic 1(h) seeks “[t]he identity (by Bates number or file numbers) of all final
versions of P&L statements.” Topic 6(b) seeks the “identification and operation of any algorithms,
processes, or source code.” Topic 7(e) seeks “[t]he identities, including by name and/or title, of
any Google employees or executives.” Topic 8 seeks the “definitions and topics regarding datasets
produced by Google in this Litigation” for 17 datasets. Topic 9(b) seeks “[t]he individual sources
of information from which data was pulled, extracted, copied.” Topic 9(d) seeks “[t]he definition
of each field, variable, column, and/or value in each dataset.” Topic 15(a) seeks the
“[i]dentification or description of the contents of [Google’s] data.” Topic 16 seeks the
“identification of any datasets.” And Topic 22 seeks the “identification and Google’s
understanding of terms of contracts, agreements, or arrangements.”
It would be impossible and inefficient for Google to prepare witnesses to testify regarding
such voluminous records, data, and be prepared on the identities of particular individuals and
executives. See, e.g., In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant
Prod. Liab. Litig., No. CV 17-MD-2775, 2018 WL 3079699, at *3 (D. Md. June 20, 2018) (holding
it is “hard to see how subpoenaing testimony from someone who can identify those people is any
more efficient than interrogatory requests to the same end.”); Parsons v. Columbia Gas
Transmission, LLC, No. 2:19-CV-00649, 2021 WL 5413675, at *2 (S.D.W. Va. Sept. 10, 2021)
(granting protective order as to topics seeking testimony about “the extent to which CGT has data”
and “data compilations”); U.S. ex rel. Smith v. Boeing Co., No. 05-1073-WEB, 2009 WL 2777278,
13
PDF Page 15
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 14 of 17 PageID# 4501
at *8 n.16 (D. Kan. Aug. 27, 2009) (“Requiring Boeing to designate a corporate representative to
appear for a deposition to provide the names and addresses of witnesses is a waste of time and
money.”).
Moreover, none of these topics meet the “reasonable particularity” standard of 30(b)(6).
Merely listing documents or datasets Plaintiffs are interested in does not help Google understand
the topic, or how to prepare a witness about those voluminous documents and datasets. DOJ’s
deposition does not provide any information, for example, on how Google is to prepare witnesses
on Topics 1(k), 2(g), 3(b), or 5(c), which simply lists Bates numbers of various large, and complex
datasets or financial documents, with nothing more than the bare statement that DOJ is seeking
“information” about these documents. Further, some of these documents were produced in DOJ’s
Search case against Google. See Boeing, 2009 WL 2777278, at *8 n.16 (holding “when
voluminous documents extending over years are involved, an entity preparing Rule 30(b)(6)
witnesses must understand what is being requested” and “simply asking a party to provide
testimony concerning a 390-page contract or a 190-page manual does not satisfy the requirement
of reasonable particularity”).
Plaintiffs have had ample opportunity to seek, in more efficient and less burdensome ways,
the information they now request in the Notice. Including so many impractical and burdensome
topics in a 30(b)(6) deposition notice would require Google to prepare numerous witnesses
regarding various lists, data, and minutiae, who would not possibly be able to recite the information
accurately during a deposition. Kinetic Concepts, Inc. v. Convatec Inc., 268 F.R.D. 255, 263
(M.D.N.C. 2010) (noticing party “had ample opportunity to obtain the information by discovery
in the action” including through interrogatory).
14
PDF Page 16
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 15 of 17 PageID# 4502
Moreover, Plaintiffs already have much of the information requested. For example, Topic
11 seeks, among other things, “a list of the fields and types of data available” in certain datasets
produced by Google. Google has already provided such lists in its data productions. Top 10(a)
seeks testimony on why “one cannot infer that a remnant line item competed in the GAM auction
based solely on information in the inventory key value for a given ad query.” This highly technical
issue regarding data was answered by Google in a letter dated July 14. Having already provided
the information, Google should not have to also designate a witness to memorize and be able to
recite lists or the technical requirements of data. See, e.g., Palmer v. Big Lots Stores, Inc., No.
3:14-CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (striking certain deposition topics
because they are “covered” by interrogatories and requests for production); Banks, 222 F.R.D. at
19 (ordering plaintiff to re-draft 30(b)(6) topics to ensure that they are “meaningful exercises in
ascertaining information that has not been previously discovered or are necessary”); Kinetic
Concepts, 268 F.R.D. at 263 (finding a deposition topic unwarranted given the noticed party’s
interrogatory responses).
IV.
The Court Should Protect Google from Topics that Are Protected Under the
Attorney Work Product Doctrine and Attorney-Client Privilege or that Seek
Legal Conclusions or Expert Analysis.
Many of the topics in the Notice also pose privilege and work product issues, or appear to
seek testimony regarding legal conclusions or expert analysis. Such topics are improper. See
Novartis Pharms. Corp. v. Abbott Lab’ys, 203 F.R.D. 159, 163 (D. Del. 2001) (denying motion to
compel Rule 30(b)(6) deposition because topic regarding testing “done at the request of its
counsel” and “conducted in anticipation of identifiable litigation”); Boeing, 2009 WL 2777278, at
*7 (granting protective order regarding topic that requested information on “retrieval, search,
investigation, disclosure, and production of [defendant’s] records in this litigation”). Similarly,
15
PDF Page 17
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 16 of 17 PageID# 4503
here, Topics 9(c) and 11(b) seek testimony about “[t]he process of pulling, assembling, and
quality-checking” datasets which were created for this litigation and do not exist in the ordinary
course of business. Topic 22 seeks information regarding “Google’s understanding of terms of
contracts, agreements, or arrangements” with the Federal Agency Advertisers. It would be
burdensome and infeasible for Google to prepare witnesses to testify regarding these topics without
divulging privileged information, at least without more targeted information regarding what DOJ
intends to ask on these topics.
In addition, other topics improperly seek testimony regarding legal conclusions and matters
requiring expert testimony. See In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D.
Kan. 1996) (granting protective order from 30(b)(6) topics asking “about facts supporting
numerous paragraphs of Xerox’s denials and affirmative defenses” as legal conclusions or expert
testimony); Parsons v. Columbia Gas Transmission, LLC, No. 2:19-CV-00649, 2021 WL
5413675, at *1 (S.D.W. Va. Sept. 10, 2021) (A “Rule 30(b)(6) deposition is not an appropriate
vehicle to ascertain a corporate party’s litigation positions.”). For example, Topic 18, seeks “all
procompetitive justifications” for each conduct alleged in the Complaint. “Procompetitive
justifications” is a legal term in antitrust law. See United States v. Microsoft Corp., 253 F.3d 34,
59 (D.C. Cir. 2001). To the extent that DOJ seeks Google’s legal position regarding what
constitutes procompetitive justifications for the alleged conduct, it is not appropriate questioning
for 30(b)(6) designees.
CONCLUSION
For these reasons, Google requests that the Court enter a protective order requiring
Plaintiffs to withdraw their 30(b)(6) deposition notice.
16
PDF Page 18
Case 1:23-cv-00108-LMB-JFA Document 312 Filed 08/18/23 Page 17 of 17 PageID# 4504
Dated: August 18, 2023
Eric Mahr (pro hac vice)
Julie S. Elmer (pro hac vice)
Andrew J. Ewalt (pro hac vice)
Justina Sessions (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Scott Eisman (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
Email: eric.mahr@freshfields.com
Daniel S. Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
dbitton@axinn.com
Bradley Justus
David Pearl (pro hac vice)
Allison Vissichelli (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
dpearl@axinn.com
avissichelli@axinn.com
Respectfully submitted,
/s/ Craig C. Reilly
CRAIG C. REILLY (VSB # 20942)
209 Madison Street
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
Email: Craig.reilly@ccreillylaw.com
Karen L. Dunn (admitted pro hac vice)
Jeannie Rhee (admitted pro hac vice)
William Isaacson (admitted pro hac vice)
Joseph Bial (admitted pro hac vice)
Amy J. Mauser (admitted pro hac vice)
Martha L. Goodman (admitted pro hac vice)
Bryon Becker (VSB # 93384)
Erica Spevack (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street NW
Washington, DC 20006
Telephone: (202) 223-7300
Facsimile: (202) 223-7420
kdunn@paulweiss.com
jrhee@paulweiss.com
wisaacson@paulweiss.com
jbial@paulweiss.com
amauser@paulweiss.com
mgoodman@paulweiss.com
bpbecker@paulweiss.com
espevack@paulweiss.com
Meredith Dearborn (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA 94105
Telephone: (646) 432-5100
Facsimile: (202) 330-5908
mdearnborn@paulweiss.com
Counsel for Google LLC
17
Back to 
