MOTION for Judgment on the Pleadings or to Strike as to Google's Tenth and Thirteenth Affirmative Defenses, or in the Alternative for a Protective Order by Commonwealth of Virginia, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Illinois, State of Michigan, State of Minnesota, State of Nebraska, State of New Hampshire, State of New Jersey, State of New York, State of North Carolina, State of Rhode Island, State of Tennessee, State of Washington, State of West Virginia, United States of America. (Attachments: # (1) Exhibit 1 - RFP No 40, # (2) Exhibit 2 - 30(b)(6) Notice, # (3) Exhibit 3 - Subpoena, # (4) Proposed Order (Partial Judgment on the Pleadings), # (5) Proposed Order (Protective Order))(Teitelbaum, Aaron)
Page 1 PageID#
EXHIBIT 3Page 2 PageID#
Washington
700 13th Street NW, 10th Floor
Washington, DC (202) 777Eric.mahr@freshfields.com
www.freshfields.com
August 17,
Re:
United States, et al. v. Google LLC, No. 1:23-CV-00108 (E.D. Va.)
Dear Mr. Kanter,
Enclosed is a subpoena for deposition testimony and for documents that has been served
on you. This subpoena is served on you in your individual capacity, and is not served on you in
your capacity as Assistant Attorney General for the Antitrust Division of the Department of
Justice.
Treatment of discovery materials in this litigation is governed by the Protective Order,
the Order regarding Electronically Stored Information, and the Coordination Order entered by
the court. A copy of each Order is included with this subpoena.
Please note that the deposition date and production deadline for the subpoena is
September 8, 2023. The subpoena contains instructions for the deposition location and the place
of production of responsive documents. If you would like to discuss an alternative method or
place of production (such as via email or FTP), or have any other questions regarding the
subpoena, please feel free to reach out to me at (202) 777or eric.mahr@freshfields.com.
Yours truly,
Eric MahrPage 3 PageID# 4568Page 4 PageID# 4569Page 5 PageID# AO 88A (Rev. 12/20) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development,
or commercial information; or
(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).Page 6 PageID#
Exhibit APage 7 PageID#
United States, et al. v. Google LLC, No. 1:23-CV-00108 (E.D. Va.)
Exhibit A to Subpoena
INSTRUCTIONS
1.
In addition to the specific instructions set forth below, these Requests
incorporate the instructions set forth in Federal Rule of Civil Procedure 45 (“Federal
Rules”), the Local Rules of the U.S. District Court for the Eastern District of Virginia
(“Local Rules”), the Order Regarding Electronically Stored Information (“ESI Order”)
(ECF No. 142), and the Protective Order (ECF No. 203), or the operative version of those
Orders in place at the time production is made. Subject to a valid claim of privilege, please
produce the entire document if any part of that document is responsive.
2.
Please produce all requested documents in Your possession, custody, or
control, or available to You, or to which You may gain access through reasonable effort,
including information in the possession of Your past and present attorneys, accountants,
investigators, consultants, agents, or other persons directly or indirectly employed or
retained by You, or anyone else otherwise subject to Your control who maintains records
on Your behalf, in Your name, or otherwise under Your control.
3.
Pursuant to Federal Rule 45(e)(1), documents must be produced either: (a)
as they are kept in the usual course of business (in which case they must be produced in
such fashion as to identify the department, branch, or office in whose possession the
document was found or the server or central file in which it was found, and the address of
each document’s custodian(s)), or (b) segregated as responsive to a specific Request
enumerated herein, with such specific Request identified.
1Page 8 PageID#
4.
If any portion of any document is responsive to any Request, a legible
version of the entire document must be produced, together with all non-identical copies,
versions, and drafts of that document, including all attachments and enclosures.
5.
You must retain all of the original documents for inspection or copying
throughout the pendency of this Action, any appeal(s), and any related proceedings.
6.
You must produce all documents and associated metadata according to the
Federal Rules, Local Rules, and, when entered, the governing ESI Order for this Action.
Provide instructions and all other materials necessary to use or interpret Your data
compilations, such as a data dictionary, with Your production.
7.
Data and materials that are stored electronically or in machine-readable
form should be produced in electronic form with sufficient information to allow counsel to
readily access or read such data or materials.
8.
If you object to all or any portion of any of the below Requests, you must
identify the objectionable Request or portion thereof, and the nature and basis of the
objection. Notwithstanding any objection to any portion of any Request, you must produce
all documents and information to which such objection does not apply.
9.
If any document responsive to a particular Request no longer exists for
reasons other than Your document retention policy, describe the circumstances under
which it was lost or destroyed, describe the information lost or destroyed, list the Request
to which it was responsive, and list persons with knowledge of the document.
10.
If you are unable to produce a document that is responsive to a Request,
describe the document, state why it cannot be produced and, if applicable, state the
whereabouts of such document when last in your possession, custody, or control.
2Page 9 PageID#
11.
If there are no documents or information responsive to all or any portion of
any Request, so state in writing.
12.
Other than redactions of privileged information, documents are to be
produced in full. If any requested document cannot be produced in full, or if you withhold
production of any document or portion of any document responsive to these Requests based
upon any privilege, protection, or immunity, produce it to the extent possible and provide
the privilege log information set forth in the governing ESI Order, once entered.
13.
In construing the Requests herein:
a. Terms not specifically defined shall be given their ordinary meaning as You
understand them to be used in the trade;
b. The use of a verb in any tense, mood, or voice shall be construed as the use of
the verb in all other tenses, moods, or voices, whenever necessary, to bring
within the scope of any Request all information that might otherwise be
construed to be outside its scope;
c. The use of the singular form of any word includes the plural and vice versa;
d. Words in the masculine, feminine, or neutral gender shall include each of the
other genders;
e. The connectives “and” and “or” shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the Request all responses
that might otherwise be construed to be outside of its scope;
f. The terms “all,” “any,” and “each” shall each be construed as encompassing any
and all.
3Page 10 PageID#
14.
None of the Definitions or Requests set forth herein shall be construed as
an admission relating to the existence of any evidence, to the relevance or admissibility of
any evidence, or to the truth or accuracy of any statement or characterization in the
Definitions or the Requests.
15.
These Requests are continuing in nature. In the event that You become
aware of responsive documents or information in addition to, or in any way inconsistent
with, that which You previously have produced, prompt supplementation of Your
responses is required.
16.
Google specifically reserves the right to seek supplementary responses and
the additional supplementary production of documents before trial.
DEFINITIONS
1.
To the extent the terms defined below are used in the Topics, they should be
construed broadly to the fullest extent of their meaning in a good-faith effort to comply with the
Federal Rules and the Local Rules. These Definitions are provided solely for the purposes of this
Subpoena.
2.
The term “Antitrust Division” shall refer to the Antitrust Division of the United
States Department of Justice.
3.
The term “Communication” shall refer to the transmittal of information (in the
form of facts, ideas, inquiries or otherwise) via electronic and non-electronic means, including
both written and verbal correspondence, such as, e.g., e-mails, meetings, telephone calls, and
letters.
4.
The term “Document” shall be synonymous in meaning and equal in scope to the
usage of the phrase “documents or electronically stored information” in Federal Rule 34(a)(1)(A).
4Page 11 PageID#
For avoidance of doubt, a draft or non-identical copy is a separate document within the meaning
of this term, and electronic communications, such as e-mails, are covered within the meaning of
this term.
5.
The term “Foreign Regulator” shall refer to government agencies located outside
of the United States whose powers include investigating and charging potential antitrust violations,
including but not limited to the European Commission, the United Kingdom’s Competition and
Markets Authority, France’s Autorité de la Concurrence, and the Australian Competition and
Consumer Commission.
6.
The term “Former Client” shall refer to any of
, including any parents, predecessors, successors, divisions,
subsidiaries, affiliates, partnerships and joint ventures, or any directors, officers, employees,
agents, or representatives of the foregoing.
7.
The term “July 2020 Meeting” shall refer to any meeting occurring in or around
July or August 2020 concerning Google and/or “scale issues,” attended by You, Susan Athey,
and/or employees of the Antitrust Division.
8.
The terms “You” and “Your” shall refer to Jonathan Kanter.
REQUESTS FOR DOCUMENTS
1.
All Communications concerning Google that You have had with any Former Kanter
Client since You were nominated as Assistant Attorney General for the Antitrust Division on July
5Page 12 PageID#
20, 2021, including any such Communications made through any other Department of Justice
employee.
2.
All Communications concerning Google that You had with any employee of the
Antitrust Division, the U.S. Federal Trade Commission, the Office of the Texas Attorney General
or of any other State Attorney General, or any Foreign Regulator, on Your own behalf or on behalf
of any Former Client, between January 1, 2007 and the date of Your confirmation as Assistant
Attorney General for the Antitrust Division on November 16, 2021.
3.
Any materials presented, or provided to any attendees, during any meeting
concerning Google attended by You and any employee of the Antitrust Division, for meetings held
between January 1, 2019 and the date of Your confirmation as Assistant Attorney General for the
Antitrust Division on November 16, 2021, specifically including, but not limited to, any materials
that You and/or Susan Athey presented, provided to attendees, or planned to present or provide to
attendees at the July 2020 Meeting.
6
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 1 of 12 PageID# 4566
EXHIBIT 3
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Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 2 of 12 PageID# 4567
Washington
700 13th Street NW, 10th Floor
Washington, DC 20005
(202) 777Eric.mahr@freshfields.com
www.freshfields.com
August 17, 2023
Re:
United States, et al. v. Google LLC, No. 1:23-CV-00108 (E.D. Va.)
Dear Mr. Kanter,
Enclosed is a subpoena for deposition testimony and for documents that has been served
on you. This subpoena is served on you in your individual capacity, and is not served on you in
your capacity as Assistant Attorney General for the Antitrust Division of the Department of
Justice.
Treatment of discovery materials in this litigation is governed by the Protective Order,
the Order regarding Electronically Stored Information, and the Coordination Order entered by
the court. A copy of each Order is included with this subpoena.
Please note that the deposition date and production deadline for the subpoena is
September 8, 2023. The subpoena contains instructions for the deposition location and the place
of production of responsive documents. If you would like to discuss an alternative method or
place of production (such as via email or FTP), or have any other questions regarding the
subpoena, please feel free to reach out to me at (202) 777or eric.mahr@freshfields.com.
Yours truly,
Eric Mahr
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 3 of 12 PageID# 4568
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 4 of 12 PageID# 4569
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 5 of 12 PageID# 4570
AO 88A (Rev. 12/20) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development,
or commercial information; or
(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 6 of 12 PageID# 4571
Exhibit A
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 7 of 12 PageID# 4572
United States, et al. v. Google LLC, No. 1:23-CV-00108 (E.D. Va.)
Exhibit A to Subpoena
INSTRUCTIONS
1.
In addition to the specific instructions set forth below, these Requests
incorporate the instructions set forth in Federal Rule of Civil Procedure 45 (“Federal
Rules”), the Local Rules of the U.S. District Court for the Eastern District of Virginia
(“Local Rules”), the Order Regarding Electronically Stored Information (“ESI Order”)
(ECF No. 142), and the Protective Order (ECF No. 203), or the operative version of those
Orders in place at the time production is made. Subject to a valid claim of privilege, please
produce the entire document if any part of that document is responsive.
2.
Please produce all requested documents in Your possession, custody, or
control, or available to You, or to which You may gain access through reasonable effort,
including information in the possession of Your past and present attorneys, accountants,
investigators, consultants, agents, or other persons directly or indirectly employed or
retained by You, or anyone else otherwise subject to Your control who maintains records
on Your behalf, in Your name, or otherwise under Your control.
3.
Pursuant to Federal Rule 45(e)(1), documents must be produced either: (a)
as they are kept in the usual course of business (in which case they must be produced in
such fashion as to identify the department, branch, or office in whose possession the
document was found or the server or central file in which it was found, and the address of
each document’s custodian(s)), or (b) segregated as responsive to a specific Request
enumerated herein, with such specific Request identified.
1
PDF Page 9
Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 8 of 12 PageID# 4573
4.
If any portion of any document is responsive to any Request, a legible
version of the entire document must be produced, together with all non-identical copies,
versions, and drafts of that document, including all attachments and enclosures.
5.
You must retain all of the original documents for inspection or copying
throughout the pendency of this Action, any appeal(s), and any related proceedings.
6.
You must produce all documents and associated metadata according to the
Federal Rules, Local Rules, and, when entered, the governing ESI Order for this Action.
Provide instructions and all other materials necessary to use or interpret Your data
compilations, such as a data dictionary, with Your production.
7.
Data and materials that are stored electronically or in machine-readable
form should be produced in electronic form with sufficient information to allow counsel to
readily access or read such data or materials.
8.
If you object to all or any portion of any of the below Requests, you must
identify the objectionable Request or portion thereof, and the nature and basis of the
objection. Notwithstanding any objection to any portion of any Request, you must produce
all documents and information to which such objection does not apply.
9.
If any document responsive to a particular Request no longer exists for
reasons other than Your document retention policy, describe the circumstances under
which it was lost or destroyed, describe the information lost or destroyed, list the Request
to which it was responsive, and list persons with knowledge of the document.
10.
If you are unable to produce a document that is responsive to a Request,
describe the document, state why it cannot be produced and, if applicable, state the
whereabouts of such document when last in your possession, custody, or control.
2
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Case 1:23-cv-00108-LMB-JFA Document 317-3 Filed 08/18/23 Page 9 of 12 PageID# 4574
11.
If there are no documents or information responsive to all or any portion of
any Request, so state in writing.
12.
Other than redactions of privileged information, documents are to be
produced in full. If any requested document cannot be produced in full, or if you withhold
production of any document or portion of any document responsive to these Requests based
upon any privilege, protection, or immunity, produce it to the extent possible and provide
the privilege log information set forth in the governing ESI Order, once entered.
13.
In construing the Requests herein:
a. Terms not specifically defined shall be given their ordinary meaning as You
understand them to be used in the trade;
b. The use of a verb in any tense, mood, or voice shall be construed as the use of
the verb in all other tenses, moods, or voices, whenever necessary, to bring
within the scope of any Request all information that might otherwise be
construed to be outside its scope;
c. The use of the singular form of any word includes the plural and vice versa;
d. Words in the masculine, feminine, or neutral gender shall include each of the
other genders;
e. The connectives “and” and “or” shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the Request all responses
that might otherwise be construed to be outside of its scope;
f. The terms “all,” “any,” and “each” shall each be construed as encompassing any
and all.
3
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14.
None of the Definitions or Requests set forth herein shall be construed as
an admission relating to the existence of any evidence, to the relevance or admissibility of
any evidence, or to the truth or accuracy of any statement or characterization in the
Definitions or the Requests.
15.
These Requests are continuing in nature. In the event that You become
aware of responsive documents or information in addition to, or in any way inconsistent
with, that which You previously have produced, prompt supplementation of Your
responses is required.
16.
Google specifically reserves the right to seek supplementary responses and
the additional supplementary production of documents before trial.
DEFINITIONS
1.
To the extent the terms defined below are used in the Topics, they should be
construed broadly to the fullest extent of their meaning in a good-faith effort to comply with the
Federal Rules and the Local Rules. These Definitions are provided solely for the purposes of this
Subpoena.
2.
The term “Antitrust Division” shall refer to the Antitrust Division of the United
States Department of Justice.
3.
The term “Communication” shall refer to the transmittal of information (in the
form of facts, ideas, inquiries or otherwise) via electronic and non-electronic means, including
both written and verbal correspondence, such as, e.g., e-mails, meetings, telephone calls, and
letters.
4.
The term “Document” shall be synonymous in meaning and equal in scope to the
usage of the phrase “documents or electronically stored information” in Federal Rule 34(a)(1)(A).
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For avoidance of doubt, a draft or non-identical copy is a separate document within the meaning
of this term, and electronic communications, such as e-mails, are covered within the meaning of
this term.
5.
The term “Foreign Regulator” shall refer to government agencies located outside
of the United States whose powers include investigating and charging potential antitrust violations,
including but not limited to the European Commission, the United Kingdom’s Competition and
Markets Authority, France’s Autorité de la Concurrence, and the Australian Competition and
Consumer Commission.
6.
The term “Former Client” shall refer to any of
, including any parents, predecessors, successors, divisions,
subsidiaries, affiliates, partnerships and joint ventures, or any directors, officers, employees,
agents, or representatives of the foregoing.
7.
The term “July 2020 Meeting” shall refer to any meeting occurring in or around
July or August 2020 concerning Google and/or “scale issues,” attended by You, Susan Athey,
and/or employees of the Antitrust Division.
8.
The terms “You” and “Your” shall refer to Jonathan Kanter.
REQUESTS FOR DOCUMENTS
1.
All Communications concerning Google that You have had with any Former Kanter
Client since You were nominated as Assistant Attorney General for the Antitrust Division on July
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20, 2021, including any such Communications made through any other Department of Justice
employee.
2.
All Communications concerning Google that You had with any employee of the
Antitrust Division, the U.S. Federal Trade Commission, the Office of the Texas Attorney General
or of any other State Attorney General, or any Foreign Regulator, on Your own behalf or on behalf
of any Former Client, between January 1, 2007 and the date of Your confirmation as Assistant
Attorney General for the Antitrust Division on November 16, 2021.
3.
Any materials presented, or provided to any attendees, during any meeting
concerning Google attended by You and any employee of the Antitrust Division, for meetings held
between January 1, 2019 and the date of Your confirmation as Assistant Attorney General for the
Antitrust Division on November 16, 2021, specifically including, but not limited to, any materials
that You and/or Susan Athey presented, provided to attendees, or planned to present or provide to
attendees at the July 2020 Meeting.
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