REPLY to Response to Motion re [311] MOTION for Protective Order re Rule 30(b)(6) Deposition filed by Google LLC. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Reilly, Craig)
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR A PROTECTIVE ORDER REGARDING
PLAINTIFFS’ RULE 30(B)(6) DEPOSITION NOTICE
As the Court recently explained, Rule 30(b)(6) deposition “topics must describe with
reasonable particularity the matters of examination and they must take into account the discovery
that has been undertaken and issues of proportionality.” Order at 2, ECF No. 326. Plaintiffs’
Notice of Deposition to Google fails to clear that bar. Some parts of their Notice rehash topics
that have already been explored exhaustively through other discovery methods. Others seek
information that even Plaintiffs now concede should more properly be provided in writing than via
testimony. And still others—such as topics vaguely referencing any “data” that Google uses,
collects, shares, or accesses—fail to describe issues with sufficient particularity for a technology
company like Google to prepare a witness to testify.
Rather than confront the deficiencies in their Notice, Plaintiffs attempt to paint Google’s
motion as a premature “race to the courthouse,” when the history of the parties’ negotiations shows
that Plaintiffs repeatedly rebuffed Google’s attempts to engage in productive negotiations. Despite
their claim that they had “indicated a willingness to substantially narrow the scope of their Rule Page 2 PageID#
30(b)(6) notice,” Pls.’ Resp. to Google’s Mot. for a Protective Order (“Opp.”) at 1, ECF No. 327,
Plaintiffs declined multiple requests from Google for a written proposal so that the parties could
actually engage in productive negotiations. Instead, Plaintiffs chose to negotiate through court
filings, using their response brief to make their first proposal touching all Topics in their Notice.
Google replies here to correct the record and to help further narrow the issues before the Court.
BACKGROUND
I.
The Notice and Early Meet and Confers
On Wednesday, August 9, Plaintiffs served Google with a Notice of Deposition pursuant
to Federal Rule of Civil Procedure 30(b)(6) (the “Notice”) that identified 30 topics, which included
approximately 170 sub-topics. Ex. A to Mot., ECF No. 312-1. Plaintiffs noticed the deposition
for Wednesday, August 30, leaving Google with only three weeks to prepare numerous corporate
designees on a mountain of issues.
Google served formal written objections to the Notice on Monday, August 14. See Ex. A.
Those objections identified in detail and with precision the many ways that the Notice was vague,
ambiguous, overbroad, unduly burdensome, and disproportionate to the needs of the case. The
objections also offered to meet and confer with Plaintiffs in an attempt to narrow areas of dispute.
Google reiterated its objections and asked for Plaintiffs to propose ways to narrow the Notice in
three meet-and-confer sessions held on August 16 and 17.
II.
Proposals for a “Standstill” Agreement
During the meet-and-confer sessions, Google made clear that, if the parties did not reach
agreement quickly, Google would—consistent with the Rule 16(b) Scheduling Order for this
case—be forced to file a motion for a protective order on Friday, August 18, so that the motion
could be heard on August 25, the last Friday before the noticed date of the deposition. See Rule Page 3 PageID#
16(b) Scheduling Order, ECF No. 94 ¶ 18(e). Rather than propose ways to narrow the Notice, at
6:11 pm on August 17, Plaintiffs proposed a one-sided “standstill” agreement that would prevent
only Google from moving for a protective order until August 25. Ex. B at 9. At 9:49 pm, Google
responded with a counter-proposal that would have prevented both sides from seeking protective
orders until August 25, allowing negotiations to continue without disadvantaging either side. Id.
at 7-8.
On August 18, the parties met-and-conferred about the standstill agreement. During that
meeting, Plaintiffs’ gambit became clear: rather than actually negotiating to narrow the scope of
the parties’ 30(b)(6) notices, Plaintiffs wanted one-sided relief. Plaintiffs revealed that they would
not accept Google’s counter-proposal of a mutual standstill agreement because they intended to
file, later that day, a motion for judgment on the pleadings and, in the alternative, a protective order
that would preclude Google from obtaining discovery into topics that Plaintiffs are eager not to
have explored. The meet-and-confer was the first time that Plaintiffs indicated they would move
for judgment on the pleadings and a protective order, while they simultaneously sought to delay
Google's motion for a protective order.
Google responded to the sudden news by requesting that Plaintiffs describe in writing how
they would propose for their motion for judgment on the pleadings to affect timing of the parties’
negotiations over the Notice. At 1:41 pm, Plaintiffs proposed that Google should not file any
motion for a protective order before August 25, while Plaintiffs would move for a protective order
of their own. Ex. B at 6-7. Google rejected Plaintiffs’ self-serving proposal at 4:16 pm, informed
them that it was preparing to move for a protective order, and once again urged Plaintiffs to accept
the reciprocal standstill agreement that it had proposed the night before—one which would have
simply removed the time pressure of motion practice related to the discovery deadlines and Page 4 PageID#
allowed the parties to continue negotiations. Id. at 5. Plaintiffs did not accept that offer.
Accordingly, Google had to file its motion for a protective order. ECF No. 311. Plaintiffs filed
their motion for judgment on the pleadings or, in the alternative, a protective order, later that
evening. ECF No. 317.
Unlike Plaintiffs’ selective recitation of these events, the parties’ correspondence shows
that Google did not reject a “mutual standstill” (as Plaintiffs now claim, see Pls.’ Mem. in Supp.
of Mot. for Protective Order at 6, ECF No. 322); Google was always willing to defer filing a
motion for a protective order, as long as Plaintiffs would do the same. See Ex. B at 8. Even when
Plaintiffs sprung on Google their plan to seek judgment on the pleadings mere hours before filing
the motion—and only when Google’s proposed reciprocal standstill forced them to disclose their
plans—Google held out an option for the parties to agree to defer their filing of motions for
protective orders. It remains unclear why that was unacceptable to Plaintiffs, as Google’s offer
would not have delayed them from seeking judgment on the pleadings.1 And it is ironic indeed
for Plaintiffs now to accuse Google of making a “premature” motion for a protective order, see
Opp. at 1, when they rejected Google’s offer that both sides delay filing such motions, and when
Google waited until the last possible day to seek a protective order that could take effect before a
deposition noticed for August 30.
Google’s offer would have prevented Plaintiffs from seeking a protective order on August 18 “in
the alternative” to their motion for judgment on the pleadings, cf. Pls.’ Mem. of L. in Supp. of Mot.
for Part. J. on the Pleadings, ECF No. 318 at 23-27, but Plaintiffs still could have moved for
judgment on the pleadings on August 18 and later moved for a protective order. The contrary
claim in their motion to continue Google’s motion for a protective order is false. See Pls.’ Mot. to
Continue Hr’g, ECF No. 324 ¶ 2 (“Google informed Plaintiffs . . . that it was not agreeable to a
standstill as long as Plaintiffs were planning to proceed with filing their motion for partial
judgment on the pleadings or a protective order.”). Page 5 PageID#
III.
The Continuance
On Monday, August 21, Plaintiffs informed Google that they intended to file their own
additional motion for a protective order and separately to move to continue the hearing on Google’s
motion for a protective order from August 25 to September 1. Ex. B at 3-4. On Tuesday, August
22 at 12:14 pm, Google reported that it was not inclined to continue the hearing because a
continuance would prevent it from gaining timely clarity about the scope of its obligations to
prepare witnesses for 30(b)(6) testimony, id. at 2-3, given fact discovery closes on September 8.
On a separate phone call on August 22, Google resumed the meet-and-confer process by
proposing ways that Plaintiffs could narrow the Notice. To better inform the negotiations and to
confirm the parties’ respective positions, Google requested that Plaintiffs provide a written
proposal, which they had yet to do. Soon after that conversation, at 12:41 pm, Plaintiffs stated that
they would consider Google’s suggestions, but also pressed Google to confirm its position on the
motion to continue by 2:30 pm. Ex. B at 1-2. At 1:44 pm on August 22, Google confirmed that it
would oppose a motion to continue if it were to be filed that afternoon, while holding out the
possibility that it would agree to a continuance if Plaintiffs responded to “the ideas for narrowing
Plaintiffs’ 30(b)(6) notice that we discussed earlier today.” Id. at 1. Plaintiffs proceeded to file
their motion and offered no suggestions for narrowing their 30(b)(6) notice. Pls.’ Mot. to Continue
Hr’g, ECF No. 324.
IV.
The Briefing Schedule
After the motion was granted on August 22, see Order, ECF No. 326, the parties discussed
the briefing schedule in light of the hearing moving from August 25 to September 1. Plaintiffs
indicated that, despite the new date, they intended to file their response to Google’s motion for a
protective order on August 23 (the original, pre-continuance deadline). Plaintiffs also proposed Page 6 PageID#
that the parties agree to ask the Court to adjust the briefing schedules not only for Google’s motion
(so that the deadline for Plaintiffs’ response would be deferred until noon on August 28 and
Google’s reply would be due at 9 pm on August 30), but also for Plaintiffs’ motion (so that the
deadline for Google’s response would be accelerated to August 28).
Google rejected the idea that Plaintiffs should have more time for their response, while
Google should have less for its response. Ex. C at 3-5. Google also reiterated its request that
Plaintiffs “make a comprehensive written proposal describing what information from their
30(b)(6) notice they actually need from Google, ‘tak[ing] into account the discovery that has been
undertaken to date and issues of proportionality,’ as well as the requirement that topics be
described with reasonable particularity,” consistent with the Court’s guidance. Id. at 4 (quoting
Order at 2, ECF No. 326). If Plaintiffs agreed to make that written proposal by noon on August
23, Google committed to “join in a motion to extend the deadlines” related to Google’s motion for
a protective order. Id. And Google did not stop there. In a further showing of good faith, Google
made its own significant, unilateral accommodations to address concerns that the United States
had raised with respect to Google’s 30(b)(6) notice to the United States. Id. at 4-5.
At 1:15 pm on August 23, Plaintiffs again declined to provide a proposal to narrow the
Notice because doing so would “not provide plaintiffs with any meaningful benefit” after they
were close to completing their “multi-day process” of drafting a response to Google’s motion. Ex.
C at 2-3 (emphasis added). Despite Plaintiffs’ continued refusal to propose any narrowing of the
Notice, with the parties stating that they intended to negotiate, Google “anticipate[d] that the Court
will find it more helpful to review briefs that address the parties’ positions closer in time to next
Friday’s hearing (rather than briefs that reflect positions taken before Plaintiffs have made a
substantive proposal)” and accordingly offered to join a motion to extend the time for Plaintiffs to Page 7 PageID#
respond to Google’s motion for a protective order. Id. at 1-2 (emphasis added). Plaintiffs again
declined to delay their filing. Id. at 1.
In light of their repeated insistence on filing briefs and their delay in offering a written
proposal to narrow their Notice, Plaintiffs’ complaints about Google’s “premature” motion ring
hollow. See Opp. at 1. That is all the more so when the table in their brief (see Opp. at 3-5)—the
product of a “multi-day” drafting process—is just the type of written proposal that Google asked
them to make and that easily could have been the basis for a negotiated extension of the briefing
schedule if Plaintiffs had any interest in reaching a deal.V.
Google Has Produced Substantial Discovery
To justify their overbroad Notice, Plaintiffs wrongly accuse Google of “refus[ing] to
produce” the information that Plaintiffs are seeking through a 30(b)(6) deposition. Opp. at 1.
Plaintiffs issued their initial Requests for Production on March 27, 2023, and Google timely served
Objections. After a series of meet and confers, the parties agreed that Google would search the
files of more than 150 custodians and would apply more than 100 search strings to those files.
This process has already led to the production of almost one million Google documents in this
litigation (on top of the approximately 3 million documents produced during the investigation
phase). At Plaintiffs’ request, Google has also conducted—and continues to conduct—a series of
burdensome manual searches for additional documents that are hyperlinked within Google’s
already expansive production.
Plaintiffs overstep when they argue that Google’s motion “does not reflect the state of the parties’
negotiations, even as of the time Google filed its motion.” Opp. at 1. They offer no evidence to
support that claim, and the history of the parties’ negotiations to this point makes plain that
Plaintiffs consistently resisted making written offers to narrow the Notice, until they filed their
response brief. Page 8 PageID#
Google has also produced 28 different sets of aggregated data, plus custom-built
compilations of log-level data drawn from Google Ad Manager, Google Ads, and DV360. The
Google Ad Manager log-level dataset alone includes information about 78.2 billion queries, and
the data productions collectively consist of more than 183 terabytes.3 In response to Plaintiffs’
sweeping requests for source code, Google has made available for inspection over 38 gigabytes of
code, as well as more than 2 million change logs relating to that code. Google has already
responded to 10 Interrogatories, and its responses to 7 additional Interrogatories (not counting their
sub-parts) will be due in the coming days. Plaintiffs have noticed depositions of 9 current and
former Google employees—in addition to the 30(b)(6) deposition that is the subject of Google’s
motion (and in addition to the more than 30 Google depositions taken during the three-and-a-halfyear pre-complaint investigation).
In short, Plaintiffs already have access to an enormous
collection of information.
ARGUMENT
Plaintiffs’ brief suggests where the parties’ disputes remain. For some Topics, the parties
agree that Google need not provide any 30(b)(6) testimony, or have reached agreement on the
scope of testimony. For others, Plaintiffs recognize that Google’s prior discovery responses
contain much of the information that they seek, and their brief fails to identify any specific
deficiencies, let alone sufficient need to justify the additional burden of a 30(b)(6) deposition
during the crowded days near the end of fact discovery. Similarly, Plaintiffs signal that they would
be willing to narrow other Topics and accept written responses in lieu of live testimony. There are
some Topics, however, that remain hopelessly vague, ambiguous, overbroad, and lacking in the
One terabyte has been estimated to be the equivalent of approximately 220 million pages of
printed text. See McNulty v. Reddy Ice Holdings, Inc., 271 F.R.D. 569, 571 n.1 (E.D. Mich. 2011)
(granting motion for protective order). Page 9 PageID#
reasonable particularity necessary to allow Google to prepare corporate designees without undue
burden. Google has repeatedly raised these problems with Plaintiffs, but they have failed to correct
them or suggest ways that they could be narrowed. The Court should enter a protective order
excusing Google from needing to respond to this last category of Topics at all.
I.
The Court Need Not Address Topics That Plaintiffs Have Withdrawn, Deferred, or
Narrowed.
Plaintiffs’ brief suggests that the parties agree on how to proceed with respect to 10 of the
30 Topics in the Notice. Plaintiffs have explicitly “Withdrawn” Topics 17-18 and 28-30. See
Opp. at 4-5. Similarly, Plaintiffs “are willing to defer discovery” on Topics 23-24 (which relate
to a potential divestiture remedy) “until after a liability finding has been reached and there is a
concrete proposal for divestiture.” Id. at 5. During the parties’ negotiations, Google proposed that
Plaintiffs narrow Topics 19-22 to apply only to the Federal Agency Advertisers (“FAAs”).
Plaintiffs are now “willing to accept a narrowing of these topics,” but they propose broader
coverage to include not only the FAAs, but also “the ad agencies that work directly with FAAs.”
Id. at 11. Google is willing to accept Plaintiffs’ counter-proposal and produce a corporate designee
to testify about their narrowed version of Topics 19-22 for up to 2 hours.4 As Google does not
understand there to be any dispute among the parties as to Topics 17-24 or 28-30, the Court need
not address them in a protective order.
II.
The Court Should Not Require Google to Provide Any Further Response to Topics
Already Comprehensively Addressed Through Other Discovery.
As described above, over the last four years, Google has already provided Plaintiffs with a
wealth of information through document productions and other sources of discovery. See supra
Plaintiffs previously indicated that they could complete their questioning on Topics 19-22 in two
hours. Ex. B at 14-15. Plaintiffs should not be permitted to force a witness to testify for longer
than that. Page 10 PageID#
at 7-8. Plaintiffs recognize that such prior productions make it unnecessary for Google to produce
a 30(b)(6) witness on Topics 1-2, 10-12, and 25-27, at least as long as Google provides a written
response to narrower versions of those topics. But in light of Google’s production of so much
material, it would be unduly burdensome and disproportionate to the needs of this case to require
Google to produce a corporate designee to provide duplicative information by deposition or to
compile duplicative information in a written response, particularly when Plaintiffs have not
specified what information they believe is missing from the prior discovery responses.
Topics 1-2. Plaintiffs concede that they are “prepared, in light of Google’s supplemental
response to Interrogatory 3, to . . . narrow certain portions of Topic 1.” Opp. at 9. The
supplemental response to Interrogatory 3 also includes information sought by Topic 2, and
Plaintiffs’ brief expresses a “willing[ness] to accept written responses to narrow the scope of” that
topic (as well as other topics related to accounting issues). Id. at 3. Plaintiffs received the
supplemental response to Interrogatory 3 on August 16, 2023, yet they fail to explain what portions
of Topics 1 and 2 they believe Google has not answered. Without such an explanation, there is no
basis to require Google to provide any further information in response to Topics 1 or 2.
Topics 10-12. Similarly, Plaintiffs recognize that, “[o]ver the course of discovery, Google
has produced . . . data that could aid in significantly narrowing the scope of” Topics 10-12. Opp.
at 9. Google produced portions of that data on July 28 and August 10, with the final portion
delivered to Plaintiffs on August 22. See July 28, 2023 Ltr. from D. Pearl to M. Freeman; Aug. 10,
2023 Ltr. from D. Pearl to M. Freeman; Aug. 22, 2023 Ltr. from D. Pearl to M. Freeman.
“Plaintiffs are hopeful that the information provided will allow Plaintiffs to narrow the scope of
Topics 10-12.” Opp. at 10. But having not identified any portions of Topics 10-12 that they Page 11 PageID#
believe the produced data fails to answer, Plaintiffs cannot reasonably demand for Google to do
any more.
Topics 25-27. According to Plaintiffs’ table, Google should provide “a written response”
to Topics 25-27 because Google has not adequately responded to Plaintiffs’ Request for Production
No. (“RFP”) 58 or answered deposition questions. See Opp. at 5. But Plaintiffs accepted Google’s
proposed response to RFP 58 almost three months ago. Ex. D (June 5, 2023 E-mail from K. Garcia
to R. McCallum). Moreover, Plaintiffs have asked every Google witness deposed in this case (and
many of the Google witnesses deposed during the pre-complaint investigation) about Topics 2527, and no deponent has refused to answer those questions. In light of these facts, Plaintiffs have
no basis for demanding that a corporate designee testify on Topics 25-27.
In light of the discovery that Google has already provided in response to Topics 1-2, 1012, and 25-27, it would be disproportionate to the needs of the case to require Google also to to
prepare and produce corporate designees to testify on those topics.
III.
The Court Should Not Require Google to Prepare a Corporate Designee on Topics
for Which a Written or Documentary Response Will Suffice.
In their brief, Plaintiffs confirmed for the first time that they are willing to accept written
answers in lieu of deposition testimony on Topics 5 through 9. See Opp. at 3, 9. Now having the
benefit of Plaintiffs’ position, Google describes below the types of information that it is willing to
provide in response to each topic. Because Plaintiffs are willing to accept written answers, and
Google is willing to provide them, there is no need for 30(b)(6) testimony.
Topic 5. Topic 5 calls for the same type of information about long-range plans as
Interrogatory 14, which Plaintiffs only served on August 2, 2023 and so Google’s response is not
due until September 1, 2023. The parties are actively negotiating the scope of Google’s response Page 12 PageID#
to Interrogatory 14, and that response will provide the written response that Plaintiffs concede
should be sufficient.
Topic 6. Topic 6 seeks “policies and practices” regarding Google’s use of non-CPM-based
pricing. Plaintiffs are “willing to accept written responses to narrow the scope” of this topic, Opp.
at 3, and Google is willing to provide an appropriately tailored written response.
Topic 7. Like Topic 7, RFP 44 seeks information about Google’s Ariane and RASTA
systems, and the parties have already come to an agreement in principle on a written response to
RFP 44. Specifically, the parties agreed that Google will “(1) produce, on a rolling basis and by
the close of fact discovery, RASTA, REMH, and statslink linked data for the documents Plaintiffs
have identified that can be located after a reasonable manual search by the RASTA engineers; and
(2) conduct an additional manual search for available latest in time launch description documents
associated with the launch IDs included in Plaintiffs’ letters and produce any responsive
documents that are identified.” Aug. 19, 2023 Ltr. from K. Barry to R. McCallum.5 Plaintiffs’
demands for more are emblematic of their proclivity to “turn over every grain of sand,” which this
Court has already warned the parties not to do. See Hr’g Tr. 18:7-12 (Mar. 24, 2023), ECF No.
70. The additional productions that Google offered on August 19 should obviate any need for
30(b)(6) testimony on Topic 7.
Topic 8. On August 1, 2023, Plaintiffs posed a litany of detailed questions about various
Google data productions. See Aug. 1, 2023 Ltr. From M. Freeman to D. Pearl, App’x A. Before
These productions will be in addition to the already expansive discovery that Google has provided
on these issues. During the pre-suit investigation, Google negotiated and agreed with DOJ on the
scope of a search for Ariane-related materials, which led to the collection and production of over
40,000 documents over the course of 6 months. Then, as part of this litigation, Google agreed to
add multiple Ariane-related custodians on the understanding that the production of documents
from their files would discharge Google’s obligations to respond further to RFP 44. Since then,
Google has also generated other information related to Ariane and is in the process of responding
to a third tranche of requests for hyperlinked documents. Page 13 PageID#
Google could respond substantively, Plaintiffs incorporated—and expanded upon—those
questions in Topic 8. Google is willing to provide written answers to the questions posed in
Plaintiffs’ August 1 letter, despite there being far more questions than interrogatories that Plaintiffs
would be allowed to serve. See ECF No. 87 ¶ 6.B (limiting each side to 30 interrogatories); ECF
No. 94 (approving Joint Discovery Plan at ECF No. 87).
Topic 9. Google is willing to provide written answers to Topic 9(a), (b), and (d). As
explained in Google’s opening brief, Topic 9(c) calls for information protected by the attorneyclient privilege and work-product doctrine, see Google’s Mem. in Supp. of Mot. for Prot. Or. at
15-16, ECF No. 312, and Plaintiffs do not even bother to address those issues in their response.
IV.
The Court Should Not Require Google to Designate a Witness to Respond to Vague,
Amorphous, and Overbroad Topics.
Given the amount of time that Plaintiffs have spent investigating Google’s alleged conduct
and the enormous amount of information that Google has already produced, Plaintiffs should be
able to draft topics that describe with reasonable particularity the issues to be covered during any
30(b)(6) deposition. See Order at 2, ECF No. 326 (“[T]he topics must describe with reasonable
particularity the matters of examination and they must take into account the discovery that has
been undertaken to date and issues of proportionality.”); Banks v. Off. of Senate Sergeant-at-Arms,
222 F.R.D. 7, 19 (D.D.C. 2004) (30(b)(6) depositions should be “meaningful exercises in
ascertaining information that has not been previously discovered or are necessary”). Because
several of Plaintiffs’ topics are so vague and amorphous as to fail to clear Rule 30’s “reasonable
particularity” threshold, Google should not be required to designate any 30(b)(6) witness or
provide any written response on those topics.
Topics 13-14. Topics 13 and 14 are so vague and broad that it would be impossible for
Google to prepare witnesses to testify about them. Topic 13 seeks testimony about “Google’s Page 14 PageID#
measurement, evaluation, and understanding of the value of . . . any data,” without providing any
limitation on what kinds of data are relevant. Google is a technology company, so preparing
witnesses to testify regarding “any data” is simply not feasible. And to make matters worse, Topic
13 does not include any limitation on the concept of “value” either. To the contrary, Topic encompasses value, “whether expressed as dollar amounts or some other metric, whether monetary
or non-monetary and whether measured by the quality, utility, or usefulness.” Nor could Google
comply with Topic 13 by preparing a witness to testify about every conception of value for every
kind of data; “[f]or clarity,” the topic also requires Google to repeat the exercise for “any data
whether considered alone or in conjunction with other datasets.” And then sub-Topics 13(a), (b),
and (c) seek even more details about the “linkage or association of the data with any other data,”
the source of the data (even if it comes from “third-parties”), and Google’s use of the data “for
any . . . purpose.” Topic 14 suffers from similar defects, as it seeks “Google’s processes for
measuring and evaluating the impact of the collection of data of any type on its business
performance or processes.”
The “impact” of “data of any type” on Google’s “business
performance or processes” is simply too broad a subject to be appropriate for oral testimony.
While Plaintiffs state that they “would be willing to consider a proposal if Google believes
these issues can be addressed via written submission,” Opp. at 4, insisting on a written response
does nothing to correct the gross vagueness and overbreadth of Topics 13 and 14. Plaintiffs cannot
simply evade their responsibility to draft topics with reasonable particularity by implying that
Google should come up with a proposal to fix their Notice. See Palmer v. Big Lots Stores, Inc.,
No. 3:14-CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (the noticing party must
describe topics “with reasonable particularity,” or “designating a representative in compliance with Page 15 PageID#
the deposition notice becomes impossible” because the responding party “is unable to identify the
outer limits of the areas of inquiry noticed”).
Finally, Plaintiffs’ citation to Marker v. Union Fid. Life Ins. Co. does not help their cause
because the plaintiffs in Marker were seeking a corporate witness “to answer specific questions”
concerning a specific set of data. 125 F.R.D. 121, 125-26 (M.D.N.C. 1989) (emphasis added).
That is the opposite of what Plaintiffs have sought to do here.
Topics 15-16. Topic 15 seeks information about “how data is passed, shared, or exchanged
among or between” any of Google’s digital display advertising products, and Topic 16 covers “any
datasets accessible to and accessed” by any of those products. Like Topics 13 and 14, Topics and 16 sweep in ill-defined, but massive amounts of data. And Topics 15 and 16 are even broader
in that they reach back for historical information about how data was “shared” or “accessed”
throughout the period from 2010 to the present. Having failed to describe with reasonable
particularity the kinds of data and data sharing in which they are interested, Plaintiffs should not
be allowed to obligate Google to provide 30(b)(6) testimony on Topics 15-16.
Topics 3-4. Topics 3 and 4 seek testimony regarding “economies of scale” and “economies
of scope,” respectively. These areas are more properly the province of expert witnesses, and
Google should not be required to educate a corporate designee about those technical concepts and
their application (if any) to Google. Beyond that, Topics 3 and 4 appear to seek to require Google
to conduct multiple, complex economic studies in preparation for a 30(b)(6) deposition. For
instance, Topic 3(a) refers to “[t]he extent to which increases in volumes . . . lead to higher margins
via proportionate cost savings, both over the short run . . . and long run,” apparently expecting
Google to study at least volumes, margins, and costs over at least two different time horizons. To
make matters worse, Plaintiffs would have Google repeat those analyses “[s]eparately for AdX, Page 16 PageID#
AdSense, DFP, GAM, GDN, DV360, and successor and predecessor products and services,” vastly
multiplying the preparation required. Topics 4(a) and 4(b) likewise require analysis of “[a]ny
proportionate cost saving gained by combining two or more” Google services and “[a]ny increase
in sales facilitated by producing two or more” Google services. In light of the number of different
Google services, and the number of potentially different ways that “two or more” of them could
be “combined,” there is no feasible way to prepare a witness to testify about Topic 4. Having
failed with Topics 3 and 4 to describe the matters for examination with reasonable particularity,
the Court should not obligate Google to provide any response to those topics, especially when
Plaintiffs have received profit-and-loss statements that should allow their experts to conduct the
studies that they deem pertinent.
CONCLUSION
For these reasons, Google respectfully requests that the Court enter an order that (1)
protects Google from any obligation to provide responses to Topics 1-2, 10-12, and 25-27 beyond
those already provided; (2) authorizes Google to make the written submissions and provide the
materials described above in lieu of testimony on Topics 5-9; and (3) protects Google from any
obligation to provide testimony or a written response on Topics 3-4 and 13-16. Page 17 PageID#
Dated: August 24,
Respectfully submitted,
Eric Mahr (pro hac vice)
Julie S. Elmer (pro hac vice)
Andrew J. Ewalt (pro hac vice)
Justina Sessions (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Scott Eisman (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-Email: eric.mahr@freshfields.com
/s/ Craig C. Reilly
CRAIG C. REILLY (VSB # 20942)
209 Madison Street
Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-Email: Craig.reilly@ccreillylaw.com
Daniel S. Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus
David Pearl (pro hac vice)
Allison Vissichelli (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
dpearl@axinn.com
avissichelli@axinn.com
Karen L. Dunn (admitted pro hac vice)
Jeannie Rhee (admitted pro hac vice)
William Isaacson (admitted pro hac vice)
Joseph Bial (admitted pro hac vice)
Amy J. Mauser (admitted pro hac vice)
Martha L. Goodman (admitted pro hac vice)
Bryon Becker (VSB # 93384)
Erica Spevack (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street NW
Washington, DC Telephone: (202) 223-Facsimile: (202) 223-kdunn@paulweiss.com
jrhee@paulweiss.com
wisaacson@paulweiss.com
jbial@paulweiss.com
amauser@paulweiss.com
mgoodman@paulweiss.com
bpbecker@paulweiss.com
espevack@paulweiss.com
Meredith Dearborn (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearnborn@paulweiss.com
Counsel for Google LLC
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 1 of 17 PageID# 5000
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-00108
(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR A PROTECTIVE ORDER REGARDING
PLAINTIFFS’ RULE 30(B)(6) DEPOSITION NOTICE
As the Court recently explained, Rule 30(b)(6) deposition “topics must describe with
reasonable particularity the matters of examination and they must take into account the discovery
that has been undertaken and issues of proportionality.” Order at 2, ECF No. 326. Plaintiffs’
Notice of Deposition to Google fails to clear that bar. Some parts of their Notice rehash topics
that have already been explored exhaustively through other discovery methods. Others seek
information that even Plaintiffs now concede should more properly be provided in writing than via
testimony. And still others—such as topics vaguely referencing any “data” that Google uses,
collects, shares, or accesses—fail to describe issues with sufficient particularity for a technology
company like Google to prepare a witness to testify.
Rather than confront the deficiencies in their Notice, Plaintiffs attempt to paint Google’s
motion as a premature “race to the courthouse,” when the history of the parties’ negotiations shows
that Plaintiffs repeatedly rebuffed Google’s attempts to engage in productive negotiations. Despite
their claim that they had “indicated a willingness to substantially narrow the scope of their Rule
1
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 2 of 17 PageID# 5001
30(b)(6) notice,” Pls.’ Resp. to Google’s Mot. for a Protective Order (“Opp.”) at 1, ECF No. 327,
Plaintiffs declined multiple requests from Google for a written proposal so that the parties could
actually engage in productive negotiations. Instead, Plaintiffs chose to negotiate through court
filings, using their response brief to make their first proposal touching all Topics in their Notice.
Google replies here to correct the record and to help further narrow the issues before the Court.
BACKGROUND
I.
The Notice and Early Meet and Confers
On Wednesday, August 9, Plaintiffs served Google with a Notice of Deposition pursuant
to Federal Rule of Civil Procedure 30(b)(6) (the “Notice”) that identified 30 topics, which included
approximately 170 sub-topics. Ex. A to Mot., ECF No. 312-1. Plaintiffs noticed the deposition
for Wednesday, August 30, leaving Google with only three weeks to prepare numerous corporate
designees on a mountain of issues.
Google served formal written objections to the Notice on Monday, August 14. See Ex. A.
Those objections identified in detail and with precision the many ways that the Notice was vague,
ambiguous, overbroad, unduly burdensome, and disproportionate to the needs of the case. The
objections also offered to meet and confer with Plaintiffs in an attempt to narrow areas of dispute.
Google reiterated its objections and asked for Plaintiffs to propose ways to narrow the Notice in
three meet-and-confer sessions held on August 16 and 17.
II.
Proposals for a “Standstill” Agreement
During the meet-and-confer sessions, Google made clear that, if the parties did not reach
agreement quickly, Google would—consistent with the Rule 16(b) Scheduling Order for this
case—be forced to file a motion for a protective order on Friday, August 18, so that the motion
could be heard on August 25, the last Friday before the noticed date of the deposition. See Rule
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 3 of 17 PageID# 5002
16(b) Scheduling Order, ECF No. 94 ¶ 18(e). Rather than propose ways to narrow the Notice, at
6:11 pm on August 17, Plaintiffs proposed a one-sided “standstill” agreement that would prevent
only Google from moving for a protective order until August 25. Ex. B at 9. At 9:49 pm, Google
responded with a counter-proposal that would have prevented both sides from seeking protective
orders until August 25, allowing negotiations to continue without disadvantaging either side. Id.
at 7-8.
On August 18, the parties met-and-conferred about the standstill agreement. During that
meeting, Plaintiffs’ gambit became clear: rather than actually negotiating to narrow the scope of
the parties’ 30(b)(6) notices, Plaintiffs wanted one-sided relief. Plaintiffs revealed that they would
not accept Google’s counter-proposal of a mutual standstill agreement because they intended to
file, later that day, a motion for judgment on the pleadings and, in the alternative, a protective order
that would preclude Google from obtaining discovery into topics that Plaintiffs are eager not to
have explored. The meet-and-confer was the first time that Plaintiffs indicated they would move
for judgment on the pleadings and a protective order, while they simultaneously sought to delay
Google's motion for a protective order.
Google responded to the sudden news by requesting that Plaintiffs describe in writing how
they would propose for their motion for judgment on the pleadings to affect timing of the parties’
negotiations over the Notice. At 1:41 pm, Plaintiffs proposed that Google should not file any
motion for a protective order before August 25, while Plaintiffs would move for a protective order
of their own. Ex. B at 6-7. Google rejected Plaintiffs’ self-serving proposal at 4:16 pm, informed
them that it was preparing to move for a protective order, and once again urged Plaintiffs to accept
the reciprocal standstill agreement that it had proposed the night before—one which would have
simply removed the time pressure of motion practice related to the discovery deadlines and
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 4 of 17 PageID# 5003
allowed the parties to continue negotiations. Id. at 5. Plaintiffs did not accept that offer.
Accordingly, Google had to file its motion for a protective order. ECF No. 311. Plaintiffs filed
their motion for judgment on the pleadings or, in the alternative, a protective order, later that
evening. ECF No. 317.
Unlike Plaintiffs’ selective recitation of these events, the parties’ correspondence shows
that Google did not reject a “mutual standstill” (as Plaintiffs now claim, see Pls.’ Mem. in Supp.
of Mot. for Protective Order at 6, ECF No. 322); Google was always willing to defer filing a
motion for a protective order, as long as Plaintiffs would do the same. See Ex. B at 8. Even when
Plaintiffs sprung on Google their plan to seek judgment on the pleadings mere hours before filing
the motion—and only when Google’s proposed reciprocal standstill forced them to disclose their
plans—Google held out an option for the parties to agree to defer their filing of motions for
protective orders. It remains unclear why that was unacceptable to Plaintiffs, as Google’s offer
would not have delayed them from seeking judgment on the pleadings.1 And it is ironic indeed
for Plaintiffs now to accuse Google of making a “premature” motion for a protective order, see
Opp. at 1, when they rejected Google’s offer that both sides delay filing such motions, and when
Google waited until the last possible day to seek a protective order that could take effect before a
deposition noticed for August 30.
1
Google’s offer would have prevented Plaintiffs from seeking a protective order on August 18 “in
the alternative” to their motion for judgment on the pleadings, cf. Pls.’ Mem. of L. in Supp. of Mot.
for Part. J. on the Pleadings, ECF No. 318 at 23-27, but Plaintiffs still could have moved for
judgment on the pleadings on August 18 and later moved for a protective order. The contrary
claim in their motion to continue Google’s motion for a protective order is false. See Pls.’ Mot. to
Continue Hr’g, ECF No. 324 ¶ 2 (“Google informed Plaintiffs . . . that it was not agreeable to a
standstill as long as Plaintiffs were planning to proceed with filing their motion for partial
judgment on the pleadings or a protective order.”).
4
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 5 of 17 PageID# 5004
III.
The Continuance
On Monday, August 21, Plaintiffs informed Google that they intended to file their own
additional motion for a protective order and separately to move to continue the hearing on Google’s
motion for a protective order from August 25 to September 1. Ex. B at 3-4. On Tuesday, August
22 at 12:14 pm, Google reported that it was not inclined to continue the hearing because a
continuance would prevent it from gaining timely clarity about the scope of its obligations to
prepare witnesses for 30(b)(6) testimony, id. at 2-3, given fact discovery closes on September 8.
On a separate phone call on August 22, Google resumed the meet-and-confer process by
proposing ways that Plaintiffs could narrow the Notice. To better inform the negotiations and to
confirm the parties’ respective positions, Google requested that Plaintiffs provide a written
proposal, which they had yet to do. Soon after that conversation, at 12:41 pm, Plaintiffs stated that
they would consider Google’s suggestions, but also pressed Google to confirm its position on the
motion to continue by 2:30 pm. Ex. B at 1-2. At 1:44 pm on August 22, Google confirmed that it
would oppose a motion to continue if it were to be filed that afternoon, while holding out the
possibility that it would agree to a continuance if Plaintiffs responded to “the ideas for narrowing
Plaintiffs’ 30(b)(6) notice that we discussed earlier today.” Id. at 1. Plaintiffs proceeded to file
their motion and offered no suggestions for narrowing their 30(b)(6) notice. Pls.’ Mot. to Continue
Hr’g, ECF No. 324.
IV.
The Briefing Schedule
After the motion was granted on August 22, see Order, ECF No. 326, the parties discussed
the briefing schedule in light of the hearing moving from August 25 to September 1. Plaintiffs
indicated that, despite the new date, they intended to file their response to Google’s motion for a
protective order on August 23 (the original, pre-continuance deadline). Plaintiffs also proposed
5
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 6 of 17 PageID# 5005
that the parties agree to ask the Court to adjust the briefing schedules not only for Google’s motion
(so that the deadline for Plaintiffs’ response would be deferred until noon on August 28 and
Google’s reply would be due at 9 pm on August 30), but also for Plaintiffs’ motion (so that the
deadline for Google’s response would be accelerated to August 28).
Google rejected the idea that Plaintiffs should have more time for their response, while
Google should have less for its response. Ex. C at 3-5. Google also reiterated its request that
Plaintiffs “make a comprehensive written proposal describing what information from their
30(b)(6) notice they actually need from Google, ‘tak[ing] into account the discovery that has been
undertaken to date and issues of proportionality,’ as well as the requirement that topics be
described with reasonable particularity,” consistent with the Court’s guidance. Id. at 4 (quoting
Order at 2, ECF No. 326). If Plaintiffs agreed to make that written proposal by noon on August
23, Google committed to “join in a motion to extend the deadlines” related to Google’s motion for
a protective order. Id. And Google did not stop there. In a further showing of good faith, Google
made its own significant, unilateral accommodations to address concerns that the United States
had raised with respect to Google’s 30(b)(6) notice to the United States. Id. at 4-5.
At 1:15 pm on August 23, Plaintiffs again declined to provide a proposal to narrow the
Notice because doing so would “not provide plaintiffs with any meaningful benefit” after they
were close to completing their “multi-day process” of drafting a response to Google’s motion. Ex.
C at 2-3 (emphasis added). Despite Plaintiffs’ continued refusal to propose any narrowing of the
Notice, with the parties stating that they intended to negotiate, Google “anticipate[d] that the Court
will find it more helpful to review briefs that address the parties’ positions closer in time to next
Friday’s hearing (rather than briefs that reflect positions taken before Plaintiffs have made a
substantive proposal)” and accordingly offered to join a motion to extend the time for Plaintiffs to
6
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 7 of 17 PageID# 5006
respond to Google’s motion for a protective order. Id. at 1-2 (emphasis added). Plaintiffs again
declined to delay their filing. Id. at 1.
In light of their repeated insistence on filing briefs and their delay in offering a written
proposal to narrow their Notice, Plaintiffs’ complaints about Google’s “premature” motion ring
hollow. See Opp. at 1. That is all the more so when the table in their brief (see Opp. at 3-5)—the
product of a “multi-day” drafting process—is just the type of written proposal that Google asked
them to make and that easily could have been the basis for a negotiated extension of the briefing
schedule if Plaintiffs had any interest in reaching a deal.2
V.
Google Has Produced Substantial Discovery
To justify their overbroad Notice, Plaintiffs wrongly accuse Google of “refus[ing] to
produce” the information that Plaintiffs are seeking through a 30(b)(6) deposition. Opp. at 1.
Plaintiffs issued their initial Requests for Production on March 27, 2023, and Google timely served
Objections. After a series of meet and confers, the parties agreed that Google would search the
files of more than 150 custodians and would apply more than 100 search strings to those files.
This process has already led to the production of almost one million Google documents in this
litigation (on top of the approximately 3 million documents produced during the investigation
phase). At Plaintiffs’ request, Google has also conducted—and continues to conduct—a series of
burdensome manual searches for additional documents that are hyperlinked within Google’s
already expansive production.
2
Plaintiffs overstep when they argue that Google’s motion “does not reflect the state of the parties’
negotiations, even as of the time Google filed its motion.” Opp. at 1. They offer no evidence to
support that claim, and the history of the parties’ negotiations to this point makes plain that
Plaintiffs consistently resisted making written offers to narrow the Notice, until they filed their
response brief.
7
PDF Page 9
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 8 of 17 PageID# 5007
Google has also produced 28 different sets of aggregated data, plus custom-built
compilations of log-level data drawn from Google Ad Manager, Google Ads, and DV360. The
Google Ad Manager log-level dataset alone includes information about 78.2 billion queries, and
the data productions collectively consist of more than 183 terabytes.3 In response to Plaintiffs’
sweeping requests for source code, Google has made available for inspection over 38 gigabytes of
code, as well as more than 2 million change logs relating to that code. Google has already
responded to 10 Interrogatories, and its responses to 7 additional Interrogatories (not counting their
sub-parts) will be due in the coming days. Plaintiffs have noticed depositions of 9 current and
former Google employees—in addition to the 30(b)(6) deposition that is the subject of Google’s
motion (and in addition to the more than 30 Google depositions taken during the three-and-a-halfyear pre-complaint investigation).
In short, Plaintiffs already have access to an enormous
collection of information.
ARGUMENT
Plaintiffs’ brief suggests where the parties’ disputes remain. For some Topics, the parties
agree that Google need not provide any 30(b)(6) testimony, or have reached agreement on the
scope of testimony. For others, Plaintiffs recognize that Google’s prior discovery responses
contain much of the information that they seek, and their brief fails to identify any specific
deficiencies, let alone sufficient need to justify the additional burden of a 30(b)(6) deposition
during the crowded days near the end of fact discovery. Similarly, Plaintiffs signal that they would
be willing to narrow other Topics and accept written responses in lieu of live testimony. There are
some Topics, however, that remain hopelessly vague, ambiguous, overbroad, and lacking in the
3
One terabyte has been estimated to be the equivalent of approximately 220 million pages of
printed text. See McNulty v. Reddy Ice Holdings, Inc., 271 F.R.D. 569, 571 n.1 (E.D. Mich. 2011)
(granting motion for protective order).
8
PDF Page 10
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 9 of 17 PageID# 5008
reasonable particularity necessary to allow Google to prepare corporate designees without undue
burden. Google has repeatedly raised these problems with Plaintiffs, but they have failed to correct
them or suggest ways that they could be narrowed. The Court should enter a protective order
excusing Google from needing to respond to this last category of Topics at all.
I.
The Court Need Not Address Topics That Plaintiffs Have Withdrawn, Deferred, or
Narrowed.
Plaintiffs’ brief suggests that the parties agree on how to proceed with respect to 10 of the
30 Topics in the Notice. Plaintiffs have explicitly “Withdrawn” Topics 17-18 and 28-30. See
Opp. at 4-5. Similarly, Plaintiffs “are willing to defer discovery” on Topics 23-24 (which relate
to a potential divestiture remedy) “until after a liability finding has been reached and there is a
concrete proposal for divestiture.” Id. at 5. During the parties’ negotiations, Google proposed that
Plaintiffs narrow Topics 19-22 to apply only to the Federal Agency Advertisers (“FAAs”).
Plaintiffs are now “willing to accept a narrowing of these topics,” but they propose broader
coverage to include not only the FAAs, but also “the ad agencies that work directly with FAAs.”
Id. at 11. Google is willing to accept Plaintiffs’ counter-proposal and produce a corporate designee
to testify about their narrowed version of Topics 19-22 for up to 2 hours.4 As Google does not
understand there to be any dispute among the parties as to Topics 17-24 or 28-30, the Court need
not address them in a protective order.
II.
The Court Should Not Require Google to Provide Any Further Response to Topics
Already Comprehensively Addressed Through Other Discovery.
As described above, over the last four years, Google has already provided Plaintiffs with a
wealth of information through document productions and other sources of discovery. See supra
4
Plaintiffs previously indicated that they could complete their questioning on Topics 19-22 in two
hours. Ex. B at 14-15. Plaintiffs should not be permitted to force a witness to testify for longer
than that.
9
PDF Page 11
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 10 of 17 PageID# 5009
at 7-8. Plaintiffs recognize that such prior productions make it unnecessary for Google to produce
a 30(b)(6) witness on Topics 1-2, 10-12, and 25-27, at least as long as Google provides a written
response to narrower versions of those topics. But in light of Google’s production of so much
material, it would be unduly burdensome and disproportionate to the needs of this case to require
Google to produce a corporate designee to provide duplicative information by deposition or to
compile duplicative information in a written response, particularly when Plaintiffs have not
specified what information they believe is missing from the prior discovery responses.
Topics 1-2. Plaintiffs concede that they are “prepared, in light of Google’s supplemental
response to Interrogatory 3, to . . . narrow certain portions of Topic 1.” Opp. at 9. The
supplemental response to Interrogatory 3 also includes information sought by Topic 2, and
Plaintiffs’ brief expresses a “willing[ness] to accept written responses to narrow the scope of” that
topic (as well as other topics related to accounting issues). Id. at 3. Plaintiffs received the
supplemental response to Interrogatory 3 on August 16, 2023, yet they fail to explain what portions
of Topics 1 and 2 they believe Google has not answered. Without such an explanation, there is no
basis to require Google to provide any further information in response to Topics 1 or 2.
Topics 10-12. Similarly, Plaintiffs recognize that, “[o]ver the course of discovery, Google
has produced . . . data that could aid in significantly narrowing the scope of” Topics 10-12. Opp.
at 9. Google produced portions of that data on July 28 and August 10, with the final portion
delivered to Plaintiffs on August 22. See July 28, 2023 Ltr. from D. Pearl to M. Freeman; Aug. 10,
2023 Ltr. from D. Pearl to M. Freeman; Aug. 22, 2023 Ltr. from D. Pearl to M. Freeman.
“Plaintiffs are hopeful that the information provided will allow Plaintiffs to narrow the scope of
Topics 10-12.” Opp. at 10. But having not identified any portions of Topics 10-12 that they
10
PDF Page 12
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 11 of 17 PageID# 5010
believe the produced data fails to answer, Plaintiffs cannot reasonably demand for Google to do
any more.
Topics 25-27. According to Plaintiffs’ table, Google should provide “a written response”
to Topics 25-27 because Google has not adequately responded to Plaintiffs’ Request for Production
No. (“RFP”) 58 or answered deposition questions. See Opp. at 5. But Plaintiffs accepted Google’s
proposed response to RFP 58 almost three months ago. Ex. D (June 5, 2023 E-mail from K. Garcia
to R. McCallum). Moreover, Plaintiffs have asked every Google witness deposed in this case (and
many of the Google witnesses deposed during the pre-complaint investigation) about Topics 2527, and no deponent has refused to answer those questions. In light of these facts, Plaintiffs have
no basis for demanding that a corporate designee testify on Topics 25-27.
In light of the discovery that Google has already provided in response to Topics 1-2, 1012, and 25-27, it would be disproportionate to the needs of the case to require Google also to to
prepare and produce corporate designees to testify on those topics.
III.
The Court Should Not Require Google to Prepare a Corporate Designee on Topics
for Which a Written or Documentary Response Will Suffice.
In their brief, Plaintiffs confirmed for the first time that they are willing to accept written
answers in lieu of deposition testimony on Topics 5 through 9. See Opp. at 3, 9. Now having the
benefit of Plaintiffs’ position, Google describes below the types of information that it is willing to
provide in response to each topic. Because Plaintiffs are willing to accept written answers, and
Google is willing to provide them, there is no need for 30(b)(6) testimony.
Topic 5. Topic 5 calls for the same type of information about long-range plans as
Interrogatory 14, which Plaintiffs only served on August 2, 2023 and so Google’s response is not
due until September 1, 2023. The parties are actively negotiating the scope of Google’s response
11
PDF Page 13
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 12 of 17 PageID# 5011
to Interrogatory 14, and that response will provide the written response that Plaintiffs concede
should be sufficient.
Topic 6. Topic 6 seeks “policies and practices” regarding Google’s use of non-CPM-based
pricing. Plaintiffs are “willing to accept written responses to narrow the scope” of this topic, Opp.
at 3, and Google is willing to provide an appropriately tailored written response.
Topic 7. Like Topic 7, RFP 44 seeks information about Google’s Ariane and RASTA
systems, and the parties have already come to an agreement in principle on a written response to
RFP 44. Specifically, the parties agreed that Google will “(1) produce, on a rolling basis and by
the close of fact discovery, RASTA, REMH, and statslink linked data for the documents Plaintiffs
have identified that can be located after a reasonable manual search by the RASTA engineers; and
(2) conduct an additional manual search for available latest in time launch description documents
associated with the launch IDs included in Plaintiffs’ letters and produce any responsive
documents that are identified.” Aug. 19, 2023 Ltr. from K. Barry to R. McCallum.5 Plaintiffs’
demands for more are emblematic of their proclivity to “turn over every grain of sand,” which this
Court has already warned the parties not to do. See Hr’g Tr. 18:7-12 (Mar. 24, 2023), ECF No.
70. The additional productions that Google offered on August 19 should obviate any need for
30(b)(6) testimony on Topic 7.
Topic 8. On August 1, 2023, Plaintiffs posed a litany of detailed questions about various
Google data productions. See Aug. 1, 2023 Ltr. From M. Freeman to D. Pearl, App’x A. Before
5
These productions will be in addition to the already expansive discovery that Google has provided
on these issues. During the pre-suit investigation, Google negotiated and agreed with DOJ on the
scope of a search for Ariane-related materials, which led to the collection and production of over
40,000 documents over the course of 6 months. Then, as part of this litigation, Google agreed to
add multiple Ariane-related custodians on the understanding that the production of documents
from their files would discharge Google’s obligations to respond further to RFP 44. Since then,
Google has also generated other information related to Ariane and is in the process of responding
to a third tranche of requests for hyperlinked documents.
12
PDF Page 14
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 13 of 17 PageID# 5012
Google could respond substantively, Plaintiffs incorporated—and expanded upon—those
questions in Topic 8. Google is willing to provide written answers to the questions posed in
Plaintiffs’ August 1 letter, despite there being far more questions than interrogatories that Plaintiffs
would be allowed to serve. See ECF No. 87 ¶ 6.B (limiting each side to 30 interrogatories); ECF
No. 94 (approving Joint Discovery Plan at ECF No. 87).
Topic 9. Google is willing to provide written answers to Topic 9(a), (b), and (d). As
explained in Google’s opening brief, Topic 9(c) calls for information protected by the attorneyclient privilege and work-product doctrine, see Google’s Mem. in Supp. of Mot. for Prot. Or. at
15-16, ECF No. 312, and Plaintiffs do not even bother to address those issues in their response.
IV.
The Court Should Not Require Google to Designate a Witness to Respond to Vague,
Amorphous, and Overbroad Topics.
Given the amount of time that Plaintiffs have spent investigating Google’s alleged conduct
and the enormous amount of information that Google has already produced, Plaintiffs should be
able to draft topics that describe with reasonable particularity the issues to be covered during any
30(b)(6) deposition. See Order at 2, ECF No. 326 (“[T]he topics must describe with reasonable
particularity the matters of examination and they must take into account the discovery that has
been undertaken to date and issues of proportionality.”); Banks v. Off. of Senate Sergeant-at-Arms,
222 F.R.D. 7, 19 (D.D.C. 2004) (30(b)(6) depositions should be “meaningful exercises in
ascertaining information that has not been previously discovered or are necessary”). Because
several of Plaintiffs’ topics are so vague and amorphous as to fail to clear Rule 30’s “reasonable
particularity” threshold, Google should not be required to designate any 30(b)(6) witness or
provide any written response on those topics.
Topics 13-14. Topics 13 and 14 are so vague and broad that it would be impossible for
Google to prepare witnesses to testify about them. Topic 13 seeks testimony about “Google’s
13
PDF Page 15
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 14 of 17 PageID# 5013
measurement, evaluation, and understanding of the value of . . . any data,” without providing any
limitation on what kinds of data are relevant. Google is a technology company, so preparing
witnesses to testify regarding “any data” is simply not feasible. And to make matters worse, Topic
13 does not include any limitation on the concept of “value” either. To the contrary, Topic 13
encompasses value, “whether expressed as dollar amounts or some other metric, whether monetary
or non-monetary and whether measured by the quality, utility, or usefulness.” Nor could Google
comply with Topic 13 by preparing a witness to testify about every conception of value for every
kind of data; “[f]or clarity,” the topic also requires Google to repeat the exercise for “any data
whether considered alone or in conjunction with other datasets.” And then sub-Topics 13(a), (b),
and (c) seek even more details about the “linkage or association of the data with any other data,”
the source of the data (even if it comes from “third-parties”), and Google’s use of the data “for
any . . . purpose.” Topic 14 suffers from similar defects, as it seeks “Google’s processes for
measuring and evaluating the impact of the collection of data of any type on its business
performance or processes.”
The “impact” of “data of any type” on Google’s “business
performance or processes” is simply too broad a subject to be appropriate for oral testimony.
While Plaintiffs state that they “would be willing to consider a proposal if Google believes
these issues can be addressed via written submission,” Opp. at 4, insisting on a written response
does nothing to correct the gross vagueness and overbreadth of Topics 13 and 14. Plaintiffs cannot
simply evade their responsibility to draft topics with reasonable particularity by implying that
Google should come up with a proposal to fix their Notice. See Palmer v. Big Lots Stores, Inc.,
No. 3:14-CV-276, 2014 WL 3895698, at *1 (E.D. Va. Aug. 8, 2014) (the noticing party must
describe topics “with reasonable particularity,” or “designating a representative in compliance with
14
PDF Page 16
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 15 of 17 PageID# 5014
the deposition notice becomes impossible” because the responding party “is unable to identify the
outer limits of the areas of inquiry noticed”).
Finally, Plaintiffs’ citation to Marker v. Union Fid. Life Ins. Co. does not help their cause
because the plaintiffs in Marker were seeking a corporate witness “to answer specific questions”
concerning a specific set of data. 125 F.R.D. 121, 125-26 (M.D.N.C. 1989) (emphasis added).
That is the opposite of what Plaintiffs have sought to do here.
Topics 15-16. Topic 15 seeks information about “how data is passed, shared, or exchanged
among or between” any of Google’s digital display advertising products, and Topic 16 covers “any
datasets accessible to and accessed” by any of those products. Like Topics 13 and 14, Topics 15
and 16 sweep in ill-defined, but massive amounts of data. And Topics 15 and 16 are even broader
in that they reach back for historical information about how data was “shared” or “accessed”
throughout the period from 2010 to the present. Having failed to describe with reasonable
particularity the kinds of data and data sharing in which they are interested, Plaintiffs should not
be allowed to obligate Google to provide 30(b)(6) testimony on Topics 15-16.
Topics 3-4. Topics 3 and 4 seek testimony regarding “economies of scale” and “economies
of scope,” respectively. These areas are more properly the province of expert witnesses, and
Google should not be required to educate a corporate designee about those technical concepts and
their application (if any) to Google. Beyond that, Topics 3 and 4 appear to seek to require Google
to conduct multiple, complex economic studies in preparation for a 30(b)(6) deposition. For
instance, Topic 3(a) refers to “[t]he extent to which increases in volumes . . . lead to higher margins
via proportionate cost savings, both over the short run . . . and long run,” apparently expecting
Google to study at least volumes, margins, and costs over at least two different time horizons. To
make matters worse, Plaintiffs would have Google repeat those analyses “[s]eparately for AdX,
15
PDF Page 17
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 16 of 17 PageID# 5015
AdSense, DFP, GAM, GDN, DV360, and successor and predecessor products and services,” vastly
multiplying the preparation required. Topics 4(a) and 4(b) likewise require analysis of “[a]ny
proportionate cost saving gained by combining two or more” Google services and “[a]ny increase
in sales facilitated by producing two or more” Google services. In light of the number of different
Google services, and the number of potentially different ways that “two or more” of them could
be “combined,” there is no feasible way to prepare a witness to testify about Topic 4. Having
failed with Topics 3 and 4 to describe the matters for examination with reasonable particularity,
the Court should not obligate Google to provide any response to those topics, especially when
Plaintiffs have received profit-and-loss statements that should allow their experts to conduct the
studies that they deem pertinent.
CONCLUSION
For these reasons, Google respectfully requests that the Court enter an order that (1)
protects Google from any obligation to provide responses to Topics 1-2, 10-12, and 25-27 beyond
those already provided; (2) authorizes Google to make the written submissions and provide the
materials described above in lieu of testimony on Topics 5-9; and (3) protects Google from any
obligation to provide testimony or a written response on Topics 3-4 and 13-16.
16
PDF Page 18
Case 1:23-cv-00108-LMB-JFA Document 335 Filed 08/24/23 Page 17 of 17 PageID# 5016
Dated: August 24, 2023
Respectfully submitted,
Eric Mahr (pro hac vice)
Julie S. Elmer (pro hac vice)
Andrew J. Ewalt (pro hac vice)
Justina Sessions (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Scott Eisman (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
Email: eric.mahr@freshfields.com
/s/ Craig C. Reilly
CRAIG C. REILLY (VSB # 20942)
209 Madison Street
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
Email: Craig.reilly@ccreillylaw.com
Daniel S. Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
dbitton@axinn.com
Bradley Justus
David Pearl (pro hac vice)
Allison Vissichelli (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
dpearl@axinn.com
avissichelli@axinn.com
Karen L. Dunn (admitted pro hac vice)
Jeannie Rhee (admitted pro hac vice)
William Isaacson (admitted pro hac vice)
Joseph Bial (admitted pro hac vice)
Amy J. Mauser (admitted pro hac vice)
Martha L. Goodman (admitted pro hac vice)
Bryon Becker (VSB # 93384)
Erica Spevack (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street NW
Washington, DC 20006
Telephone: (202) 223-7300
Facsimile: (202) 223-7420
kdunn@paulweiss.com
jrhee@paulweiss.com
wisaacson@paulweiss.com
jbial@paulweiss.com
amauser@paulweiss.com
mgoodman@paulweiss.com
bpbecker@paulweiss.com
espevack@paulweiss.com
Meredith Dearborn (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA 94105
Telephone: (646) 432-5100
Facsimile: (202) 330-5908
mdearnborn@paulweiss.com
Counsel for Google LLC
17
Back to 
