RESPONSE in Opposition re [304] MOTION to Compel filed 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) Affidavit Declaration of M. Wolin, # (2) Exhibit 1 - Log Excerpt)(Teitelbaum, Aaron)
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
UNITED STATES’ CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTIONS TO COMPEL AND FOR IN CAMERA REVIEW
This dispute arises from Google’s attempts to obtain three categories of material exempt
from discovery under the work-product doctrine, attorney-client privilege, and/or deliberativeprocess privilege. Google’s discovery requests are improper under controlling law, and nothing
in its papers supports the production of these protected documents on the basis of substantial need.
The first category is composed of inter-agency e-mail communications between the United
States Department of Justice and other federal agencies, including the Federal Agency Advertisers
(“FAAs”) that are plaintiffs in this case, regarding their purchases of digital advertising. Those
communications were made in anticipation of this litigation, for the purpose of providing legal
advice regarding the United States’ potential claims under Section 4A of the Clayton Act, and
conducted in the course of Department of Justice staff providing opinions and recommendations
in connection with decisions on the filing of this litigation, including the scope and content of its
damages claims on behalf of those federal agencies. These documents are not, as Google glibly
suggests, similar to the “intake that a plaintiff firm does on potential clients.” Dkt. 305 (“Mot. to
Compel”) at 1-2. On their face, they are communications between federal agencies (actual, not
potential clients) and attorneys from the Department of Justice (the agencies’ actual, not potential, Page 2 PageID#
attorneys). These are confidential documents protected under the work-product doctrine, attorneyclient privilege, and deliberative-process privilege.
The second category of documents is composed of intra-agency e-mail communications
between the FAAs’ internal counsel and employees of those FAAs containing legal advice or
requests for legal advice, as well as work product prepared by the FAAs at the request of the
Antitrust Division to assess claims in this litigation. Those, too, are protected from discovery.
Discussions between agency counsel and agency employees regarding an ongoing legal
investigation have long been held to be protected attorney-client communications, see Boundy v.
U.S. Patent & Trademark Office, 2023 WL 2567350, at *9 (E.D. Va. Mar. 17, 2023) (emails in
which government attorneys “seek information to assist them” in evaluating “the subject of [the]
litigation . . . fall squarely within the attorney-client privilege”), and documents prepared for the
specific purpose of assisting attorneys in investigating legal claims are protected work product that
would not have existed in the same form absent the litigation.
The third category of documents is composed of: (i) e-mail communications between
federal agencies and the advertising agencies that purchase digital ads on the federal agencies’
behalf, reflecting requests for information sought by attorneys from the Department of Justice in
anticipation of the instant litigation; and (ii) deposition testimony from two federal agency
employees regarding the nature of inquiries they made to these advertising agencies at the direction
of attorneys from the Department of Justice. Following the inadvertent production of those
communications, and Google’s improper elicitation of that testimony from these individuals,
Plaintiffs clawed back that material because it improperly revealed protected attorney workproduct. Google now asks the Court to compel their re-production. Page 3 PageID#
The Court should deny Google’s motion to compel these three categories of material, Dkt.
305, and its attendant motion for in camera review of the deposition transcripts, Dkt. 301.
Google’s motions would subject to discovery the “focus of [an opposing attorney’s] investigation,”
In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) (internal quotation marks and citation omitted),
revealing the processes underlying its opposing party’s investigation of relevant facts and its
incorporation of those facts into claims in litigation. The Court should decline to order the
production of these materials that are protected, for good reason, under well-established law.
BACKGROUND
I.
Category 1: Inter-Agency Communications Between the Department of Justice
and Federal Agencies Concerning the Litigation
Google’s first set of Requests for Production, served on March 27, 2023, requested, inter
alia, “[a]ll correspondence with any person concerning the [ad tech] Investigation or subject matter
of this Action.” Plaintiffs produced millions of pages of documents responsive to that request,
including documents from the United States’ investigative file, on April 25, 2023 and June 20,
2023.
Because Google’s request could be read to encompass privileged communications between
the Antitrust Division and its federal agency clients concerning the investigation period, the United
States also produced a privilege log on June 26, 2023, detailing its basis for withholding 57 such
documents from production of the Antitrust Division’s investigatory file. 1 The June 26 privilege
log, an excerpt of which is attached to Google’s Motion to Compel as Exhibit 4, details the senders
and recipients of each document, and establishes that each communication occurred between
Section V.8.e of the Court’s ESI Order (Dkt. 142) provides that communications between counsel
for the government and counsel for any federal agency advertiser need not be logged; accordingly,
the June 26 privilege log contained only entries reflecting communications between the
Department of Justice and non-lawyer employees of its client federal agencies. Page 4 PageID#
Department of Justice attorneys working on this case and agency employees regarding [legal
advice or information necessary to provide legal advice concerning] “potential violation[s] of
Section 4A of the Clayton Act related to purchases of digital advertising by agencies and divisions
of the United States government.” See, e.g., Exhibit 4, Mot. to Compel. The United States also
withheld, or inadvertently produced and clawed back, these types of communications from
productions of FAA files. 96 of these documents were clawed back on August 4, 2023. Google has challenged these privilege assertions, and seeks that Plaintiffs (i) produce all
of the documents listed in its June 26 privilege log; (ii) provide a list of Antitrust Division
custodians whose files were searched for purposes of responding to Google’s Request for
Production; and (iii) prepare a privilege log for all communications between the Department of
Justice and counsel for any federal agency advertiser (which the ESI Order expressly excludes
from logging), which Google has indicated it would use to challenge privilege claims over those
communications as well.
II.
Category 2: Intra-Agency Communications Concerning the Litigation
Plaintiffs also withheld documents from productions of FAA files that contain
communications between the FAAs’ internal counsel and employees of those FAAs containing
legal advice or requests for legal advice, as well as work product prepared at the request of the
Antitrust Division to assess claims in this litigation. Because these documents reflect privileged
communications with counsel and protected work product, several of these documents which had
In so doing, Plaintiffs noted that the production of privileged or work-product protected
Documents, electronically stored information (“ESI”), or information, whether in advertent or
otherwise, is not a waiver of the privilege or protection from discovery in this case. See Dkt. (Modified Protective Order) ¶ 12(a). Page 5 PageID#
been inadvertently disclosed were clawed back by Plaintiffs, by their letters dated August 4,
August 14, and August 17, 2023. III.
Category 3: Communications Between Federal Agencies and their Advertising
Contractors, Directed by Counsel, to Gather Information Maintained by
Contractors about Federal Purchases Related to this Litigation
Plaintiffs have also withheld or clawed back communications between federal agencies and
their advertising agencies made at the direction of counsel, which are subject to protection under
the work-product doctrine. Relatedly, by their letter dated August 18, 2023, Plaintiffs clawed back
portions of the depositions of the Executive Director of Brand Marketing for USPS, and the
Director of Marketing for the Navy Recruiting command during the relevant period. The portions
of the USPS transcript that were clawed back involved testimony elicited through the use of
inadvertently-produced documents that the United States had clawed back, including questions
informed by information in those documents that counsel persisted in asking despite Plaintiffs’
repeated objections. The portions of the Navy transcript that were clawed back involved testimony
in which the witness inadvertently disclosed protected attorney work product in response to
Google’s questioning.
Plaintiffs did not, as Google incorrectly asserts, “claw[] back the entirety of both”
deposition transcripts, Mot. to Compel 8-9; rather, the United States made clear that it was clawing
back only specifically-identified portions of those transcripts, and acknowledged its obligation to
provide replacement copies with the required redactions, Ex. 1, Mot. to Compel.
The United States provided a privilege log to these documents on August 8, 2023 and August
23, 2023, attached as Exhibits A and B, with names redacted because they are not material to the
Court’s decision. Page 6 PageID#
ARGUMENT
I.
All of the Documents at Issue Are Subject to Work-Product Protection.
The work-product doctrine shields from discovery “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed.
R. Civ. P. 26(b)(3)(A). All of the documents at issue here—(i) communications between the
Department of Justice and certain other federal agencies regarding the extent to which those
agencies had cognizable claims for damages to be asserted in this case; (ii) intra-agency
communications, including documents to and from agency counsel concerning the litigation; and
(iii) communications between federal agencies and their advertising agencies, conducted at the
direction of counsel and concerning specific requests for information from the Department of
Justice relating to this case—fall within the heartland of Rule 26 protection.
They are
quintessential work product representing the “preparatory work of the other side.” See Advisory
Comm. Notes on Fed. R. Civ. P. 26. Google’s attempt to compel their disclosure and seek witness
testimony on their substance and purpose is manifestly improper.
A. Inter-Agency Communications Between DOJ and Federal Agencies and Intra-Agency
Communications Within FAAs Regarding this Litigation Are Protected Work-Product.
The work-product doctrine applies when actual or anticipated litigation is “the driving
force behind the preparation of the requested documents.” In re Dominion Dental Servs. USA,
Inc. Data Breach Litig., 429 F. Supp. 3d 190, 193 (E.D. Va. 2019) (internal quotation marks and
citation omitted). Accordingly (and as Google has previously acknowledged in this case), whether
a document is protected work product hinges on the purpose for which it was created. See Dkt.
245 (Google Opp. To Pls. Motion to Compel) at 5 (work product protection applies to analysis
“undertaken because of and in response to active government investigations”). The work-product
doctrine safeguards documents “prepared because of the prospect of litigation when the preparer Page 7 PageID#
faces an actual claim or a potential claim following an actual event or series of events that
reasonably could result in litigation.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., F.2d 980, 984 (4th Cir. 1992) (emphasis in original).
Pre-complaint communications between the DOJ and other federal agencies regarding the
prosecution of this action amply satisfy this standard. In the communications at issue, DOJ
attorneys sought, and federal agencies provided, information directly intended to aid the Antitrust
Division in formulating and prosecuting the damages claims in this lawsuit. See E.I. Dupont De
Nemours and Co. v. Kolon Indus., Inc., 2010 WL 11432920, at *1 (E.D. Va. Aug. 13, 2010)
(documents prepared “for the purpose of showing loss in one case and damages in another” are
“protected under the work product doctrine”). The information exchanged in these
communications included the nature and extent of purchases of digital advertising by those
agencies, which—as Google itself appears to acknowledge, see Mot. to Compel 14-15—bears
directly on the United States’ decisions as to the scope and content of the present case. Intraagency communications concerning the FAAs’ responses to the Department of Justice’s
investigational requests are no different. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d
1215, 1219 (4th Cir. 1976) (work product immunity “applies equally to lawyers and non-lawyers
alike,” as long as the relevant document was prepared “in anticipation of litigation”); United States
v. Berkeley Heartlab, Inc., 2017 WL 11673309, at *2 (D.S.C. Dec. 1, 2017) (document prepared
by government non-attorney “at the direction of counsel to provide counsel with information
needed to provide legal advice” was “protected work product”). Given that these communications
were about this case, they would not have been “created in essentially the same form in the absence
of litigation.” Dominion, 429 F. Supp. 3d at 193. Indeed, they would not have been created at all. Page 8 PageID#
Tellingly, Google does not suggest that these communications “would have been done in
any event.” 4 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007). Instead,
Google’s only argument as to why these communications should be disclosed is a bald assertion
that the “driving force” of these communications was merely to understand “how federal agencies
purchase digital advertising” generally, Mot. to Compel 13—i.e., without relation to the
formulation of Plaintiffs’ complaint that was already in draft form and was filed just weeks later
on the same subject, featuring damages claims on behalf of many of the same agencies included
in these communications. Google’s assertion strains credulity and would require the Court to
ignore both common sense and the United States’ privilege log, which states the purpose of the
communications. Courts evaluate the applicability of the work-product protection by reference to
“the nature of the document and the factual situation in the particular case.” Rotunda v. Zengerle,
2010 WL 11695254, at *2 (E.D. Va. Apr. 30, 2010) (citing 8 Wright & Miller, Federal Practice &
Procedure § 2024).
Here, “objective facts” relating to the substance and timing of the
communications plainly establish “an identifiable resolve to litigate prior to the . . . events and
efforts reflected in the document,” id., as well as a clear nexus between the communications and
“an actual claim or a potential claim following an actual event or series of events that reasonably
could result in litigation,” Nat’l Union, 967 F.2d at 984.
Indeed, Google concedes that the purpose of these communications was to aid the United States
in formulating the damages claims in this litigation. See Mot. to Compel 2 (describing
communications as “reach[ing] out to . . . FAAs to try to construct a damages claim”).
Google also appears to suggest that the work-product doctrine should not apply because many of
the agencies with whom the Department of Justice communicated “are not even parties to this
case.” Mot. to Compel 13. They do not need to be. The strategic litigation decision not to bring
claims on behalf of those agencies derives from the very same work product that would reveal
DOJ strategy and opinions in advising those agencies. In addition, Rule 26, by its plain language,
protects materials prepared “by or for another party or for another party’s representative.” Fed. R.
Civ. P. 26(b)(3) (emphasis added); see also Virginia Elec. & Power Co. v. Sun Shipbuilding &
Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975) (“In essence, if anyone prepares documents for Page 9 PageID#
B. Communications Between Federal Agencies and their Advertising Agencies at the
Direction of Counsel, as well as Deposition Testimony Regarding Those
Communications, Are Protected Under the Work-Product Doctrine.
The communications at issue between federal agencies and their advertising agencies are
also classic work product. In those documents, representatives of federal agencies—acting under
direction of counsel—reached out to advertising agencies with whom they worked that maintained
information on their behalf to gather information for the specific purpose of formulating this
litigation. Courts in this Circuit have plainly and consistently held that such communications “fall
squarely within the work product doctrine.” Peters v. Aetna Inc., 2018 WL 3616923, at *(W.D.N.C. July 27, 2018); see also, e.g., Allen, 106 F.3d at 608 (“information [attorney] gained
from [third party]” was protected opinion work product because it “tend[ed] to indicate the focus
of her investigation, and hence, her theories and opinions regarding this litigation”); Front Royal
Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 258-59 (W.D. Va. 1999) (statements by a third
party “taken by an independent investigator at the direction of counsel” were protected under the
work-product doctrine); Temporary Servs., Inc. v. AIG, Inc., 2012 WL 13005977, at *2 (D.S.C.
Jan. 18, 2012) (“Defendants argue that because Nowak and Gaillard were directed by AIG’s
counsel to investigate and report about facts relating to the premium report, the results of these
investigations are protected by the work product doctrine. The court agrees that the results of the
investigations performed by Nowak and Gaillard at the direction of counsel are protected under
the work product doctrine.”).
a party in anticipation or for trial, documents so prepared are not discoverable . . . .”) (emphasis
added). The case cited by Google on this point, Spilker v. Medtronic, Inc., 2015 WL 12851391,
at *2-3 (E.D.N.C. Jan. 6, 2005), speaks only to whether non-parties may invoke Rule 26(b)(3)—
an entirely inapposite proposition given that the party invoking the privilege here is the United
States. Page 10 PageID#
Google declines to even acknowledge this blackletter principle in its motion, instead
hinging its position on an irrelevant contention that “[t]he advertising agencies are independent
third-parties that do not work at the direction of ATR.” Mot. to Compel 11. That misleading
framing obfuscates two key points—first, that the federal agencies who communicated with the
advertising agencies were representatives of the United States, acting under direction of counsel
to gather information relevant to the United States’ specific or potential claims on behalf of the
federal agencies relating to the work the advertising agencies were contracted to perform; and
second, that Rule 26 expressly provides that the work product doctrine applies to material prepared
“for any party or its representative,” Fed. R. Civ. P. 26(b)(3) (emphasis added), i.e., including
material produced by advertising agencies for a federal agency, in response to a request for
information issued at the direction of counsel.
The cases Google cites—all of which involve discovery material lacking the crucial
element of having been developed for a party’s representative at the specific request of counsel—
come nowhere close to rebutting the applicability of work-product protection on these facts. 6 For
example, Google points to In re Grand Jury Proceedings, 102 F.3d 748, 752 (4th Cir. 1996), an
inapposite case in which a report prepared by a bank’s consultant—prepared without any
attorney’s involvement or request—was disclosed in discovery. Echavarria v. Roach, 2019 WL
6893034, at *3 (D. Mass. Dec. 17, 2019), likewise permitted the disclosure of documents that had
been prepared by a third party without any attorney involvement or request. See also Goff v. U.S.
Rentals (N. Am.), Inc., 2017 WL 1179158, at *2-3 (E.D. Va. Mar. 28, 2017) (same); Addi v.
Corvias Mgmt.-Army, LLC, 339 F.R.D. 594, 598 (D. Md. 2021) (same). Burwell v. Peyton,
Indeed, some concede precisely the United States’ point. See Mot. to Compel at 12 (citing In re
Lumber Liquidator, 2015 WL 9474286, at *2 (E.D. Va. Dec. 28, 2015) (communications with
client’s agents that “related to legal rather than business matters” are privileged)). Page 11 PageID#
WL 12717390, at *3 (D. Vt. Apr. 17, 2014), is even further afield—there, the court permitted
disclosure of a therapist’s notes regarding a conversation that happened to include a discussion of
ongoing litigation. Id. The only proposition that these cases support is Google’s right to seek
ordinary-course discovery from the individuals on these communications regarding the underlying
facts of how they conduct their business, including the business relationship between federal
agencies and advertising agencies. But none of these cases in any way supports Google’s brazen
suggestion that a communication made for the purpose of responding to a request for information
directed by counsel must be disclosed notwithstanding the work-product doctrine.
Google also appears to contend that the DOJ has waived work-product protection by
communicating, through the federal agencies, with advertising agencies that are “no different than
any other third parties,” such as “The Trade Desk, or Microsoft, or Meta.” Mot. to Compel (citing Johnson v. Baltimore Police Dep’t, 2021 WL 1985014 (D. Md. May 18, 2018), and SEC v.
Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012), two waiver cases). That premise is equally wrong.
The advertising agencies here are not unrelated third parties simply because they are not the federal
agencies’ legal consultants; they work directly with the federal agencies on the subject of this
litigation and maintain information regarding the federal agencies’ purchases necessary to the
evaluation of those purchases by counsel. As Google’s own cited case explains, “[d]isclosure to a
person with an interest common to that of the attorney or the client generally will not result in
waiver,” which includes communications between a plaintiff’s “collaborators” (as distinguished
from a plaintiff’s “agent”). Johnson, 2021 WL 1985014, at *2-3; see also In re Doe, 662 F.2d
1073, 1081 (4th Cir. 1981) (“actions effectuating the forfeiture or waiver must be consistent with
a conscious disregard of the advantage that is otherwise protected by the work product rule”);
Maxtena, Inc. v. Marks, 2014 WL 4384551, at *23 (D. Md. Sept. 2, 2014) (“mere disclosure to a Page 12 PageID#
third party” is not tantamount to waiver); In re Smith & Nephew, 2019 WL 2330863, at *4-5 (D.
Md. May 31, 2019) (no waiver by sharing documents with consultant because “[t]here was no
indication that [the consultant’s] interests departed from Smith & Nephew’s”).
C. Google Cannot Establish a Substantial Need and Undue Hardship to Overcome the WorkProduct Doctrine.
Unable to contest the applicability of the work-product doctrine to these categories of
communications, Google turns to insisting that these documents “reflect purely factual
information,” and that it has a “substantial need” to obtain these documents which cannot be
obtained “by alternate means without undue hardship.” Mot. to Compel 14. To compel disclosure
of these communications, Google bears the burden of satisfying both of these requirements. See
In re Grand Jury, 102 F.3d at 750; see also Sanford v. Virginia, 2009 WL 2947377, at *2 (E.D.
Va. Sept. 14, 2009). It has satisfied neither.
First, contrary to Google’s characterizations, the communications at issue reflect opinion
work product that is “absolutely protected from discovery.” Sanford, 2009 WL 2947377, at *2.
Opinion work product reflects the “mental impressions, conclusions, opinions, and legal theories
concerning the litigation,” id., and courts “carefully guard opinion work product from disclosure
to an opposing party, fearing that otherwise ‘[a]n attorney’s thoughts, heretofore inviolate, would
not be his own,’” Allen, 106 F.3d at 607 (citing Hickman v. Taylor, 329 U.S. 495, 511 (1947)).
Allen made clear the bedrock principle that a document which tends to “indicate the focus of [an
attorney’s] investigation, and hence, her theories and opinions regarding this litigation,” represents
opinion work product “absolutely immune from discovery.” 106 F.3d at 608. Crucially, that
principle extends to documents that reveal an attorney’s selection of underlying facts or issues—
even if the underlying facts are themselves discoverable—because the “selection and compilation Page 13 PageID#
of particular documents reveals [an] attorney’s thought processes and theories regarding this
litigation.” Id.; see also, e.g., Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986)
(attorney’s “selective review” of certain underlying facts “was based on her professional judgment
of the issues and defenses involved in this case”).
In its motion, Google repeatedly asserts that the communications involve requests for
“factual” information. Mot. to Compel 14, 20, 21. But that conflates the issues at play: Google’s
motion to compel does not seek only that factual information; it seeks disclosure of the
communications themselves, which necessarily reflect the government’s thinking as to the
litigation, in plain contravention of Allen and its progeny. Google’s last-minute suggestion that
these documents may be redacted to exclude “protected information (attorney impressions, for
example),” Mot. to Compel 17, does not save its motion. 7 The communications at issue—internal
discussions regarding the government’s damages on the one hand, and requests for information
relevant to a specific element of the government’s liability claim on the other—plainly reflect
requests for “specific documents tending to prove a specific legal theory,” GMS Indus. Supply,
Inc. v. G&S Supply, Inc., 2021 WL 2492473, at *4 (E.D. Va. May 5, 2021), which cannot be
redacted without rendering the documents meaningless.
Second, regardless of whether the communications are fact or opinion work product,
Google has failed to show a “substantial need” for these communications, and has likewise failed
to show that their “substantial equivalent” cannot be obtained without undue hardship. In sum,
Google’s argument boils down to an assertion that it should be able to obtain these documents
because the “commercial realities of how industry participants define the market for available
Google’s questioning at depositions regarding the purpose for which FAAs gathered particular
information belies this contention. Page 14 PageID#
advertising” are relevant to its argument on market definition. Mot. to Compel 14-15. Yet this
argument has anything to do with the government’s inter-agency communications regarding the
United States’ damages claims; Google’s proffered justifications concern only federal agencies’
communications with their advertising agencies.
Even as to the federal agencies’ communications with their advertising agencies, Google
offers no real explanation—other than its strategic interest in not having to use its “ten party
depositions, and twenty non-party depositions,” id. at 16—for why it cannot simply depose
purchasers of digital advertising, including these very ad agencies, as to their views on the market.
Indeed, Google has already arranged to take the depositions of ad agencies on this very question.
Under these circumstances, courts, in their discretion, have consistently rejected movants’ tactical
decisions not to take certain discovery in the hopes of obtaining it through protected work product.
See Sanford, 2009 WL 2947377, at *2 (work-product doctrine “forbids” disclosure where “a party
does not make any showing that other witnesses were unknown to it or unavailable to testify”)
(citing In re Grand Jury Subpoena, 622 F.2d 933, 935 (6th Cir. 1980)); Arugu v. City of Plantation,
2010 WL 11515702, at *9 (S.D. Fla. Oct. 26, 2010).
Recognizing that its position would improperly reduce the “substantial need” inquiry “to a
simple question of relevance,” Sanford, 2009 WL 2947377, at *3, Google attempts to reframe the
protected communications as being uniquely “contemporaneous,” citing two cases dealing with
eyewitness accounts of automobile accidents and accidental fires, see Mot. to Compel 15. But
those cases have no relevance here, where the issue on which Google claims substantial need
(advertising purchasers’ views on the market) is amply documented, rather than consigned to a
witness’s memory compromised by the “passage of time.” See Coogan v. Cornet Transp. Co.,
Inc., 199 F.R.D. 166, 167 (D. Md. 2001). Google’s twin assertion that any potential witness would Page 15 PageID#
later give compromised, undetailed testimony tainted by “attorney-education,” Mot. to Compel
15-16, fares no better. Nothing in the record suggests, much less substantiates, Google’s rank
speculation that a witness would give incomplete or false testimony under oath on these questions. At bottom, Google has failed to make the showing necessary to obtain otherwise protected
documents.
II.
The Inter- and Intra-Agency Communications at Issue Are Subject to the
Attorney-Client Privilege.
A. The Inter-Agency
Communications.
Communications
at
Issue
Are
Privileged
Attorney-Client
In addition to being protected work product, the inter-agency communications at issue are
also protected by attorney-client privilege. That set of documents is composed entirely of
communications between the DOJ and federal agencies for the purpose of aiding DOJ attorneys in
forming and providing legal advice as to whether those same federal agencies were injured by
Google’s conduct, and therefore whether the United States has cognizable claims for damages
under Section 4A of the Clayton Act.
Accordingly, these documents represent privileged
communications between an attorney (the DOJ attorneys working on this case) and its client (the
federal agencies), for the purpose of furnishing legal advice (the damages claims asserted in this
lawsuit). See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (asserting privilege
requires both attorney-client relationship and request or provision of legal advice); see also In re
Google’s citation to United States v. Booz Allen Hamilton, Inc., 2022 WL 3921019, at *2-3 (D.
Md. Aug. 31, 2022), is also inapposite. That case, as Google acknowledges, dealt with a situation
where a deposition could not substitute for protected work product because the deposition’s
usefulness “may be limited . . . without the requested documents.” Id. at *4. There, the protected
documents themselves (“an employee’s detailed timeline”) would have served as key exhibits to
the witness’s testimony during a deposition. Id. Here, there is no reason why the federal agencies’
requests for certain information would be a necessary referent for advertising agencies’ testimony
regarding the underlying facts requested. Page 16 PageID#
Grand Jury Investigation, 399 F.3d 527, 535 (2d Cir. 2005) (“The government attorney requires
candid, unvarnished communication from those employed by the office he serves so that he may
better discharge his duty to that office.”).
Attorney-Client Relationship. Just as the purpose of a general counsel’s office is to handle
litigation on behalf of a company, the DOJ is statutorily charged with acting as the attorney of the
United States and its agencies. See 28 U.S.C. § 516 (“[T]he conduct of litigation in which the
United States, an agency, or officer thereof is a party, or is interested, and securing evidence
therefor, is reserved to officers of the Department of Justice, acting under the direction of the
Attorney General.”). 9 By statute, the DOJ is specifically and exclusively authorized— indeed,
required—to enforce the antitrust laws, including through damages claims on behalf of the United
States when it is injured in its business or property. 15 U.S.C. § 4; 15 U.S.C. § 15a.
The thrust of Google’s argument is that this Court should treat the Department of Justice’s
communications with its agency clients as identical to “the discoverable intake that a plaintiff does
on potential clients or claims before any attorney-client relationship is formed.” Mot. to Compel
1-2; see also id. at 18 (characterizing communications as being similar to “letters to potential
plaintiffs or class representatives”). That extraordinary assertion is both factually and legally
meritless. Courts have overwhelmingly held that “an attorney-client relationship exists between
[federal agencies] and the [Department of Justice] in connection with anticipated litigation.” Town
of Norfolk v. U.S. Army Corps of Engr’s, 968 F.2d 1438, 1457-58 (1st Cir. 1992); see also, e.g.,
Hall & Assocs. v. EPA, 633 F. Supp. 3d 35, 53 (D.D.C. 2022) (“[T]he agency is typically the
‘client’ and the agency’s lawyers (or lawyers at the Department of Justice) are typically the
See also 28 U.S.C. § 519 (prohibiting any “Executive department or military department” from
“employ[ing] an attorney or counsel for the conduct of litigation,” and requiring such agency to
instead “refer the matter to the Department of Justice”). Page 17 PageID#
‘attorneys’ for purposes of the attorney-client privilege.”); United States v. Acquest Transit LLC,
319 F.R.D. 83, 99 (W.D.N.Y. 2017) (disclosure improper “because attorney-client relationship
exists between the Department of Justice and the agencies”); N.Y. Times Co. v. U.S. Dep’t of
Justice, 282 F. Supp. 3d 234, 239-40 (D.D.C. 2017) (distinguishing the attorney-client relationship
between NSA and DOJ from other relationships involving a “true third party”); LSB Indus., Inc.
v. C.I.R., 556 F. Supp. 40, 42 (W.D. Ok. 1982) (“The privilege applies where the client is a
corporation and the attorney is in-house counsel, or whether the client is the United States and its
administrators and the attorney is either in the agency or in the Department of Justice.”). The law
speaks directly to the communications at issue, where the DOJ was advising the United States and
its agencies—for which it was already an attorney charged by statute with identifying and
pursuing antitrust damages claims on behalf of—regarding the availability and propriety of
bringing damages claims in imminently-anticipated litigation.
Google cites no support to the contrary. Indeed, the single case it identifies that so much
as mentions a claim for attorney-client privilege between the Department of Justice and its agency
clients is Stonehill v. U.S. Department of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C.
Feb. 10, 2022), where the attorney-client privilege was denied solely for its claimant’s “lack of
detail” in describing why it applied. There, the court considered a document identified as “one email between DOJ-Tax attorney and an Internal Revenue Service employee,” and found that
without any further information about the “subject matter of the email,” it could not conclude that
the “communication was confidential or even legal in nature.” Id. Here, by contrast, the
government has specifically identified the legal context of the communications in its privilege log, Page 18 PageID#
see Mot. to Compel 5, clearly denoting that the communications dealt with the DOJ’s agency
clients in the context of developing a damages claim under Section 4A of the Clayton Act. Legal Advice. In addition, the communications at issue—including both the DOJ’s
requests for information necessary to evaluate damages claims brought on behalf of certain federal
agencies and those federal agencies’ responses to these requests—were made for the purpose of
securing legal advice. The key question in the Fourth Circuit in determining whether investigative
communications are protected under the attorney-client privilege is “whether this investigation
was related to the rendition of legal services.” Allen, 106 F.3d at 603. As recounted in detail
above, communications intended to develop the United States’s damages claims amply satisfy this
criterion. See Boundy, 2023 WL 2567350, at *9 (emails in which government attorneys “seek
information to assist them” in evaluating “the subject of [the] litigation . . . fall squarely within the
attorney-client privilege”).
Google does not dispute that these communications were made for the sole purpose of
developing the damages claims brought in this lawsuit.
See Mot. to Compel 2 (relevant
correspondence was made to “construct a damages claim”). Instead, it entreats this Court to find
that communications “requesting factual information” are categorically excluded from the
attorney-client privilege. Mot. to Compel 20 (emphasis in original). The lack of any citation for
this assertion is telling—the law holds the precise opposite. See Allen, 106 F.3d at 603 (in the
Fourth Circuit, “fact finding which pertains to legal advice counts as professional legal services”);
To the extent that Google suggests that there is a difference between the federal agencies on
whose behalf the United States asserted claims in the complaint and the federal agencies on whose
behalf damages claims ultimately were not asserted, such a distinction does not alter the existence
of an attorney-client relationship. The attorney-client privilege applies to communications even
with potential clients. See Stradtman v. Republic Servs., Inc., 2015 WL 2451850, at *2 (E.D. Va.
May 21, 2015). Page 19 PageID#
In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir. 1979) (factual investigation by law firm
for the purpose of providing legal advice based on that investigation “trigger[s] the attorney-client
privilege”); FTC v. Boehringer Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 30 (D.D.C. 2016)
(“For the attorney-client privilege . . . facts collected at counsel’s request for later use in providing
legal advice are protected.”).
Google’s cherry-picked quotations from two depositions, see Mot. to Compel 19-20,
cannot rescue its argument. In portions of those depositions that Google declines to highlight, both
deponents make clear that they had been asked to provide information relevant to the DOJ’s claims,
and that they could not testify further as to the nature of those requests because they contained
privileged information. 11 Considering these deposition excerpts in their proper context, Google
has shown nothing other than the fact that certain agency employees had not themselves reached
out to the Antitrust Division to initiate a claim, and did not ordinarily interact with the Antitrust
Division in the scope of their ordinary duties. That is neither surprising nor relevant. None of this
changes the fact that the communications at issue involved requests coming from the Department
of Justice—the counsel of the United States—in aid of a specific legal investigation. That is all
the law requires. See Upjohn, 449 U.S. at 394 (requests that identify the requesting party as an
attorney and which explain the applicability of requested facts to an existing legal investigation
protected under attorney-client privilege).
See Ex. 14, Mot. to Compel at 57:10-58:4 (“Q. And do you know why Department of Commerce
was asking about Google ads and digital advertising for the 2020 -- 2020 census in January of
2023? . . . If you can answer that question without relying on privileged communications -- on
communications between yourself and lawyers for the Department of Commerce, that’s what I am
asking for in your answer. A. I can’t answer. Q. Is that because you only have an understanding
based on privileged communications? A. Yes.”); Ex. 15, Mot. to Compel at 3 (“Q. To what extent
has anybody at the Department of Justice ever asked you to provide information about the Army’s
advertising business? MR. MCBIRNEY: Objection. Privileged. Instruct the witness not to
answer. Q. Are you going to follow that instruction, sir? A. Yes.”). Page 20 PageID#
B. The Intra-Agency Communications at Issue Are Subject to the Attorney-Client Privilege.
The intra-agency communications here—i.e., communications between the FAAs’ internal
counsel and employees of those FAAs containing legal advice or requests for legal advice, as well
as work product prepared at the request of the Antitrust Division to assess claims in this litigation—
are privileged for much of the same reasons discussed in Section II.A, supra. Google does not
dispute that, for the subset of these documents representing discussions between agency counsel
and agency employees, those communications are definitional attorney-client communications.
See Rein, 553 F.3d at 376 (“An agency can be a client and agency lawyers can function as attorneys
within the relationship contemplated by the privilege.”) (internal quotation marks omitted); Mead
Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977) (the
attorney-client privilege extends to “communications between attorneys and all . . . employees of
the organization who are authorized to speak for the organization in relation to the subject matter
of the communication). And even for those communications between non-lawyers within the
agencies responding to the Department of Justice’s requests for information, the attorney-client
privilege attaches because they were “transmitted . . . to relay information requested by attorneys.”
Santrade, Ltd. v. Gen. Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993); see also Upjohn Co. v.
United States, 449 U.S. 383, 390 (1981) (privilege extends to communications between nonlawyers relating to the “giving of information to the lawyer to enable him to give sound and
informed advice”).
III.
Inter-Agency Communications Between the DOJ and Federal Agencies for the
Purpose of Formulating Its Legal Strategy in this Lawsuit Are Subject to the
Deliberative-Process Privilege.
The documents reflected on Plaintiffs’ June 26 privilege log are likewise exempt from
disclosure under the deliberative-process privilege. The privilege protects interagency documents Page 21 PageID#
that are both “predecisional” and “deliberative.”
City of Virginia Beach v. U.S. Dep’t of
Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993). Google makes no attempt to contest that the
communications at issue are “predecisional,” as they were indisputably conducted prior to an
agency’s decision: the content of the complaint filed in this case. See Mot. to Compel 21-23; see
also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991) (deliberative-process
exemption applies to an agency’s thinking regarding the filing of a civil enforcement action).
Thus, the only contested issue is whether the communications are also “deliberative.” The relevant
documents satisfy this standard.
A document is “deliberative” if it was “prepared to help the agency formulate its position.”
U.S. Fish & Wildlife Serv. v. Sierra Club, Ind., 141 S. Ct. 777, 786 (2021). Yet again, Google
attempts to circumvent the fact that these communications were prepared to help the Department
of Justice “formulate its position” in the operative complaint by characterizing those documents
as predominantly factual in nature, rather than reflective of deliberation relating to the agency’s
opinions. Mot. to Compel 22. But one of the cases that Google itself cites, Playboy Enters., Inc.
v. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982), explains exactly why that position is
untenable. There, the D.C. Circuit, discussing its prior decision in Montrose Chemical Corp. v.
Train, 491 F.2d 63, 68 (D.C. Cir. 1974), explained that the “factual versus deliberative distinction”
was “inadequate to resolve the difficult question” of whether the gathering of facts should be
exempt from disclosure under the deliberative-process privilege. The court explained that whereas
the communication of factual material was not protected where it was “prepared only to inform
the Attorney General of facts which he in turn would make available to members of Congress,”
the communication of factual material was protected where it was “prepared for the sole purpose
of assisting the [requesting agency] to make a complex decision” in a legal proceeding. Playboy Page 22 PageID#
Enters., 677 F.2d at 936; see also Rein, 553 F.3d at 371 n.26 (factual material is subject to
deliberative-process privilege if it would “indirectly reveal the advice, opinions, and evaluations
circulated within the agency as part of its decision-making process”). By the standard set forth in Google’s own cited precedent, the deliberative-process inquiry
hinges on whether the factual material communicated was the predicate for a later decision, such
that its disclosure would “permit[] inquiry into the mental processes of the [agency] by revealing
what materials [it] considered significant in reaching a proper decision,” Playboy Enters., 677 F.2d
at 936, rather than “lend[ing] no more than inferences that are essentially similar to the findings
which preceded it,” Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Baltimore, 508 F.2d 945,
948 (4th Cir. 1974). The communications at issue fall cleanly in the former category. It is not
merely the facts themselves, but Plaintiffs’ undisputed purpose in gathering them (incorporation
into a broader, discretionary agency decision as to how to formulate its antitrust claims), reflected
in their contents and context, that renders the deliberative-process privilege applicable here.
Thus, the deliberative-process privilege shields from disclosure the Department of Justice’s
communications with other federal agencies regarding the nature and extent of their damages
claims. And although Google contends that the Court should nevertheless order their disclosure
because of its substantial need to probe their relevance to the “market definition” inquiry in this
Google also describes Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1250 (4th Cir. 1994), in an
explanatory parenthetical, as holding that the “deliberative process privilege does not protect the
exchange of facts and information in the course of an investigation.” Mot. to Compel at (emphasis in original). The suggestion that Ethyl Corp. stated such a categorical rule is misleading.
Ethyl Corp. held that a Vaughn index (the equivalent of a privilege log in the FOIA context) that
“fail[ed] to identify either the author or its recipient” for a certain tranche of documents could not
support a deliberative-process claim for documents whose authors’ “relationships to the
decisionmaking process cannot be identified.” 25 F.3d at 1250. Unlike in Ethyl Corp., where
“little information [was] provided . . . for testing the [government]’s deliberative process privilege
claims,” those key facts are plainly present in the United States’s June 26 privilege log. Page 23 PageID#
case, the Court should reject its bid for the same reason as discussed supra in Section I.C. See
§ I.C (no showing of substantial need nor inability to obtain substantial equivalent). There is no
reasonable means of producing redacted versions of these documents to limit them to their factual
content; in this context, the facts provided illuminate the government’s thinking behind the
questions asked, and reveal the factual predicates found appropriate (or not appropriate) for
inclusion in this lawsuit. If Google believes that agency employees’ underlying views—divorced
from the deliberative process—are crucial to its market definition argument, it has every
opportunity to explore those views in the standard course of discovery.
IV.
Neither In Camera Review Nor Modification of Section V.8.e of the ESI Order Is
Warranted.
Through its detailed privilege logs and correspondence, Plaintiffs have satisfied their initial
burden of establishing the applicability of the work-product doctrine, the attorney-client privilege,
and the deliberative-process privilege to the various categories of documents and testimony at
issue here. See Jones, 696 F.2d at 1072. Requesting in camera review does not obviate a movant’s
responsibility to sustain a legally and factually tenable position on why certain protected
documents should be disclosed; instead, the moving party must make a “showing of a factual basis
adequate to support a good faith belief by a reasonable person that an exception to the privilege
may apply.” In re Zetia (Ezetimibe) Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16,
2019); see also Glaxo, Inc. v. Novopharm Ltd., 148 F.R.D. 535, 540 n.3 (E.D.N.C. 1993) (“If this
court were to review each and every document withheld as privileged in litigation . . . for no reason
other than counsel’s distrust of his adversary, this courthouse could hardly function.”).
Google’s request that the Court review in camera the documents at issue, as well as the
entirety of two deposition transcripts, fails at the threshold. The only facts it can point to in support
of in camera review are the “[e]xhibits and testimony of FAA witnesses,” Mot. to Compel 24, but Page 24 PageID#
for the reasons discussed supra, none of those proffered “facts”—even taken as presented—
undermine any of the key reasons why the various privileges apply here. They do not, for instance,
suggest that litigation was merely a theoretical possibility (rather than the driving force behind
these communications), nor does anything in Google’s brief contradict that the purpose of those
communications was to inform the legal advice or decision-making of the United States. In camera
review is not appropriate in these circumstances.
This Court should likewise decline Google’s invitation to modify Section V.8.e of the ESI
Order, which excludes from the parties’ privilege log obligations any “[d]ocuments or
communications sent solely between counsel for the United States (or persons employed by the
United States Department of Justice) and counsel for any Federal Agency Advertiser.” Dkt. § V.8.e. Although the ESI Order provides for modification upon “good cause” shown, id. at n.5,
Google has not made any such showing. For the reasons discussed above, neither the June privilege log nor the “testimony adduced in FAA depositions” imply any attempt to conceal
“improper privilege assertions.” Mot. to Compel 25. Those assertions are amply supported in fact
and in law, leaving no “good cause” to modify the ESI Order, to which Google agreed and the
Court ordered.
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court deny in
full Google’s Motion to Compel Documents and Testimony Withheld as Privileged (Dkt. 305),
and Google’s Motion for In Camera Review (Dkt. 301). Page 25 PageID#
Dated: August 23, Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@usdoj.gov
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Aaron Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 307-Fax: (202) 616-Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
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)
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No. 1:23-cv-00108-LMB-JFA
UNITED STATES’ CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTIONS TO COMPEL AND FOR IN CAMERA REVIEW
This dispute arises from Google’s attempts to obtain three categories of material exempt
from discovery under the work-product doctrine, attorney-client privilege, and/or deliberativeprocess privilege. Google’s discovery requests are improper under controlling law, and nothing
in its papers supports the production of these protected documents on the basis of substantial need.
The first category is composed of inter-agency e-mail communications between the United
States Department of Justice and other federal agencies, including the Federal Agency Advertisers
(“FAAs”) that are plaintiffs in this case, regarding their purchases of digital advertising. Those
communications were made in anticipation of this litigation, for the purpose of providing legal
advice regarding the United States’ potential claims under Section 4A of the Clayton Act, and
conducted in the course of Department of Justice staff providing opinions and recommendations
in connection with decisions on the filing of this litigation, including the scope and content of its
damages claims on behalf of those federal agencies. These documents are not, as Google glibly
suggests, similar to the “intake that a plaintiff firm does on potential clients.” Dkt. 305 (“Mot. to
Compel”) at 1-2. On their face, they are communications between federal agencies (actual, not
potential clients) and attorneys from the Department of Justice (the agencies’ actual, not potential,
1
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attorneys). These are confidential documents protected under the work-product doctrine, attorneyclient privilege, and deliberative-process privilege.
The second category of documents is composed of intra-agency e-mail communications
between the FAAs’ internal counsel and employees of those FAAs containing legal advice or
requests for legal advice, as well as work product prepared by the FAAs at the request of the
Antitrust Division to assess claims in this litigation. Those, too, are protected from discovery.
Discussions between agency counsel and agency employees regarding an ongoing legal
investigation have long been held to be protected attorney-client communications, see Boundy v.
U.S. Patent & Trademark Office, 2023 WL 2567350, at *9 (E.D. Va. Mar. 17, 2023) (emails in
which government attorneys “seek information to assist them” in evaluating “the subject of [the]
litigation . . . fall squarely within the attorney-client privilege”), and documents prepared for the
specific purpose of assisting attorneys in investigating legal claims are protected work product that
would not have existed in the same form absent the litigation.
The third category of documents is composed of: (i) e-mail communications between
federal agencies and the advertising agencies that purchase digital ads on the federal agencies’
behalf, reflecting requests for information sought by attorneys from the Department of Justice in
anticipation of the instant litigation; and (ii) deposition testimony from two federal agency
employees regarding the nature of inquiries they made to these advertising agencies at the direction
of attorneys from the Department of Justice. Following the inadvertent production of those
communications, and Google’s improper elicitation of that testimony from these individuals,
Plaintiffs clawed back that material because it improperly revealed protected attorney workproduct. Google now asks the Court to compel their re-production.
2
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The Court should deny Google’s motion to compel these three categories of material, Dkt.
305, and its attendant motion for in camera review of the deposition transcripts, Dkt. 301.
Google’s motions would subject to discovery the “focus of [an opposing attorney’s] investigation,”
In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) (internal quotation marks and citation omitted),
revealing the processes underlying its opposing party’s investigation of relevant facts and its
incorporation of those facts into claims in litigation. The Court should decline to order the
production of these materials that are protected, for good reason, under well-established law.
BACKGROUND
I.
Category 1: Inter-Agency Communications Between the Department of Justice
and Federal Agencies Concerning the Litigation
Google’s first set of Requests for Production, served on March 27, 2023, requested, inter
alia, “[a]ll correspondence with any person concerning the [ad tech] Investigation or subject matter
of this Action.” Plaintiffs produced millions of pages of documents responsive to that request,
including documents from the United States’ investigative file, on April 25, 2023 and June 20,
2023.
Because Google’s request could be read to encompass privileged communications between
the Antitrust Division and its federal agency clients concerning the investigation period, the United
States also produced a privilege log on June 26, 2023, detailing its basis for withholding 57 such
documents from production of the Antitrust Division’s investigatory file. 1 The June 26 privilege
log, an excerpt of which is attached to Google’s Motion to Compel as Exhibit 4, details the senders
and recipients of each document, and establishes that each communication occurred between
1
Section V.8.e of the Court’s ESI Order (Dkt. 142) provides that communications between counsel
for the government and counsel for any federal agency advertiser need not be logged; accordingly,
the June 26 privilege log contained only entries reflecting communications between the
Department of Justice and non-lawyer employees of its client federal agencies.
3
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Department of Justice attorneys working on this case and agency employees regarding [legal
advice or information necessary to provide legal advice concerning] “potential violation[s] of
Section 4A of the Clayton Act related to purchases of digital advertising by agencies and divisions
of the United States government.” See, e.g., Exhibit 4, Mot. to Compel. The United States also
withheld, or inadvertently produced and clawed back, these types of communications from
productions of FAA files. 96 of these documents were clawed back on August 4, 2023. 2
Google has challenged these privilege assertions, and seeks that Plaintiffs (i) produce all
of the documents listed in its June 26 privilege log; (ii) provide a list of Antitrust Division
custodians whose files were searched for purposes of responding to Google’s Request for
Production; and (iii) prepare a privilege log for all communications between the Department of
Justice and counsel for any federal agency advertiser (which the ESI Order expressly excludes
from logging), which Google has indicated it would use to challenge privilege claims over those
communications as well.
II.
Category 2: Intra-Agency Communications Concerning the Litigation
Plaintiffs also withheld documents from productions of FAA files that contain
communications between the FAAs’ internal counsel and employees of those FAAs containing
legal advice or requests for legal advice, as well as work product prepared at the request of the
Antitrust Division to assess claims in this litigation. Because these documents reflect privileged
communications with counsel and protected work product, several of these documents which had
2
In so doing, Plaintiffs noted that the production of privileged or work-product protected
Documents, electronically stored information (“ESI”), or information, whether in advertent or
otherwise, is not a waiver of the privilege or protection from discovery in this case. See Dkt. 203
(Modified Protective Order) ¶ 12(a).
4
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been inadvertently disclosed were clawed back by Plaintiffs, by their letters dated August 4,
August 14, and August 17, 2023. 3
III.
Category 3: Communications Between Federal Agencies and their Advertising
Contractors, Directed by Counsel, to Gather Information Maintained by
Contractors about Federal Purchases Related to this Litigation
Plaintiffs have also withheld or clawed back communications between federal agencies and
their advertising agencies made at the direction of counsel, which are subject to protection under
the work-product doctrine. Relatedly, by their letter dated August 18, 2023, Plaintiffs clawed back
portions of the depositions of the Executive Director of Brand Marketing for USPS, and the
Director of Marketing for the Navy Recruiting command during the relevant period. The portions
of the USPS transcript that were clawed back involved testimony elicited through the use of
inadvertently-produced documents that the United States had clawed back, including questions
informed by information in those documents that counsel persisted in asking despite Plaintiffs’
repeated objections. The portions of the Navy transcript that were clawed back involved testimony
in which the witness inadvertently disclosed protected attorney work product in response to
Google’s questioning.
Plaintiffs did not, as Google incorrectly asserts, “claw[] back the entirety of both”
deposition transcripts, Mot. to Compel 8-9; rather, the United States made clear that it was clawing
back only specifically-identified portions of those transcripts, and acknowledged its obligation to
provide replacement copies with the required redactions, Ex. 1, Mot. to Compel.
3
The United States provided a privilege log to these documents on August 8, 2023 and August
23, 2023, attached as Exhibits A and B, with names redacted because they are not material to the
Court’s decision.
5
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ARGUMENT
I.
All of the Documents at Issue Are Subject to Work-Product Protection.
The work-product doctrine shields from discovery “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed.
R. Civ. P. 26(b)(3)(A). All of the documents at issue here—(i) communications between the
Department of Justice and certain other federal agencies regarding the extent to which those
agencies had cognizable claims for damages to be asserted in this case; (ii) intra-agency
communications, including documents to and from agency counsel concerning the litigation; and
(iii) communications between federal agencies and their advertising agencies, conducted at the
direction of counsel and concerning specific requests for information from the Department of
Justice relating to this case—fall within the heartland of Rule 26 protection.
They are
quintessential work product representing the “preparatory work of the other side.” See Advisory
Comm. Notes on Fed. R. Civ. P. 26. Google’s attempt to compel their disclosure and seek witness
testimony on their substance and purpose is manifestly improper.
A. Inter-Agency Communications Between DOJ and Federal Agencies and Intra-Agency
Communications Within FAAs Regarding this Litigation Are Protected Work-Product.
The work-product doctrine applies when actual or anticipated litigation is “the driving
force behind the preparation of the requested documents.” In re Dominion Dental Servs. USA,
Inc. Data Breach Litig., 429 F. Supp. 3d 190, 193 (E.D. Va. 2019) (internal quotation marks and
citation omitted). Accordingly (and as Google has previously acknowledged in this case), whether
a document is protected work product hinges on the purpose for which it was created. See Dkt.
245 (Google Opp. To Pls. Motion to Compel) at 5 (work product protection applies to analysis
“undertaken because of and in response to active government investigations”). The work-product
doctrine safeguards documents “prepared because of the prospect of litigation when the preparer
6
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faces an actual claim or a potential claim following an actual event or series of events that
reasonably could result in litigation.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967
F.2d 980, 984 (4th Cir. 1992) (emphasis in original).
Pre-complaint communications between the DOJ and other federal agencies regarding the
prosecution of this action amply satisfy this standard. In the communications at issue, DOJ
attorneys sought, and federal agencies provided, information directly intended to aid the Antitrust
Division in formulating and prosecuting the damages claims in this lawsuit. See E.I. Dupont De
Nemours and Co. v. Kolon Indus., Inc., 2010 WL 11432920, at *1 (E.D. Va. Aug. 13, 2010)
(documents prepared “for the purpose of showing loss in one case and damages in another” are
“protected under the work product doctrine”). The information exchanged in these
communications included the nature and extent of purchases of digital advertising by those
agencies, which—as Google itself appears to acknowledge, see Mot. to Compel 14-15—bears
directly on the United States’ decisions as to the scope and content of the present case. Intraagency communications concerning the FAAs’ responses to the Department of Justice’s
investigational requests are no different. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d
1215, 1219 (4th Cir. 1976) (work product immunity “applies equally to lawyers and non-lawyers
alike,” as long as the relevant document was prepared “in anticipation of litigation”); United States
v. Berkeley Heartlab, Inc., 2017 WL 11673309, at *2 (D.S.C. Dec. 1, 2017) (document prepared
by government non-attorney “at the direction of counsel to provide counsel with information
needed to provide legal advice” was “protected work product”). Given that these communications
were about this case, they would not have been “created in essentially the same form in the absence
of litigation.” Dominion, 429 F. Supp. 3d at 193. Indeed, they would not have been created at all.
7
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Tellingly, Google does not suggest that these communications “would have been done in
any event.” 4 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007). Instead,
Google’s only argument as to why these communications should be disclosed is a bald assertion
that the “driving force” of these communications was merely to understand “how federal agencies
purchase digital advertising” generally, Mot. to Compel 13—i.e., without relation to the
formulation of Plaintiffs’ complaint that was already in draft form and was filed just weeks later
on the same subject, featuring damages claims on behalf of many of the same agencies included
in these communications. Google’s assertion strains credulity and would require the Court to
ignore both common sense and the United States’ privilege log, which states the purpose of the
communications. Courts evaluate the applicability of the work-product protection by reference to
“the nature of the document and the factual situation in the particular case.” Rotunda v. Zengerle,
2010 WL 11695254, at *2 (E.D. Va. Apr. 30, 2010) (citing 8 Wright & Miller, Federal Practice &
Procedure § 2024).
Here, “objective facts” relating to the substance and timing of the
communications plainly establish “an identifiable resolve to litigate prior to the . . . events and
efforts reflected in the document,” id., as well as a clear nexus between the communications and
“an actual claim or a potential claim following an actual event or series of events that reasonably
could result in litigation,” Nat’l Union, 967 F.2d at 984. 5
4
Indeed, Google concedes that the purpose of these communications was to aid the United States
in formulating the damages claims in this litigation. See Mot. to Compel 2 (describing
communications as “reach[ing] out to . . . FAAs to try to construct a damages claim”).
5
Google also appears to suggest that the work-product doctrine should not apply because many of
the agencies with whom the Department of Justice communicated “are not even parties to this
case.” Mot. to Compel 13. They do not need to be. The strategic litigation decision not to bring
claims on behalf of those agencies derives from the very same work product that would reveal
DOJ strategy and opinions in advising those agencies. In addition, Rule 26, by its plain language,
protects materials prepared “by or for another party or for another party’s representative.” Fed. R.
Civ. P. 26(b)(3) (emphasis added); see also Virginia Elec. & Power Co. v. Sun Shipbuilding &
Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975) (“In essence, if anyone prepares documents for
8
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B. Communications Between Federal Agencies and their Advertising Agencies at the
Direction of Counsel, as well as Deposition Testimony Regarding Those
Communications, Are Protected Under the Work-Product Doctrine.
The communications at issue between federal agencies and their advertising agencies are
also classic work product. In those documents, representatives of federal agencies—acting under
direction of counsel—reached out to advertising agencies with whom they worked that maintained
information on their behalf to gather information for the specific purpose of formulating this
litigation. Courts in this Circuit have plainly and consistently held that such communications “fall
squarely within the work product doctrine.” Peters v. Aetna Inc., 2018 WL 3616923, at *11
(W.D.N.C. July 27, 2018); see also, e.g., Allen, 106 F.3d at 608 (“information [attorney] gained
from [third party]” was protected opinion work product because it “tend[ed] to indicate the focus
of her investigation, and hence, her theories and opinions regarding this litigation”); Front Royal
Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 258-59 (W.D. Va. 1999) (statements by a third
party “taken by an independent investigator at the direction of counsel” were protected under the
work-product doctrine); Temporary Servs., Inc. v. AIG, Inc., 2012 WL 13005977, at *2 (D.S.C.
Jan. 18, 2012) (“Defendants argue that because Nowak and Gaillard were directed by AIG’s
counsel to investigate and report about facts relating to the premium report, the results of these
investigations are protected by the work product doctrine. The court agrees that the results of the
investigations performed by Nowak and Gaillard at the direction of counsel are protected under
the work product doctrine.”).
a party in anticipation or for trial, documents so prepared are not discoverable . . . .”) (emphasis
added). The case cited by Google on this point, Spilker v. Medtronic, Inc., 2015 WL 12851391,
at *2-3 (E.D.N.C. Jan. 6, 2005), speaks only to whether non-parties may invoke Rule 26(b)(3)—
an entirely inapposite proposition given that the party invoking the privilege here is the United
States.
9
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Google declines to even acknowledge this blackletter principle in its motion, instead
hinging its position on an irrelevant contention that “[t]he advertising agencies are independent
third-parties that do not work at the direction of ATR.” Mot. to Compel 11. That misleading
framing obfuscates two key points—first, that the federal agencies who communicated with the
advertising agencies were representatives of the United States, acting under direction of counsel
to gather information relevant to the United States’ specific or potential claims on behalf of the
federal agencies relating to the work the advertising agencies were contracted to perform; and
second, that Rule 26 expressly provides that the work product doctrine applies to material prepared
“for any party or its representative,” Fed. R. Civ. P. 26(b)(3) (emphasis added), i.e., including
material produced by advertising agencies for a federal agency, in response to a request for
information issued at the direction of counsel.
The cases Google cites—all of which involve discovery material lacking the crucial
element of having been developed for a party’s representative at the specific request of counsel—
come nowhere close to rebutting the applicability of work-product protection on these facts. 6 For
example, Google points to In re Grand Jury Proceedings, 102 F.3d 748, 752 (4th Cir. 1996), an
inapposite case in which a report prepared by a bank’s consultant—prepared without any
attorney’s involvement or request—was disclosed in discovery. Echavarria v. Roach, 2019 WL
6893034, at *3 (D. Mass. Dec. 17, 2019), likewise permitted the disclosure of documents that had
been prepared by a third party without any attorney involvement or request. See also Goff v. U.S.
Rentals (N. Am.), Inc., 2017 WL 1179158, at *2-3 (E.D. Va. Mar. 28, 2017) (same); Addi v.
Corvias Mgmt.-Army, LLC, 339 F.R.D. 594, 598 (D. Md. 2021) (same). Burwell v. Peyton, 2014
6
Indeed, some concede precisely the United States’ point. See Mot. to Compel at 12 (citing In re
Lumber Liquidator, 2015 WL 9474286, at *2 (E.D. Va. Dec. 28, 2015) (communications with
client’s agents that “related to legal rather than business matters” are privileged)).
10
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WL 12717390, at *3 (D. Vt. Apr. 17, 2014), is even further afield—there, the court permitted
disclosure of a therapist’s notes regarding a conversation that happened to include a discussion of
ongoing litigation. Id. The only proposition that these cases support is Google’s right to seek
ordinary-course discovery from the individuals on these communications regarding the underlying
facts of how they conduct their business, including the business relationship between federal
agencies and advertising agencies. But none of these cases in any way supports Google’s brazen
suggestion that a communication made for the purpose of responding to a request for information
directed by counsel must be disclosed notwithstanding the work-product doctrine.
Google also appears to contend that the DOJ has waived work-product protection by
communicating, through the federal agencies, with advertising agencies that are “no different than
any other third parties,” such as “The Trade Desk, or Microsoft, or Meta.” Mot. to Compel 12
(citing Johnson v. Baltimore Police Dep’t, 2021 WL 1985014 (D. Md. May 18, 2018), and SEC v.
Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012), two waiver cases). That premise is equally wrong.
The advertising agencies here are not unrelated third parties simply because they are not the federal
agencies’ legal consultants; they work directly with the federal agencies on the subject of this
litigation and maintain information regarding the federal agencies’ purchases necessary to the
evaluation of those purchases by counsel. As Google’s own cited case explains, “[d]isclosure to a
person with an interest common to that of the attorney or the client generally will not result in
waiver,” which includes communications between a plaintiff’s “collaborators” (as distinguished
from a plaintiff’s “agent”). Johnson, 2021 WL 1985014, at *2-3; see also In re Doe, 662 F.2d
1073, 1081 (4th Cir. 1981) (“actions effectuating the forfeiture or waiver must be consistent with
a conscious disregard of the advantage that is otherwise protected by the work product rule”);
Maxtena, Inc. v. Marks, 2014 WL 4384551, at *23 (D. Md. Sept. 2, 2014) (“mere disclosure to a
11
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third party” is not tantamount to waiver); In re Smith & Nephew, 2019 WL 2330863, at *4-5 (D.
Md. May 31, 2019) (no waiver by sharing documents with consultant because “[t]here was no
indication that [the consultant’s] interests departed from Smith & Nephew’s”).
C. Google Cannot Establish a Substantial Need and Undue Hardship to Overcome the WorkProduct Doctrine.
Unable to contest the applicability of the work-product doctrine to these categories of
communications, Google turns to insisting that these documents “reflect purely factual
information,” and that it has a “substantial need” to obtain these documents which cannot be
obtained “by alternate means without undue hardship.” Mot. to Compel 14. To compel disclosure
of these communications, Google bears the burden of satisfying both of these requirements. See
In re Grand Jury, 102 F.3d at 750; see also Sanford v. Virginia, 2009 WL 2947377, at *2 (E.D.
Va. Sept. 14, 2009). It has satisfied neither.
First, contrary to Google’s characterizations, the communications at issue reflect opinion
work product that is “absolutely protected from discovery.” Sanford, 2009 WL 2947377, at *2.
Opinion work product reflects the “mental impressions, conclusions, opinions, and legal theories
concerning the litigation,” id., and courts “carefully guard opinion work product from disclosure
to an opposing party, fearing that otherwise ‘[a]n attorney’s thoughts, heretofore inviolate, would
not be his own,’” Allen, 106 F.3d at 607 (citing Hickman v. Taylor, 329 U.S. 495, 511 (1947)).
Allen made clear the bedrock principle that a document which tends to “indicate the focus of [an
attorney’s] investigation, and hence, her theories and opinions regarding this litigation,” represents
opinion work product “absolutely immune from discovery.” 106 F.3d at 608. Crucially, that
principle extends to documents that reveal an attorney’s selection of underlying facts or issues—
even if the underlying facts are themselves discoverable—because the “selection and compilation
12
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of particular documents reveals [an] attorney’s thought processes and theories regarding this
litigation.” Id.; see also, e.g., Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986)
(attorney’s “selective review” of certain underlying facts “was based on her professional judgment
of the issues and defenses involved in this case”).
In its motion, Google repeatedly asserts that the communications involve requests for
“factual” information. Mot. to Compel 14, 20, 21. But that conflates the issues at play: Google’s
motion to compel does not seek only that factual information; it seeks disclosure of the
communications themselves, which necessarily reflect the government’s thinking as to the
litigation, in plain contravention of Allen and its progeny. Google’s last-minute suggestion that
these documents may be redacted to exclude “protected information (attorney impressions, for
example),” Mot. to Compel 17, does not save its motion. 7 The communications at issue—internal
discussions regarding the government’s damages on the one hand, and requests for information
relevant to a specific element of the government’s liability claim on the other—plainly reflect
requests for “specific documents tending to prove a specific legal theory,” GMS Indus. Supply,
Inc. v. G&S Supply, Inc., 2021 WL 2492473, at *4 (E.D. Va. May 5, 2021), which cannot be
redacted without rendering the documents meaningless.
Second, regardless of whether the communications are fact or opinion work product,
Google has failed to show a “substantial need” for these communications, and has likewise failed
to show that their “substantial equivalent” cannot be obtained without undue hardship. In sum,
Google’s argument boils down to an assertion that it should be able to obtain these documents
because the “commercial realities of how industry participants define the market for available
7
Google’s questioning at depositions regarding the purpose for which FAAs gathered particular
information belies this contention.
13
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advertising” are relevant to its argument on market definition. Mot. to Compel 14-15. Yet this
argument has anything to do with the government’s inter-agency communications regarding the
United States’ damages claims; Google’s proffered justifications concern only federal agencies’
communications with their advertising agencies.
Even as to the federal agencies’ communications with their advertising agencies, Google
offers no real explanation—other than its strategic interest in not having to use its “ten party
depositions, and twenty non-party depositions,” id. at 16—for why it cannot simply depose
purchasers of digital advertising, including these very ad agencies, as to their views on the market.
Indeed, Google has already arranged to take the depositions of ad agencies on this very question.
Under these circumstances, courts, in their discretion, have consistently rejected movants’ tactical
decisions not to take certain discovery in the hopes of obtaining it through protected work product.
See Sanford, 2009 WL 2947377, at *2 (work-product doctrine “forbids” disclosure where “a party
does not make any showing that other witnesses were unknown to it or unavailable to testify”)
(citing In re Grand Jury Subpoena, 622 F.2d 933, 935 (6th Cir. 1980)); Arugu v. City of Plantation,
2010 WL 11515702, at *9 (S.D. Fla. Oct. 26, 2010).
Recognizing that its position would improperly reduce the “substantial need” inquiry “to a
simple question of relevance,” Sanford, 2009 WL 2947377, at *3, Google attempts to reframe the
protected communications as being uniquely “contemporaneous,” citing two cases dealing with
eyewitness accounts of automobile accidents and accidental fires, see Mot. to Compel 15. But
those cases have no relevance here, where the issue on which Google claims substantial need
(advertising purchasers’ views on the market) is amply documented, rather than consigned to a
witness’s memory compromised by the “passage of time.” See Coogan v. Cornet Transp. Co.,
Inc., 199 F.R.D. 166, 167 (D. Md. 2001). Google’s twin assertion that any potential witness would
14
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later give compromised, undetailed testimony tainted by “attorney-education,” Mot. to Compel
15-16, fares no better. Nothing in the record suggests, much less substantiates, Google’s rank
speculation that a witness would give incomplete or false testimony under oath on these questions. 8
At bottom, Google has failed to make the showing necessary to obtain otherwise protected
documents.
II.
The Inter- and Intra-Agency Communications at Issue Are Subject to the
Attorney-Client Privilege.
A. The Inter-Agency
Communications.
Communications
at
Issue
Are
Privileged
Attorney-Client
In addition to being protected work product, the inter-agency communications at issue are
also protected by attorney-client privilege. That set of documents is composed entirely of
communications between the DOJ and federal agencies for the purpose of aiding DOJ attorneys in
forming and providing legal advice as to whether those same federal agencies were injured by
Google’s conduct, and therefore whether the United States has cognizable claims for damages
under Section 4A of the Clayton Act.
Accordingly, these documents represent privileged
communications between an attorney (the DOJ attorneys working on this case) and its client (the
federal agencies), for the purpose of furnishing legal advice (the damages claims asserted in this
lawsuit). See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (asserting privilege
requires both attorney-client relationship and request or provision of legal advice); see also In re
8
Google’s citation to United States v. Booz Allen Hamilton, Inc., 2022 WL 3921019, at *2-3 (D.
Md. Aug. 31, 2022), is also inapposite. That case, as Google acknowledges, dealt with a situation
where a deposition could not substitute for protected work product because the deposition’s
usefulness “may be limited . . . without the requested documents.” Id. at *4. There, the protected
documents themselves (“an employee’s detailed timeline”) would have served as key exhibits to
the witness’s testimony during a deposition. Id. Here, there is no reason why the federal agencies’
requests for certain information would be a necessary referent for advertising agencies’ testimony
regarding the underlying facts requested.
15
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Grand Jury Investigation, 399 F.3d 527, 535 (2d Cir. 2005) (“The government attorney requires
candid, unvarnished communication from those employed by the office he serves so that he may
better discharge his duty to that office.”).
Attorney-Client Relationship. Just as the purpose of a general counsel’s office is to handle
litigation on behalf of a company, the DOJ is statutorily charged with acting as the attorney of the
United States and its agencies. See 28 U.S.C. § 516 (“[T]he conduct of litigation in which the
United States, an agency, or officer thereof is a party, or is interested, and securing evidence
therefor, is reserved to officers of the Department of Justice, acting under the direction of the
Attorney General.”). 9 By statute, the DOJ is specifically and exclusively authorized— indeed,
required—to enforce the antitrust laws, including through damages claims on behalf of the United
States when it is injured in its business or property. 15 U.S.C. § 4; 15 U.S.C. § 15a.
The thrust of Google’s argument is that this Court should treat the Department of Justice’s
communications with its agency clients as identical to “the discoverable intake that a plaintiff does
on potential clients or claims before any attorney-client relationship is formed.” Mot. to Compel
1-2; see also id. at 18 (characterizing communications as being similar to “letters to potential
plaintiffs or class representatives”). That extraordinary assertion is both factually and legally
meritless. Courts have overwhelmingly held that “an attorney-client relationship exists between
[federal agencies] and the [Department of Justice] in connection with anticipated litigation.” Town
of Norfolk v. U.S. Army Corps of Engr’s, 968 F.2d 1438, 1457-58 (1st Cir. 1992); see also, e.g.,
Hall & Assocs. v. EPA, 633 F. Supp. 3d 35, 53 (D.D.C. 2022) (“[T]he agency is typically the
‘client’ and the agency’s lawyers (or lawyers at the Department of Justice) are typically the
9
See also 28 U.S.C. § 519 (prohibiting any “Executive department or military department” from
“employ[ing] an attorney or counsel for the conduct of litigation,” and requiring such agency to
instead “refer the matter to the Department of Justice”).
16
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‘attorneys’ for purposes of the attorney-client privilege.”); United States v. Acquest Transit LLC,
319 F.R.D. 83, 99 (W.D.N.Y. 2017) (disclosure improper “because attorney-client relationship
exists between the Department of Justice and the agencies”); N.Y. Times Co. v. U.S. Dep’t of
Justice, 282 F. Supp. 3d 234, 239-40 (D.D.C. 2017) (distinguishing the attorney-client relationship
between NSA and DOJ from other relationships involving a “true third party”); LSB Indus., Inc.
v. C.I.R., 556 F. Supp. 40, 42 (W.D. Ok. 1982) (“The privilege applies where the client is a
corporation and the attorney is in-house counsel, or whether the client is the United States and its
administrators and the attorney is either in the agency or in the Department of Justice.”). The law
speaks directly to the communications at issue, where the DOJ was advising the United States and
its agencies—for which it was already an attorney charged by statute with identifying and
pursuing antitrust damages claims on behalf of—regarding the availability and propriety of
bringing damages claims in imminently-anticipated litigation.
Google cites no support to the contrary. Indeed, the single case it identifies that so much
as mentions a claim for attorney-client privilege between the Department of Justice and its agency
clients is Stonehill v. U.S. Department of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C.
Feb. 10, 2022), where the attorney-client privilege was denied solely for its claimant’s “lack of
detail” in describing why it applied. There, the court considered a document identified as “one email between DOJ-Tax attorney and an Internal Revenue Service employee,” and found that
without any further information about the “subject matter of the email,” it could not conclude that
the “communication was confidential or even legal in nature.” Id. Here, by contrast, the
government has specifically identified the legal context of the communications in its privilege log,
17
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see Mot. to Compel 5, clearly denoting that the communications dealt with the DOJ’s agency
clients in the context of developing a damages claim under Section 4A of the Clayton Act. 10
Legal Advice. In addition, the communications at issue—including both the DOJ’s
requests for information necessary to evaluate damages claims brought on behalf of certain federal
agencies and those federal agencies’ responses to these requests—were made for the purpose of
securing legal advice. The key question in the Fourth Circuit in determining whether investigative
communications are protected under the attorney-client privilege is “whether this investigation
was related to the rendition of legal services.” Allen, 106 F.3d at 603. As recounted in detail
above, communications intended to develop the United States’s damages claims amply satisfy this
criterion. See Boundy, 2023 WL 2567350, at *9 (emails in which government attorneys “seek
information to assist them” in evaluating “the subject of [the] litigation . . . fall squarely within the
attorney-client privilege”).
Google does not dispute that these communications were made for the sole purpose of
developing the damages claims brought in this lawsuit.
See Mot. to Compel 2 (relevant
correspondence was made to “construct a damages claim”). Instead, it entreats this Court to find
that communications “requesting factual information” are categorically excluded from the
attorney-client privilege. Mot. to Compel 20 (emphasis in original). The lack of any citation for
this assertion is telling—the law holds the precise opposite. See Allen, 106 F.3d at 603 (in the
Fourth Circuit, “fact finding which pertains to legal advice counts as professional legal services”);
10
To the extent that Google suggests that there is a difference between the federal agencies on
whose behalf the United States asserted claims in the complaint and the federal agencies on whose
behalf damages claims ultimately were not asserted, such a distinction does not alter the existence
of an attorney-client relationship. The attorney-client privilege applies to communications even
with potential clients. See Stradtman v. Republic Servs., Inc., 2015 WL 2451850, at *2 (E.D. Va.
May 21, 2015).
18
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In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir. 1979) (factual investigation by law firm
for the purpose of providing legal advice based on that investigation “trigger[s] the attorney-client
privilege”); FTC v. Boehringer Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 30 (D.D.C. 2016)
(“For the attorney-client privilege . . . facts collected at counsel’s request for later use in providing
legal advice are protected.”).
Google’s cherry-picked quotations from two depositions, see Mot. to Compel 19-20,
cannot rescue its argument. In portions of those depositions that Google declines to highlight, both
deponents make clear that they had been asked to provide information relevant to the DOJ’s claims,
and that they could not testify further as to the nature of those requests because they contained
privileged information. 11 Considering these deposition excerpts in their proper context, Google
has shown nothing other than the fact that certain agency employees had not themselves reached
out to the Antitrust Division to initiate a claim, and did not ordinarily interact with the Antitrust
Division in the scope of their ordinary duties. That is neither surprising nor relevant. None of this
changes the fact that the communications at issue involved requests coming from the Department
of Justice—the counsel of the United States—in aid of a specific legal investigation. That is all
the law requires. See Upjohn, 449 U.S. at 394 (requests that identify the requesting party as an
attorney and which explain the applicability of requested facts to an existing legal investigation
protected under attorney-client privilege).
11
See Ex. 14, Mot. to Compel at 57:10-58:4 (“Q. And do you know why Department of Commerce
was asking about Google ads and digital advertising for the 2020 -- 2020 census in January of
2023? . . . If you can answer that question without relying on privileged communications -- on
communications between yourself and lawyers for the Department of Commerce, that’s what I am
asking for in your answer. A. I can’t answer. Q. Is that because you only have an understanding
based on privileged communications? A. Yes.”); Ex. 15, Mot. to Compel at 3 (“Q. To what extent
has anybody at the Department of Justice ever asked you to provide information about the Army’s
advertising business? MR. MCBIRNEY: Objection. Privileged. Instruct the witness not to
answer. Q. Are you going to follow that instruction, sir? A. Yes.”).
19
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B. The Intra-Agency Communications at Issue Are Subject to the Attorney-Client Privilege.
The intra-agency communications here—i.e., communications between the FAAs’ internal
counsel and employees of those FAAs containing legal advice or requests for legal advice, as well
as work product prepared at the request of the Antitrust Division to assess claims in this litigation—
are privileged for much of the same reasons discussed in Section II.A, supra. Google does not
dispute that, for the subset of these documents representing discussions between agency counsel
and agency employees, those communications are definitional attorney-client communications.
See Rein, 553 F.3d at 376 (“An agency can be a client and agency lawyers can function as attorneys
within the relationship contemplated by the privilege.”) (internal quotation marks omitted); Mead
Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977) (the
attorney-client privilege extends to “communications between attorneys and all . . . employees of
the organization who are authorized to speak for the organization in relation to the subject matter
of the communication). And even for those communications between non-lawyers within the
agencies responding to the Department of Justice’s requests for information, the attorney-client
privilege attaches because they were “transmitted . . . to relay information requested by attorneys.”
Santrade, Ltd. v. Gen. Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993); see also Upjohn Co. v.
United States, 449 U.S. 383, 390 (1981) (privilege extends to communications between nonlawyers relating to the “giving of information to the lawyer to enable him to give sound and
informed advice”).
III.
Inter-Agency Communications Between the DOJ and Federal Agencies for the
Purpose of Formulating Its Legal Strategy in this Lawsuit Are Subject to the
Deliberative-Process Privilege.
The documents reflected on Plaintiffs’ June 26 privilege log are likewise exempt from
disclosure under the deliberative-process privilege. The privilege protects interagency documents
20
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that are both “predecisional” and “deliberative.”
City of Virginia Beach v. U.S. Dep’t of
Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993). Google makes no attempt to contest that the
communications at issue are “predecisional,” as they were indisputably conducted prior to an
agency’s decision: the content of the complaint filed in this case. See Mot. to Compel 21-23; see
also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991) (deliberative-process
exemption applies to an agency’s thinking regarding the filing of a civil enforcement action).
Thus, the only contested issue is whether the communications are also “deliberative.” The relevant
documents satisfy this standard.
A document is “deliberative” if it was “prepared to help the agency formulate its position.”
U.S. Fish & Wildlife Serv. v. Sierra Club, Ind., 141 S. Ct. 777, 786 (2021). Yet again, Google
attempts to circumvent the fact that these communications were prepared to help the Department
of Justice “formulate its position” in the operative complaint by characterizing those documents
as predominantly factual in nature, rather than reflective of deliberation relating to the agency’s
opinions. Mot. to Compel 22. But one of the cases that Google itself cites, Playboy Enters., Inc.
v. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982), explains exactly why that position is
untenable. There, the D.C. Circuit, discussing its prior decision in Montrose Chemical Corp. v.
Train, 491 F.2d 63, 68 (D.C. Cir. 1974), explained that the “factual versus deliberative distinction”
was “inadequate to resolve the difficult question” of whether the gathering of facts should be
exempt from disclosure under the deliberative-process privilege. The court explained that whereas
the communication of factual material was not protected where it was “prepared only to inform
the Attorney General of facts which he in turn would make available to members of Congress,”
the communication of factual material was protected where it was “prepared for the sole purpose
of assisting the [requesting agency] to make a complex decision” in a legal proceeding. Playboy
21
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Enters., 677 F.2d at 936; see also Rein, 553 F.3d at 371 n.26 (factual material is subject to
deliberative-process privilege if it would “indirectly reveal the advice, opinions, and evaluations
circulated within the agency as part of its decision-making process”). 12
By the standard set forth in Google’s own cited precedent, the deliberative-process inquiry
hinges on whether the factual material communicated was the predicate for a later decision, such
that its disclosure would “permit[] inquiry into the mental processes of the [agency] by revealing
what materials [it] considered significant in reaching a proper decision,” Playboy Enters., 677 F.2d
at 936, rather than “lend[ing] no more than inferences that are essentially similar to the findings
which preceded it,” Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Baltimore, 508 F.2d 945,
948 (4th Cir. 1974). The communications at issue fall cleanly in the former category. It is not
merely the facts themselves, but Plaintiffs’ undisputed purpose in gathering them (incorporation
into a broader, discretionary agency decision as to how to formulate its antitrust claims), reflected
in their contents and context, that renders the deliberative-process privilege applicable here.
Thus, the deliberative-process privilege shields from disclosure the Department of Justice’s
communications with other federal agencies regarding the nature and extent of their damages
claims. And although Google contends that the Court should nevertheless order their disclosure
because of its substantial need to probe their relevance to the “market definition” inquiry in this
12
Google also describes Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1250 (4th Cir. 1994), in an
explanatory parenthetical, as holding that the “deliberative process privilege does not protect the
exchange of facts and information in the course of an investigation.” Mot. to Compel at 22
(emphasis in original). The suggestion that Ethyl Corp. stated such a categorical rule is misleading.
Ethyl Corp. held that a Vaughn index (the equivalent of a privilege log in the FOIA context) that
“fail[ed] to identify either the author or its recipient” for a certain tranche of documents could not
support a deliberative-process claim for documents whose authors’ “relationships to the
decisionmaking process cannot be identified.” 25 F.3d at 1250. Unlike in Ethyl Corp., where
“little information [was] provided . . . for testing the [government]’s deliberative process privilege
claims,” those key facts are plainly present in the United States’s June 26 privilege log.
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case, the Court should reject its bid for the same reason as discussed supra in Section I.C. See
§ I.C (no showing of substantial need nor inability to obtain substantial equivalent). There is no
reasonable means of producing redacted versions of these documents to limit them to their factual
content; in this context, the facts provided illuminate the government’s thinking behind the
questions asked, and reveal the factual predicates found appropriate (or not appropriate) for
inclusion in this lawsuit. If Google believes that agency employees’ underlying views—divorced
from the deliberative process—are crucial to its market definition argument, it has every
opportunity to explore those views in the standard course of discovery.
IV.
Neither In Camera Review Nor Modification of Section V.8.e of the ESI Order Is
Warranted.
Through its detailed privilege logs and correspondence, Plaintiffs have satisfied their initial
burden of establishing the applicability of the work-product doctrine, the attorney-client privilege,
and the deliberative-process privilege to the various categories of documents and testimony at
issue here. See Jones, 696 F.2d at 1072. Requesting in camera review does not obviate a movant’s
responsibility to sustain a legally and factually tenable position on why certain protected
documents should be disclosed; instead, the moving party must make a “showing of a factual basis
adequate to support a good faith belief by a reasonable person that an exception to the privilege
may apply.” In re Zetia (Ezetimibe) Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16,
2019); see also Glaxo, Inc. v. Novopharm Ltd., 148 F.R.D. 535, 540 n.3 (E.D.N.C. 1993) (“If this
court were to review each and every document withheld as privileged in litigation . . . for no reason
other than counsel’s distrust of his adversary, this courthouse could hardly function.”).
Google’s request that the Court review in camera the documents at issue, as well as the
entirety of two deposition transcripts, fails at the threshold. The only facts it can point to in support
of in camera review are the “[e]xhibits and testimony of FAA witnesses,” Mot. to Compel 24, but
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for the reasons discussed supra, none of those proffered “facts”—even taken as presented—
undermine any of the key reasons why the various privileges apply here. They do not, for instance,
suggest that litigation was merely a theoretical possibility (rather than the driving force behind
these communications), nor does anything in Google’s brief contradict that the purpose of those
communications was to inform the legal advice or decision-making of the United States. In camera
review is not appropriate in these circumstances.
This Court should likewise decline Google’s invitation to modify Section V.8.e of the ESI
Order, which excludes from the parties’ privilege log obligations any “[d]ocuments or
communications sent solely between counsel for the United States (or persons employed by the
United States Department of Justice) and counsel for any Federal Agency Advertiser.” Dkt. 142
§ V.8.e. Although the ESI Order provides for modification upon “good cause” shown, id. at n.5,
Google has not made any such showing. For the reasons discussed above, neither the June 26
privilege log nor the “testimony adduced in FAA depositions” imply any attempt to conceal
“improper privilege assertions.” Mot. to Compel 25. Those assertions are amply supported in fact
and in law, leaving no “good cause” to modify the ESI Order, to which Google agreed and the
Court ordered.
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court deny in
full Google’s Motion to Compel Documents and Testimony Withheld as Privileged (Dkt. 305),
and Google’s Motion for In Camera Review (Dkt. 301).
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Dated: August 23, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@usdoj.gov
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Aaron Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-0077
Fax: (202) 616-8544
Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
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