United States et al v. Google LLC Document 315: Memorandum In Support

Filed August 18, 2023

Back to United States et al v. Google LLC, Virginia Eastern District Court Case No. 1:23-cv-00108-LMB-JFA

Memorandum in Support re [314] MOTION to Seal re Doc. 305 & 307 filed by Google LLC. (Reilly, Craig)

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Page 1 PageID# 4550
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
vs.
No: 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT GOOGLE LLC’S MOTION TO SEAL
Pursuant to Local Civil Rule 5, Defendant Google LLC (“Google”), through its
undersigned counsel, hereby respectfully submits the instant memorandum of law in support of its
motion to seal portions of its Memorandum of Law in Support of Google’s Motion To Compel
Production of Documents and Testimony Wrongfully Withheld as Privileged, and certain exhibits
referenced therein. These exhibits and the redactions in the brief contain information designated
by Plaintiff the United States as confidential or highly confidential under the parties’ protective
order (Dkt. 203 ¶ 20). The exhibits and the unredacted brief have been filed electronically using
the sealed filing events at Dkts. 307, the redacted brief is filed on the public docket at Dkt. 305.
INTRODUCTION
Google’s Memorandum of Law references, among other exhibits: (i) documents produced
by the United States as part of its investigative file and during the course of discovery in this matter
and designated by the United States as confidential or highly confidential; (ii) transcripts of
depositions of Federal Agency Advertiser (“FAA”) employees designated by the United States as
highly confidential; (iii) correspondence from attorneys from the Department of Justice Antitrust

Page 2 PageID# 4551
Division (“ATR”) to Google’s outside counsel designated by the United States as confidential; (iv)
correspondence from Google’s outside counsel to attorneys from ATR referencing documents
designated confidential or highly confidential by the United States; and (v) a privilege log
produced by the United States and designated as confidential. Pursuant to paragraph 20 of the
Protective Order (Dkt. 203), through this motion Google informs the Court of the confidentiality
designations of these materials and requests that the Court seal these exhibits from the public
docket, and maintain the redacted brief on the public docket, in order to provide Plaintiff sufficient
time to provide the Court with support for the need to seal these documents. But for the
requirements of the Protective Order, Google would not seek to seal these documents.
ARGUMENT
Public access to judicial records is “protected both by the common law and the First
Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The
common law presumes a right of the public to inspect and copy ‘all judicial records and
documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The
common law presumption in favor of public access can be overcome only by a showing that a
litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a
document, a district court must “(1) provide public notice of the request to seal and allow interested
parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the
document[], and (3) provide specific reasons and factual findings supporting its decision to seal
the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302
(4th Cir. 2000); see also Local Civ. R. 5(C).

Page 3 PageID# 4552
Google does not believe the information referenced in its memorandum or the exhibits
cited therein is of a type that outweighs the presumption in favor of public access. Nonetheless,
because the material was designated as confidential or highly confidential by the United States,
Google has filed the present motion in accordance with its obligations under paragraph 20 of the
Protective Order. As stated in the notice filed concurrently with this memorandum, any interested
member of the public and any other party may indicate their position on the motion.
CONCLUSION
For the foregoing reasons, Google respectfully requests that the Court seal the exhibits
(Dkt. 307) and permit the redacted version of Google’s brief (Dkt. 305) to remain on the public
docket.
Dated: August 18, 2023
Respectfully submitted,
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (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
eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
craig.reilly@ccreillylaw.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-1047

Page 4 PageID# 4553
dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER LLP
1901 L Street, NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
Telephone: (202) 223-7300
Facsimile (202) 223-7420
kdunn@paulweiss.com
Meredith Dearborn (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 Defendant Google LLC

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PDF Page 2	Case 1:23-cv-00108-LMB-JFA Document 315 Filed 08/18/23 Page 1 of 4 PageID# 4550 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES, et al., Plaintiffs, vs. No: 1:23-cv-00108-LMB-JFA GOOGLE LLC, Defendant. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT GOOGLE LLC’S MOTION TO SEAL Pursuant to Local Civil Rule 5, Defendant Google LLC (“Google”), through its undersigned counsel, hereby respectfully submits the instant memorandum of law in support of its motion to seal portions of its Memorandum of Law in Support of Google’s Motion To Compel Production of Documents and Testimony Wrongfully Withheld as Privileged, and certain exhibits referenced therein. These exhibits and the redactions in the brief contain information designated by Plaintiff the United States as confidential or highly confidential under the parties’ protective order (Dkt. 203 ¶ 20). The exhibits and the unredacted brief have been filed electronically using the sealed filing events at Dkts. 307, the redacted brief is filed on the public docket at Dkt. 305. INTRODUCTION Google’s Memorandum of Law references, among other exhibits: (i) documents produced by the United States as part of its investigative file and during the course of discovery in this matter and designated by the United States as confidential or highly confidential; (ii) transcripts of depositions of Federal Agency Advertiser (“FAA”) employees designated by the United States as highly confidential; (iii) correspondence from attorneys from the Department of Justice Antitrust

PDF Page 3	Case 1:23-cv-00108-LMB-JFA Document 315 Filed 08/18/23 Page 2 of 4 PageID# 4551 Division (“ATR”) to Google’s outside counsel designated by the United States as confidential; (iv) correspondence from Google’s outside counsel to attorneys from ATR referencing documents designated confidential or highly confidential by the United States; and (v) a privilege log produced by the United States and designated as confidential. Pursuant to paragraph 20 of the Protective Order (Dkt. 203), through this motion Google informs the Court of the confidentiality designations of these materials and requests that the Court seal these exhibits from the public docket, and maintain the redacted brief on the public docket, in order to provide Plaintiff sufficient time to provide the Court with support for the need to seal these documents. But for the requirements of the Protective Order, Google would not seek to seal these documents. ARGUMENT Public access to judicial records is “protected both by the common law and the First Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The common law presumes a right of the public to inspect and copy ‘all judicial records and documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The common law presumption in favor of public access can be overcome only by a showing that a litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a document, a district court must “(1) provide public notice of the request to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the document[], and (3) provide specific reasons and factual findings supporting its decision to seal the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000); see also Local Civ. R. 5(C).

PDF Page 4	Case 1:23-cv-00108-LMB-JFA Document 315 Filed 08/18/23 Page 3 of 4 PageID# 4552 Google does not believe the information referenced in its memorandum or the exhibits cited therein is of a type that outweighs the presumption in favor of public access. Nonetheless, because the material was designated as confidential or highly confidential by the United States, Google has filed the present motion in accordance with its obligations under paragraph 20 of the Protective Order. As stated in the notice filed concurrently with this memorandum, any interested member of the public and any other party may indicate their position on the motion. CONCLUSION For the foregoing reasons, Google respectfully requests that the Court seal the exhibits (Dkt. 307) and permit the redacted version of Google’s brief (Dkt. 305) to remain on the public docket. Dated: August 18, 2023 Respectfully submitted, Eric Mahr (pro hac vice) Andrew Ewalt (pro hac vice) Julie Elmer (pro hac vice) Lauren Kaplin (pro hac vice) Jeanette Bayoumi (pro hac vice) Claire Leonard (pro hac vice) Sara Salem (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 eric.mahr@freshfields.com /s/ Craig C. Reilly Craig C. Reilly (VSB # 20942) THE LAW OFFICE OF CRAIG C. REILLY, ESQ. 209 Madison Street Alexandria, VA 22314 Telephone: (703) 549-5354 Facsimile: (703) 549-5355 craig.reilly@ccreillylaw.com Daniel Bitton (pro hac vice) AXINN, VELTROP & HARKRIDER LLP 55 2nd Street San Francisco, CA 94105 Telephone: (415) 490-2000 Facsimile: (415) 490-2001 Karen L. Dunn (pro hac vice) Jeannie H. Rhee (pro hac vice) William A. Isaacson (pro hac vice) Joseph Bial (pro hac vice) Amy J. Mauser (pro hac vice) Martha L. Goodman (pro hac vice) Bryon P. Becker (VSB #93384) Erica Spevack (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 2001 K Street, NW Washington, DC 20006-1047

PDF Page 5	Case 1:23-cv-00108-LMB-JFA Document 315 Filed 08/18/23 Page 4 of 4 PageID# 4553 dbitton@axinn.com Bradley Justus (VSB # 80533) AXINN, VELTROP & HARKRIDER LLP 1901 L Street, NW Washington, DC 20036 Telephone: (202) 912-4700 Facsimile: (202) 912-4701 bjustus@axinn.com Telephone: (202) 223-7300 Facsimile (202) 223-7420 kdunn@paulweiss.com Meredith Dearborn (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 Defendant Google LLC


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