MOTION Leave to Take Certain Depositions Out of Time and Other Relief 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) Proposed Order)(Teitelbaum, Aaron)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
PLAINTIFFS’ MOTION FOR LEAVE TO DEPOSE
CERTAIN GOOGLE AND THIRD-PARTY WITNESSES
AFTER THE CLOSE OF FACT DISCOVERY
Plaintiffs, through their undersigned counsel, hereby respectfully move for leave to
depose certain specifically identified third-party witnesses, and one Google witness, after the
close of fact discovery on September 8, 2023, to accommodate the availability of these thirdparty witnesses and to prevent prejudice to Plaintiffs from allowing Google to defer scheduling
the deposition of a current Google witness, timely noticed during the period of coordinated
discovery, until after the fact discovery cutoff, thereby limiting the use of that deposition by
Plaintiffs. Plaintiffs do not seek an extension of any other deadlines in the case, and do not seek
an extension of the fact discovery cutoff in any other respect. For the reasons set forth below, the
parties have been unable to schedule these depositions prior to September 8. Plaintiffs
respectfully request permission for these depositions to be taken after September 8 but before
October 6, 2023, and further ask that these depositions be treated for all purposes as if they had
been taken before the fact discovery cutoff. (Doc. 94)
The parties had previously agreed in principle that if certain third parties were not
available to be deposed prior to the fact discovery cutoff, the parties would jointly seek
permission to take those depositions after the discovery cutoff on the general terms set forthPage 2 PageID#
herein. To that end, on Wednesday morning, August 23, Plaintiffs sent Google a draft motion to
that effect, along with a further revised draft motion later that day, reflecting the unavailability of
additional third-party witnesses. Plaintiffs requested the opportunity to meet and confer with
Google’s counsel on August 24 and August 25, as well, in order to be in a position to file this
motion in a timely fashion if it became necessary. Finally, at 3:28 pm on August 25, Google
agreed to meet and confer, indicating that its markup of Plaintiffs’ draft would follow shortly
thereafter. During a meet and confer that commenced at approximately 3:30pm, the parties had
productive discussions about these issues, but there was insufficient time before 5:00pm to
finalize an agreement that was acceptable to both sides. Plaintiffs received a counter-proposal
from Google at 4:06pm reflecting some potential areas of agreement and some potential areas of
disagreement, but given the late hour, there was insufficient time remaining to harmonize the
parties’ respective positions into one complete filing. The parties will continue to meet and
confer after the filing of this motion to attempt to narrow any remaining areas of disagreement
well in advance of the hearing on the motion, and will immediately advise this Court if any
further agreement is reached.
I.
Depositions of Third-Party Witnesses
For the reasons detailed below, despite diligent efforts, the parties have been unable to
secure deposition dates prior to September 8, 2023, for the following third-party witnesses: NBC/Comcast: On July 7, 2023, Plaintiffs noticed the third-party deposition of the
President and Chief Business Officer for Global Advertising & Partnerships at NBCUniversal.
The parties are still seeking to confirm deposition dates for three additional third-party
witnesses whose depositions were timely noticed during the discovery period. To the extent that
those depositions cannot be scheduled prior to September 8, 2023, due to witness unavailability,
Plaintiffs respectfully request that the Court allow those depositions, as well, to be taken after the
fact discovery cutoff, on the same terms outlined herein. Page 3 PageID#
Plaintiffs anticipate the witness will offer testimony concerning the use of ad tech tools by
NBCUniversal. The deposition was originally noticed for August 16, 2023, but counsel for the
third-party witness has informed the United States and Google that the witness is traveling or has
prescheduled meetings with executive management that preclude his ability to sit for deposition
until September 20. The witness’s counsel has indicated that the witness would be available to be
deposed on September 21 or 22, 2023.
Meta: On July 5, 2023, Google issued a Rule 30(b)(6) deposition notice to Meta
Platforms, Inc. (“Meta”) for a deposition to occur on August 29, 2023. Meta is a multinational
technology company that owns and operates its Family of Apps (e.g. Facebook, Instagram,
Messenger, and WhatsApp), among other offerings. On July 10, 2023, Plaintiffs cross-noticed
the deposition for the same date, with its own Rule 30(b)(6) notice. The parties have been
independently negotiating the scope and breadth of the 30(b)(6) topics with Meta’s counsel, who
has informed the parties that it intends to designate two witnesses to respond to the parties’ Rule
30(b)(6) topics. One witness, a Product Manager at Meta, is only available to sit for a deposition
after September 18, 2023, and the other witness, a VP of Global Marketing, has asked to be
deposed on September 28, 2023.
OpenX: On August 15, 2023, Plaintiffs noticed the deposition of the chief executive
officer of OpenX, a programmatic ad tech company and competitor to Google. On August 17,
2023, Google cross-noticed the deposition. The witness’s counsel has informed the parties that
for personal reasons, the witness is unavailable to sit for a deposition until the first week of
October.
Index Exchange: On August 17, 2023, Google noticed a Rule 30(b)(6) deposition of
Index Exchange, Inc. (“Index Exchange”), an advertising technology company that competes Page 4 PageID#
with Google. The next day, Plaintiffs cross-noticed the Rule 30(b)(6) deposition. Counsel for
Index Exchange has informed the parties that due to work and family commitments its Rule
30(b)(6) designee is unable to sit for a deposition until the week of September 24, 2023.
Mediavine: On August 18, 2023, Plaintiffs noticed a deposition of the co-founder of
Mediavine, a company that offers services to publishers in the ad tech industry. Google crossnoticed the deposition on the same day. The witness’s counsel has informed the parties that the
deponent is traveling and will not be available to sit for a deposition until September 22, 2023.
GroupM: On August 18, 2023, Plaintiffs issued a Rule 30(b)(6) deposition to GroupM,
a leading media investment company. Counsel for GroupM has informed the parties that, due to
previously arranged travel and personal commitments, GroupM’s designee is not available to be
deposed until September 25, 2023.
II.
Deposition of Google Witness Noticed by MDL Plaintiffs
As parties to the Order Regarding Coordination of Discovery (“Coordination Order”)
entered by this Court, ECF No. 251, the MDL Plaintiffs noticed the deposition of a current
Google employee who serves as the Engineering Director of the Google Ad Manager product,
the heart of Google’s ad technology suite that is central to this litigation. The deposition was
noticed during the period of Coordinated Discovery in this action. Par. 3 of Coordination Order.
The MDL Plaintiffs noticed the deposition on August 3, 2023, with well over a month remaining
in the fact discovery period in this case. While Plaintiffs in this action did not elect to use one of
their limited party-deposition slots to cross-notice the deposition, the Plaintiffs did so with the
reasonable expectation that because the deposition was duly noticed during the fact discovery
period of this case, Plaintiffs would be able to use the deposition as if it had been taken in this
case. Coordination Order Par. 3(f) (providing that “Transcripts and exhibits from depositions Page 5 PageID#
taken in a Coordinated Case during the Coordinated Discovery Period may be used in any
Coordinated Case for any purpose permissible under the Federal Rules of Evidence and the
Federal Rules of Civil Procedure (including impeachment at trial).”). For that reason, it would
prejudice Plaintiffs to allow Google to defer scheduling this deposition of a current Google
employee until after the fact discovery cutoff so that Plaintiffs would be unable to use the
deposition affirmatively in this case. Compare Coordination Order Par. 3(f) with Coordination
Order Par. 6(d) (providing that “depositions taken outside the Coordinated Discovery Period may
not be used in the Virginia Case for any purpose other than impeachment at trial”).
*
*
*
For the reasons set forth above, Plaintiffs request that the Court grant this motion for
leave to depose the third-party and Google witnesses referenced herein after the close of fact
discovery. See U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th
Cir. 2002) (“We afford substantial discretion to a district court in managing discovery and
review discovery rulings only for abuse of that discretion.”). Plaintiffs additionally request that
the Court allow the parties to use the depositions referenced herein for all purposes as if they had
occurred on or before September 8, 2023.
Dated: August 25, Respectfully submitted, Page 6 PageID#
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Dennis C. Barghaan, Jr.
DENNIS C. BARGHAAN, JR.
Deputy Chief, Civil Division
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: dennis.barghaan@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Jeffrey Grant Vernon
JEFFREY GRANT VERNON
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
/s/ Matthew E. Gold
MATTHEW E. GOLD
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
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA Telephone: (804) 692-Facsimile: (804) 786-Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
Attorneys for the United States
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 1 of 6 PageID# 5116
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
PLAINTIFFS’ MOTION FOR LEAVE TO DEPOSE
CERTAIN GOOGLE AND THIRD-PARTY WITNESSES
AFTER THE CLOSE OF FACT DISCOVERY
Plaintiffs, through their undersigned counsel, hereby respectfully move for leave to
depose certain specifically identified third-party witnesses, and one Google witness, after the
close of fact discovery on September 8, 2023, to accommodate the availability of these thirdparty witnesses and to prevent prejudice to Plaintiffs from allowing Google to defer scheduling
the deposition of a current Google witness, timely noticed during the period of coordinated
discovery, until after the fact discovery cutoff, thereby limiting the use of that deposition by
Plaintiffs. Plaintiffs do not seek an extension of any other deadlines in the case, and do not seek
an extension of the fact discovery cutoff in any other respect. For the reasons set forth below, the
parties have been unable to schedule these depositions prior to September 8. Plaintiffs
respectfully request permission for these depositions to be taken after September 8 but before
October 6, 2023, and further ask that these depositions be treated for all purposes as if they had
been taken before the fact discovery cutoff. (Doc. 94)
The parties had previously agreed in principle that if certain third parties were not
available to be deposed prior to the fact discovery cutoff, the parties would jointly seek
permission to take those depositions after the discovery cutoff on the general terms set forth
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 2 of 6 PageID# 5117
herein. To that end, on Wednesday morning, August 23, Plaintiffs sent Google a draft motion to
that effect, along with a further revised draft motion later that day, reflecting the unavailability of
additional third-party witnesses. Plaintiffs requested the opportunity to meet and confer with
Google’s counsel on August 24 and August 25, as well, in order to be in a position to file this
motion in a timely fashion if it became necessary. Finally, at 3:28 pm on August 25, Google
agreed to meet and confer, indicating that its markup of Plaintiffs’ draft would follow shortly
thereafter. During a meet and confer that commenced at approximately 3:30pm, the parties had
productive discussions about these issues, but there was insufficient time before 5:00pm to
finalize an agreement that was acceptable to both sides. Plaintiffs received a counter-proposal
from Google at 4:06pm reflecting some potential areas of agreement and some potential areas of
disagreement, but given the late hour, there was insufficient time remaining to harmonize the
parties’ respective positions into one complete filing. The parties will continue to meet and
confer after the filing of this motion to attempt to narrow any remaining areas of disagreement
well in advance of the hearing on the motion, and will immediately advise this Court if any
further agreement is reached.
I.
Depositions of Third-Party Witnesses
For the reasons detailed below, despite diligent efforts, the parties have been unable to
secure deposition dates prior to September 8, 2023, for the following third-party witnesses: 1
NBC/Comcast: On July 7, 2023, Plaintiffs noticed the third-party deposition of the
President and Chief Business Officer for Global Advertising & Partnerships at NBCUniversal.
1
The parties are still seeking to confirm deposition dates for three additional third-party
witnesses whose depositions were timely noticed during the discovery period. To the extent that
those depositions cannot be scheduled prior to September 8, 2023, due to witness unavailability,
Plaintiffs respectfully request that the Court allow those depositions, as well, to be taken after the
fact discovery cutoff, on the same terms outlined herein.
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 3 of 6 PageID# 5118
Plaintiffs anticipate the witness will offer testimony concerning the use of ad tech tools by
NBCUniversal. The deposition was originally noticed for August 16, 2023, but counsel for the
third-party witness has informed the United States and Google that the witness is traveling or has
prescheduled meetings with executive management that preclude his ability to sit for deposition
until September 20. The witness’s counsel has indicated that the witness would be available to be
deposed on September 21 or 22, 2023.
Meta: On July 5, 2023, Google issued a Rule 30(b)(6) deposition notice to Meta
Platforms, Inc. (“Meta”) for a deposition to occur on August 29, 2023. Meta is a multinational
technology company that owns and operates its Family of Apps (e.g. Facebook, Instagram,
Messenger, and WhatsApp), among other offerings. On July 10, 2023, Plaintiffs cross-noticed
the deposition for the same date, with its own Rule 30(b)(6) notice. The parties have been
independently negotiating the scope and breadth of the 30(b)(6) topics with Meta’s counsel, who
has informed the parties that it intends to designate two witnesses to respond to the parties’ Rule
30(b)(6) topics. One witness, a Product Manager at Meta, is only available to sit for a deposition
after September 18, 2023, and the other witness, a VP of Global Marketing, has asked to be
deposed on September 28, 2023.
OpenX: On August 15, 2023, Plaintiffs noticed the deposition of the chief executive
officer of OpenX, a programmatic ad tech company and competitor to Google. On August 17,
2023, Google cross-noticed the deposition. The witness’s counsel has informed the parties that
for personal reasons, the witness is unavailable to sit for a deposition until the first week of
October.
Index Exchange: On August 17, 2023, Google noticed a Rule 30(b)(6) deposition of
Index Exchange, Inc. (“Index Exchange”), an advertising technology company that competes
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 4 of 6 PageID# 5119
with Google. The next day, Plaintiffs cross-noticed the Rule 30(b)(6) deposition. Counsel for
Index Exchange has informed the parties that due to work and family commitments its Rule
30(b)(6) designee is unable to sit for a deposition until the week of September 24, 2023.
Mediavine: On August 18, 2023, Plaintiffs noticed a deposition of the co-founder of
Mediavine, a company that offers services to publishers in the ad tech industry. Google crossnoticed the deposition on the same day. The witness’s counsel has informed the parties that the
deponent is traveling and will not be available to sit for a deposition until September 22, 2023.
GroupM: On August 18, 2023, Plaintiffs issued a Rule 30(b)(6) deposition to GroupM,
a leading media investment company. Counsel for GroupM has informed the parties that, due to
previously arranged travel and personal commitments, GroupM’s designee is not available to be
deposed until September 25, 2023.
II.
Deposition of Google Witness Noticed by MDL Plaintiffs
As parties to the Order Regarding Coordination of Discovery (“Coordination Order”)
entered by this Court, ECF No. 251, the MDL Plaintiffs noticed the deposition of a current
Google employee who serves as the Engineering Director of the Google Ad Manager product,
the heart of Google’s ad technology suite that is central to this litigation. The deposition was
noticed during the period of Coordinated Discovery in this action. Par. 3 of Coordination Order.
The MDL Plaintiffs noticed the deposition on August 3, 2023, with well over a month remaining
in the fact discovery period in this case. While Plaintiffs in this action did not elect to use one of
their limited party-deposition slots to cross-notice the deposition, the Plaintiffs did so with the
reasonable expectation that because the deposition was duly noticed during the fact discovery
period of this case, Plaintiffs would be able to use the deposition as if it had been taken in this
case. Coordination Order Par. 3(f) (providing that “Transcripts and exhibits from depositions
4
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 5 of 6 PageID# 5120
taken in a Coordinated Case during the Coordinated Discovery Period may be used in any
Coordinated Case for any purpose permissible under the Federal Rules of Evidence and the
Federal Rules of Civil Procedure (including impeachment at trial).”). For that reason, it would
prejudice Plaintiffs to allow Google to defer scheduling this deposition of a current Google
employee until after the fact discovery cutoff so that Plaintiffs would be unable to use the
deposition affirmatively in this case. Compare Coordination Order Par. 3(f) with Coordination
Order Par. 6(d) (providing that “depositions taken outside the Coordinated Discovery Period may
not be used in the Virginia Case for any purpose other than impeachment at trial”).
*
*
*
For the reasons set forth above, Plaintiffs request that the Court grant this motion for
leave to depose the third-party and Google witnesses referenced herein after the close of fact
discovery. See U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th
Cir. 2002) (“We afford substantial discretion to a district court in managing discovery and
review discovery rulings only for abuse of that discretion.”). Plaintiffs additionally request that
the Court allow the parties to use the depositions referenced herein for all purposes as if they had
occurred on or before September 8, 2023.
Dated: August 25, 2023
Respectfully submitted,
5
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 340 Filed 08/25/23 Page 6 of 6 PageID# 5121
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Dennis C. Barghaan, Jr.
DENNIS C. BARGHAAN, JR.
Deputy Chief, Civil Division
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3891
Facsimile: (703) 299-3983
Email: dennis.barghaan@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Jeffrey Grant Vernon
JEFFREY GRANT VERNON
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
/s/ Matthew E. Gold
MATTHEW E. GOLD
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
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA 23219
Telephone: (804) 692-0485
Facsimile: (804) 786-0122
Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado, Connecticut, Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
Attorneys for the United States
6
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