Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
RESPONSE TO DEFENDANT’S MOTION TO SEAL [ECF NO. 308]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5 to seal four
deposition transcripts 1 attached as exhibits to Google’s Motion for In Camera Review, Dkt. Nos.
301, 303, on the grounds that the transcripts “contain information designated by Plaintiff the
United States as privileged, confidential, or highly confidential under the parties’ protective order
(Dkt. 203 ¶¶ 12, 20).” Memorandum of Law in Support of Defendant Google LLC’s Motion to
Seal, Dkt. No. 309, at 1; see also Defendant Google’s Motion to Seal, Dkt. No. 308.
Pursuant to the protective order, “[a]ll transcripts of depositions taken in the Action after
entry of this Order will be treated as Highly Confidential Information in their entirety for 45 days
after the date of the deposition, or until 5 days before trial, whichever date is earlier.” Dkt. No. ¶ 7(b). The protective order further provides that, “[w]ithin 45 days following the date of the
deposition, the deponent, whether a Non-Party or a Party, may designate, subject to the provisions
of this Order, Highly Confidential Information or Confidential Information any portion of the
deposition transcript, by page(s) and line(s), and any deposition exhibits provided by the deponent
The exhibits consist of the rough and final versions of the Rule 30(b)(1) depositions of
Christopher Karpenko on August 10, 2023, and Allen Owens on August 15, 2023. See Dkt. Nos.
301 and 303, Exs. 1, 3, and 2, 4, respectively. Effectively, then, the four exhibits amount to only
two transcripts.Page 2 PageID#
or the deponent’s employer or its affiliates, or containing the Highly Confidential Information or
Confidential Information of the deponent or the deponent’s employer or its affiliates (regardless of
who provided or produced the Document).” Id. Exhibits 1 and 3 to Google’s Motion for In
Camera Review (Karpenko deposition) are therefore designated as Highly Confidential
Information in their entirety by operation of the protective order through September 24, 2023 (days after August 10 deposition date). Exhibits 2 and 4 (Owens deposition) are so designated
through September 29, 2023 (45 days after August 15 deposition date).
The United States recognizes that the standard for sealing under Local Rule 5 and Fourth
Circuit Precedent is stringent and reflects a strong presumption in favor of public court
proceedings and court filings. Accordingly, the United States is not suggesting that the designation
of material by any party as confidential or highly confidential, without more, is a factor in whether
material should remain under seal. Rather, due to the length of the two transcripts contained in
Exhibits 1 through 4, and the need to review the transcripts carefully while making confidentiality
designations and to make a narrowly tailored determination as to whether any of the contents of
the transcripts should remain under seal, the United States requests that the Court defer ruling until
September 24, 2023 (as to Exhibits 1 and 3) and September 29, 2023( as to Exhibits 2 and 4), as to
what portion of the transcripts should remain under seal. Prior to those two dates, the United
States will submit a supplemental response to Google’s motion to seal, with an attachment
containing a proposed redacted transcript for inclusion on the public docket, as well as an
explanation for why any remaining redactions are appropriate under the standards of Local Rule and Fourth Circuit precedent.
Plaintiff therefore respectfully requests that the Court defer ruling on Google’s motion to
seal the deposition transcript exhibits at issue through September 24 (Exhibits 1 and 3) and Page 3 PageID#
September 29 (Exhibits 2 and 4), respectively, to allow the United States and the deponents the
time allowed by the protective order for reviewing and designating Highly Confidential
Information and Confidential Information contained in those depositions transcripts, and to
concurrently make determinations as to whether any material should be maintained under seal.
The United States respectfully requests that Exhibits 1-4 to Dkt. Nos. 301 and 303 remain
provisionally under seal until the United States has made its supplemental submissions.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court defer ruling on
Google’s motion to seal Exhibits 1-4 to Dkt. Nos. 301 and 303, and provide Plaintiff until
September 24, 2023, to provide public redacted versions of Exhibits 1 and 3, and until September
29, 2023, to provide public redacted versions of Exhibits 2 and 4. Page 4 PageID#
Dated: August 25, Respectfully submitted,
JESSICA D. ABER
United States Attorney
/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/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
/s/ Jimmy S. McBirney
JIMMY S. MCBIRNEY
United States Department of Justice
Antitrust Division
450 Fifth Street NW
Washington, DC Telephone: (202) 894-Fax: (202) 616-Email: Aaron.Teitelbaum@usdoj.gov
Attorneys for the United States
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 347 Filed 08/25/23 Page 1 of 4 PageID# 5148
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
RESPONSE TO DEFENDANT’S MOTION TO SEAL [ECF NO. 308]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5 to seal four
deposition transcripts 1 attached as exhibits to Google’s Motion for In Camera Review, Dkt. Nos.
301, 303, on the grounds that the transcripts “contain information designated by Plaintiff the
United States as privileged, confidential, or highly confidential under the parties’ protective order
(Dkt. 203 ¶¶ 12, 20).” Memorandum of Law in Support of Defendant Google LLC’s Motion to
Seal, Dkt. No. 309, at 1; see also Defendant Google’s Motion to Seal, Dkt. No. 308.
Pursuant to the protective order, “[a]ll transcripts of depositions taken in the Action after
entry of this Order will be treated as Highly Confidential Information in their entirety for 45 days
after the date of the deposition, or until 5 days before trial, whichever date is earlier.” Dkt. No. 203
¶ 7(b). The protective order further provides that, “[w]ithin 45 days following the date of the
deposition, the deponent, whether a Non-Party or a Party, may designate, subject to the provisions
of this Order, Highly Confidential Information or Confidential Information any portion of the
deposition transcript, by page(s) and line(s), and any deposition exhibits provided by the deponent
1
The exhibits consist of the rough and final versions of the Rule 30(b)(1) depositions of
Christopher Karpenko on August 10, 2023, and Allen Owens on August 15, 2023. See Dkt. Nos.
301 and 303, Exs. 1, 3, and 2, 4, respectively. Effectively, then, the four exhibits amount to only
two transcripts.
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 347 Filed 08/25/23 Page 2 of 4 PageID# 5149
or the deponent’s employer or its affiliates, or containing the Highly Confidential Information or
Confidential Information of the deponent or the deponent’s employer or its affiliates (regardless of
who provided or produced the Document).” Id. Exhibits 1 and 3 to Google’s Motion for In
Camera Review (Karpenko deposition) are therefore designated as Highly Confidential
Information in their entirety by operation of the protective order through September 24, 2023 (45
days after August 10 deposition date). Exhibits 2 and 4 (Owens deposition) are so designated
through September 29, 2023 (45 days after August 15 deposition date).
The United States recognizes that the standard for sealing under Local Rule 5 and Fourth
Circuit Precedent is stringent and reflects a strong presumption in favor of public court
proceedings and court filings. Accordingly, the United States is not suggesting that the designation
of material by any party as confidential or highly confidential, without more, is a factor in whether
material should remain under seal. Rather, due to the length of the two transcripts contained in
Exhibits 1 through 4, and the need to review the transcripts carefully while making confidentiality
designations and to make a narrowly tailored determination as to whether any of the contents of
the transcripts should remain under seal, the United States requests that the Court defer ruling until
September 24, 2023 (as to Exhibits 1 and 3) and September 29, 2023( as to Exhibits 2 and 4), as to
what portion of the transcripts should remain under seal. Prior to those two dates, the United
States will submit a supplemental response to Google’s motion to seal, with an attachment
containing a proposed redacted transcript for inclusion on the public docket, as well as an
explanation for why any remaining redactions are appropriate under the standards of Local Rule 5
and Fourth Circuit precedent.
Plaintiff therefore respectfully requests that the Court defer ruling on Google’s motion to
seal the deposition transcript exhibits at issue through September 24 (Exhibits 1 and 3) and
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 347 Filed 08/25/23 Page 3 of 4 PageID# 5150
September 29 (Exhibits 2 and 4), respectively, to allow the United States and the deponents the
time allowed by the protective order for reviewing and designating Highly Confidential
Information and Confidential Information contained in those depositions transcripts, and to
concurrently make determinations as to whether any material should be maintained under seal.
The United States respectfully requests that Exhibits 1-4 to Dkt. Nos. 301 and 303 remain
provisionally under seal until the United States has made its supplemental submissions.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court defer ruling on
Google’s motion to seal Exhibits 1-4 to Dkt. Nos. 301 and 303, and provide Plaintiff until
September 24, 2023, to provide public redacted versions of Exhibits 1 and 3, and until September
29, 2023, to provide public redacted versions of Exhibits 2 and 4.
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 347 Filed 08/25/23 Page 4 of 4 PageID# 5151
Dated: August 25, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
/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/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
/s/ Jimmy S. McBirney
JIMMY S. MCBIRNEY
United States Department of Justice
Antitrust Division
450 Fifth Street NW
Washington, DC 20530
Telephone: (202) 894-4266
Fax: (202) 616-8544
Email: Aaron.Teitelbaum@usdoj.gov
Attorneys for the United States
4
Back to 
