TRANSCRIPT of hearing held on 8-25-23, before Judge John F. Anderson, Court Reporter Stephanie Austin, Telephone number 571-298-1649. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 9/28/2023. Redacted Transcript Deadline set for 10/30/2023. Release of Transcript Restriction set for 11/27/2023.(Austin, Stephanie)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs, :
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-Friday, August 25, Alexandria, Virginia
Pages 1-
The above-entitled motions hearing was heard before
the Honorable John F. Anderson, United States Magistrate
Judge. This proceeding commenced at 11:01 a.m.
A P P E A R A N C E S:
FOR THE PLAINTIFFS:
MATTHEW TROY, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia (703) 299-
JULIA TARVER WOOD, ESQUIRE
KATHERINE CLEMONS, ESQUIRE
MICHAEL WOLIN, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. (202) 894-TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia (804) 786-
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 2 PageID#
A P P E A R A N C E S:
FOR THE DEFENDANT:
CRAIG REILLY, ESQUIRE
LAW OFFICE OF CRAIG C. REILLY
209 Madison Street
Suite Alexandria, Virginia (703) 549-
KAREN DUNN, ESQUIRE
ERICA SPEVACK, ESQUIRE
MARTHA GOODMAN, ESQUIRE
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, D.C. (202) 223-
ANDREW EWALT, ESQUIRE
ERIC MAHR, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. (202) 777-
COURT REPORTER:
STEPHANIE M. AUSTIN, RPR, CRR
Official Court Reporter
United States District Court
401 Courthouse Square
Alexandria, Virginia (571) 298-S.AustinReporting@gmail.com
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 3 PageID#
P R O C E E D I N G S
THE DEPUTY CLERK:
Calling Civil Action Matter
Number 23-cv-108, United States, et al. versus Google LLC.
THE COURT:
themselves, please.
MR. TROY:
Okay.
Counsel need to introduce
Good morning, Your Honor.
Matthew Troy, Assistant U.S. Attorney, United States
Attorney's Office.
MS. WOOD:
Good morning, Your Honor.
you.
Katherine Clemons, will be arguing today.
Julia Wood for the United States.
THE COURT:
Good to see
My colleague,
Clemons; is that correct?
to make sure I have the name right.
MR. HENRY:
I just want
Okay.
Good morning, Your Honor.
Ty Henry
from the Office of the Attorney General of Virginia on
behalf of the plaintiff states.
THE COURT:
Thank you.
MR. WOLIN:
And good morning, Your Honor.
Michael Wolin from the Antitrust Division on behalf of the
United States.
MR. REILLY:
Good morning, Your Honor.
Craig Reilly here for Google, together with my co-counsel,
Karen Dunn.
MS. DUNN:
THE COURT:
Good morning, Your Honor.
Good morning.
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MR. REILLY:
Weiss firm.
address the Court.
And Erica Spevack from the Paul,
Ms. Dunn, with the Court's permission, will
Also here in the well of the Court is Eric Mahr
and Andrew Ewalt, who the Court has met.
other attorney may be joining us, not to present, but to be
present, Martha Goodman.
Court's permission to allow her to take a seat at counsel
table when she arrives.
THE COURT:
MR. REILLY:
THE COURT:
MR. REILLY:
THE COURT:
We expect one
And I would just request the
Okay.
But we can proceed without her.
Okay.
Thank you, Your Honor.
Well, Ms. Dunn, let me have you come
up first.
You know, just a couple of things initially.
I
think at least multiple times I have suggested to the
parties that the expedited briefing schedule should be used
judicially.
highlighted that motions involving privilege issues are ones
that require extra time for the parties and for the Court.
I think in my comments in that regard, I
You filed yesterday, at 4:00, 200 pages in a reply
brief and exhibits on a motion that you filed last Friday
and want me to decide today.
decision to do this on an expedited briefing schedule with
I want to hear why it was a
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 5 PageID#
the understanding that you're going to end up filing a reply
brief with close to 200 pages at the end of the day
yesterday.
MS. DUNN:
Your Honor, first of all, we obviously
understand the Court's concern, and I want to assure the
Court that we take very seriously Your Honor's caution that
we only bring matters to this Court on an expedited basis
extremely judicially.
This issue of privilege goes really to the heart
of this case, to the heart of -- and to the heart of the
damages case the government has brought.
THE COURT:
In what way does it go to the heart of
the case?
have a damages case.
on December 22nd of last year or December 22nd of 2021,
either they do or don't have a damages case.
damages case?
MS. DUNN:
THE COURT:
MS. DUNN:
THE COURT:
So, Your Honor, there are three things
that I want to put --
Whether they started the investigation
So what do you mean by it goes to the heart of the
They either have a damages case, or they don't
Answer my question first -Yes, I will do that.
-- and then you can expand upon it all
you want.
MS. DUNN:
Your Honor, the first piece is that it
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goes to whether they have a damages case at all.
THE COURT:
Okay.
And what evidence relating to
communications between December 22nd and January 22nd goes
to whether they do or don't have a damages case?
MS. DUNN:
So that period of time was the only
period of time where they gathered factual information from
the agencies on whose behalf they now claim damages and
other agencies on whose behalf they do not claim damages.
THE COURT:
You don't think they've been trying to
get information from the agencies since January 22nd to the
present and aren't continuing to investigate and prepare
their damages case?
MS. DUNN:
Your Honor, we agree they're continuing
to prepare their damages case, and we are not seeking those
communications.
communications that we have seen that have already been
clawed back show the immediate reactions of these agencies
to the government's outreach.
THE COURT:
MS. DUNN:
But the communications -- first of all, the
Okay.
So --
Which, first of all, said they
didn't -THE COURT:
But, again, Ms. Dunn, let me just
understand this.
The damages case will be presented at a trial that
will happen next year.
You understand that.
Whether they
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had a weak damages case at one point and then they turned it
into a strong damages case as the case progresses will be
determined at the trial; not determined at the time the
complaint gets filed.
You said in your brief -- I mean you started,
factual information that's crucial to the defense of this
case.
What communications that happen between one month before the
lawsuit got filed, you know, isn't going to be what this
You will be defending this case at a trial next year.
case is tried on.
complete damages case.
This case is going to be tried on their
So, again, I'm trying to understand what is so
crucial and so important about this information for the
defendant.
MS. DUNN:
THE COURT:
MS. DUNN:
And, Your Honor, first of all,
if they don't have damages, they can't have a jury.
Yeah.
Okay.
So that needs to be decided before a
trial.
THE COURT:
And Judge Brinkema will do that, but
that issue isn't in front of me right now, and that -- once
that issue gets teed up, they'll be able to present what
evidence they have on their damages case.
MS. DUNN:
Second of all, Your Honor, there is the
issue of relevant market.
And when the government reached
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out to these agencies, their responses were often, we don't
understand what you're talking about, that's not how ad
purchasing works.
and we hope Your Honor will review them in camera if there's
any indecision -- will demonstrate that the market of the
actual only agencies that they are here representing don't
agree with their version of the market.
that's not how ad buying works, and so these documents --
And those documents, we feel confident --
THE COURT:
They say that
Well, that -- what their opinion --
MS. CLEMONS:
Your Honor, could I object to her
referring to documents that are privileged and have been
withheld or clawed back that counsel has seen prior to those
clawbacks?
THE COURT:
Well, whatever an employee of an
agency thinks is not going to be crucial to your case.
Whether a marketing person at one agency thinks something or
isn't familiar with the term or doesn't think that's right,
you know, that is one person's testimony about what he or
she thinks.
MS. DUNN:
Your Honor, these are the plaintiffs in
the case.
bringing the case.
30(b)(6) of the agency plaintiffs.
in this case.
These are the people on behalf of whom DOJ is
We are examining these witnesses as
They are the plaintiffs
And they don't --
THE COURT:
The plaintiff in this case is the
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United States.
MS. DUNN:
The United States has identified eight
agencies on behalf of whom it asserts that it's bringing
this case and bringing this case for damages.
30(b)(6) depositions are incredibly important.
Those
This is a case that -- where the government seeks
to reframe an entire industry that is a multibillion dollar
industry.
They've brought the case on behalf of eight
agencies.
The 30(b)(6) deponents, our testimony and
documents will undermine their market definition, which, in
a civil antitrust case, is a threshold issue before you even
get to trial.
THE COURT:
A very important issue, but not an
issue that someone who is boots-on-the-ground necessarily
understands.
that is legal, not necessarily something in the advertising
industry.
A legal issue of market share is something
So I'm just --
MS. DUNN:
Your Honor, respectfully, market share
is different than market definition and relevant market.
Market share is a totally different thing, and I agree,
experts can testify to market share.
Market definition, the standard for that is the
commercial reality of the marketplace, and the only people
in the commercial reality of the marketplace on the
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government's side are these agency buyers of ads and their
ad agencies.
are spending our very small number of depositions on these
agencies because they are going to define the commercial
reality that defines the relevant market.
These are crucial witnesses.
That's why we
Second of all, Your Honor, there's an issue of
whether they are direct purchasers, and that's an issue
under Illinois Brick.
they're direct purchasers, another reason that we need these
So if they can't establish that
documents, then --
THE COURT:
Well, why do you need these documents?
That's the part that I don't understand in your argument
both that you filed last Friday and that you filed last
night.
No one is saying that you can't get testimony
about how they buy their advertising.
through and you can say, you know, do you buy it directly?
Do you buy it through this entity?
What goes -- the whole process of how they purchase their
advertising is -- no one has said you can't get testimony
about that.
MS. DUNN:
That you can go
Or through that entity?
Your Honor, we commend to the Court the
Booz Allen case where that court looked at a very similar
issue.
defendant was entitled -- this was a case where the ATR
And it was said expressly by that Court that the
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Division was the plaintiff, they brought the same arguments
they're bringing here, and they lost because the defendant
is entitled to test that testimony.
from that --
THE COURT:
MS. DUNN:
THE COURT:
Where did it say that in the Booz
Allen case?
And we -- the documents
What?
Where did it say that in the Booz
Allen case that they get to test the testimony?
You're
talking about the decision by Judge Blake in Maryland?
MS. DUNN:
THE COURT:
Yes, Your Honor.
Okay.
So it discusses deliberative
process in the first three pages.
the attorney/client privilege.
work product doctrine where it finds that it is information
that's covered by the work product doctrine but in good
faith.
MS. DUNN:
It has two paragraphs on
It has two paragraphs on the
Your Honor, that's not -- no, this is
not the case.
First of all, just to take a step back, Your
Honor.
these documents privileged, and we are seeking to
discover --
The question is not -- the first question is, are
THE COURT:
minute.
Let's get into that argument in a
I'm just trying to understand what it is that you
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think you can't have that deals with, one, your damages
case.
process is, what the contractual relationship is, what their
involvement is.
it through various processes and procedures, or is that
their advertising agency making those decisions?
they're a direct purchaser or not.
That is, how do they buy their advertising, what the
Do they, you know, know that they're doing
So whether
MS. DUNN:
THE COURT:
You're getting all that information;
MS. DUNN:
Your Honor, in the Booz Allen case --
THE COURT:
Well, again, I'll let you make your
right?
argument.
questions.
Yes, Your Honor.
I just want to know -- I want you to answer my
MS. DUNN:
Because we're not getting this -- first
off, we're not getting this testimony because some amount of
it has been clawed back.
THE COURT:
That's Point 1.
Well, that's relating in the
communications.
MS. DUNN:
But the witnesses are being examined
about their purchases based on those documents.
documents that we --
THE COURT:
Those are
Why are you using those documents?
Why don't you just ask them about their purchases?
you buy advertising?
What is the contract?
How do
Who is it that
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you buy from?
look at a document that they've clawed back and say, well,
didn't you say this?
How do you know about certain things?
MS. DUNN:
Not
Didn't you say that?
Well, Courts, including the Booz Allen
Court and the FEC v. Christian Coalition Court in this
district recognized that witnesses, first of all, often need
the documents to refresh their recollection, to remember and
to respond to.
That's one thing.
And the second thing is that --
THE COURT:
MS. DUNN:
THE COURT:
Again, let me understand that.
Yeah.
You don't think that in a 30(b)(6)
deposition where the topic is how do you buy your
advertising, that they're not going to come in prepared to
talk about how they buy their advertising?
MS. DUNN:
We have been deposing these witnesses,
Your Honor, and it is true -- and it is in our briefs --
that when the witnesses are shown the documents, they recall
things that they didn't recall before they are shown the
documents.
That's the first thing.
The second thing is, we are limited -- and this
has been recognized also in Booz Allen and other cases -- in
the number of depositions that we can take.
take 30(b)(6) depositions of these agency plaintiffs, and we
are entitled to test their testimony.
So we need to
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The other thing that's happening is now that
we're -- we've deposed four of these witnesses, the
witnesses have started to testify differently because
they've been prepared for the questions that we're going to
ask.
product, fact -- and having -- not under the influence of
preparing testimony for a litigation to test the testimony
that we're getting.
documents where something is written on a page.
So we need the documents that are prefiling, fact work
There's really no substitute for
When you're
in trial and you're examining a witness, they often are
hemmed in by the words they wrote in the document.
and that has gone to the substantial need query that Courts
have looked at.
THE COURT:
So --
So it's crucial to your case whether
they know that a meeting was on January 3rd or January 8th?
They know they had a meeting, they don't remember the
particular date, but you need to have the documents so they
can say whether it was on the 3rd or the 8th, and that's
crucial to your case?
MS. DUNN:
Your Honor, the testimony and the
documents, we believe, go well beyond the question of what's
the date.
where they purchased it, what the market is that they
operate in.
It's how they purchased, what they purchased,
All of -- this is going to be -- a key issue in
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this case is how are these purchasers purchasing their ads.
They are going to be -- there's two kinds of witnesses who
understand the commercial realities.
parties who were also part of the government's investigation
and investigative file, and they've turned over those
documents.
One are the third
The other are these agencies where those documents
they concede are part of the investigative file or part of
their investigation.
We are entitled to that under statute
and under the Antitrust Division's manual, and those have
been withheld improperly under privilege.
So the first question is, are they privileged.
And what the government is essentially saying is, every time
an Antitrust Division lawyer reaches out and communicates
with a federal employee -- lawyer or non-lawyer agency -- to
investigate to gather facts, and then that person, even
though they're not a client, they're not a party at the
time, if that person reaches out to other people, their
contractors -- and in this case, the ad agencies -- who the
department has insisted are independent, they have no
control over them, that's privileged, too.
That would make any time the government reached
out to any government employee and that employee reached out
to any other contractor all within the universe of
privilege, which is directly contrary to how the Fourth
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Circuit directs that we treat the privilege.
THE COURT:
All right.
Let's step back.
January 24th, 2023, someone from the Department of
Justice writes to a federal agency and says I want
information, and they then reach out to a representative or
their contractor to get information.
You're saying that wouldn't be covered by a
privilege?
MS. DUNN:
THE COURT:
You're speaking about after filing?
Right.
I'm just trying to figure out
what -- why, in your mind, is the magic date the filing of
the complaint.
MS. DUNN:
It's not just in my mind, Your Honor.
These are parts of the investigative file that DOJ collects,
and to which we are entitled pursuant to statute and
pursuant to the DOJ manual.
communications from its investigative file, and they say in
the Wolin declaration, which are their evidence, it's their
burden, they say that this is communications for
information-gathering purposes about digital advertising
purchases by federal agencies to aid in the Antitrust
Division's investigation.
DOJ acknowledges that these are
So that is only what we're asking for.
We're not
asking for any opinion work product, any attorney mental
impressions.
And this is -- the entire point of work
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product is to provide a zone of privacy for an attorney.
by the time that a suit is brought, there is a distinction
made.
distinction in the Booz Allen case.
reading what the Court said in that case.
So
And, actually, the government itself made this
THE COURT:
And I think it is worth
I have it in front of me.
Just tell
me where you are.
MS. DUNN:
THE COURT:
It's at page 3.
Where they decided at some point to
not turn it into a deliberative process or not call it
attorney work product, but they called it not
attorney/client privilege but work product; is that what
you're talking about?
MS. DUNN:
Your Honor, not exactly.
At first what the government did is it said that
these were privileged documents prefiling of the complaint
because the NSA was DOJ's client.
first and second privilege log, it changed its view, which
the Court agreed with, and then also took this position in
the hearing.
the same Antitrust Division.
government drew a line between the DOJ's initial inquiries
with the agency where DOJ first played the role of an
investigator and the time when the DOJ decided to file the
present lawsuit where --
Then after -- between the
This is, by the way, only a year ago.
It's
And it said that the
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THE COURT:
MS. DUNN:
THE COURT:
On December 22nd, I have an affidavit saying a
Decided to file --- the DOJ became counsel.
Decided to file the present lawsuit.
draft complaint had been filed, prepared.
MS. DUNN:
Your Honor, if that were the case and
that is what applied, it would apply to all of the
communications in the investigative file after that date and
before the filing.
But it doesn't.
And DOJ has turned
those over.
material until the complaint was filed.
that line.
accepted here, it is going to apply -- it would apply
equally to all of these third-party communications that they
had -- that they already turned over and that they're
required to turn over.
It kept turning over investigative file
It, itself, drew
And if the DOJ's position about privilege is
There's no distinction between the rest of the
material in the investigative file where the government is
reaching out to get information from third parties than
there is when they reached out to get information from the
agencies.
And actually at the time of filing, Your Honor,
they weren't even claiming damages for seven out of the
eight agencies.
asking for the facts to which we are entitled that are not
So that's all later, too.
We are only
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privileged, and documents that, if Your Honor reviews them
in camera, we feel very confident you will see that they
just have to do with the facts; the how, what, when and
where of the agencies' purchases.
And I -- Your Honor, I completely understand that
these are complicated issues and we are on an expedited
schedule, but this is a crucially important case, and
this -- these communications with -- they are the plaintiffs
in the case.
They are the people -- they are the entities
claiming damages here.
only evidence that the government is going to put forward to
support its damages and that we have to test about the
market that exists in this case.
to Your Honor if it wasn't crucially important.
THE COURT:
So -- and they are -- they are the
So we wouldn't bring this
Well, again, circle back around to
what evidence about them purchasing advertising do you think
you're not going to have?
that it's done, the amount that's been purchased, how it was
used, all of that, the substantive information about how
they actually buy it.
that you think you would get in these, you know -- you know,
we're looking for information, can you help me gather some
information.
MS. DUNN:
That is, the contracts, the way
What is it that you're not getting
Your Honor, there -- so, first of all,
we -- there are documents that we cannot see, so I can't
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tell you what's in the documents that we can't see, but --
THE COURT:
What is it -- what is it you think
might be there other than --
MS. DUNN:
THE COURT:
Yes.
-- your knowing -- and, again, you
know, this is --
MS. DUNN:
Yes.
So, Your Honor, there is an
analogous document that we've pointed Your Honor to, and
that is between one of the agency's OIGs and --
THE COURT:
MS. DUNN:
that.
I read it.
Okay.
So we expect to see more of
What happened in that case --
THE COURT:
Again, you're not answering my
question.
Whether they understand certain things, whether,
you know, this term is familiar or not familiar.
you a very specific question, and if you don't understand
it --
I'm asking
MS. DUNN:
I understand it, Your Honor.
The government puts forward a market for open web
display advertising.
When it went out to these third
parties, they did not understand what that meant.
meant that the people on behalf of -- on whose behalf the
suit is being brought, and some of the only witnesses that
can testify to the commercial realities of the market, did
not understand the DOJ's relevant market, they didn't
And that
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 21 PageID#
understand what they were talking about.
about buying from third parties, they didn't know what that
was.
agencies thought about the market much more broadly.
thought about the market as including Facebook and TikTok
and Amazon and all of the things that the government
gerrymanders out of its market.
When they talked
And also you're going to find that the -- that the
They
That's one thing.
The second thing that we expect to find is
information directly relevant to whether the agencies are
direct purchasers.
that we can take in this case.
to apply, not just to these agencies, but also to all the
many third parties.
substantial need have found that that is -- even a much
greater number of depositions available have been too
limited to get the information.
And we have very limited depositions
Non-party depositions have
And other courts that have looked at
But the truth is that, you know, we are seeing the
witnesses evolve their testimony now after preparation with
DOJ.
to the information that they provided when they were first
asked these questions about how they buy and what the market
is and the whole underpinning of this entire case is about
how entities buy advertising.
evidence to us or else we would not be here.
And the documents that pin these agencies in to the --
That is extremely valuable
We are going to spend an enormous amount of time,
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both at summary judgment and perhaps at trial, on this issue
of relevant market.
It's the threshold issue and the core to every civil
antitrust case.
clawbacks of testimony on this topic and documents on these
topics, and not only the immediate testimony of the federal
agency advertisers, the communications between the agency
advertisers and the ad agencies.
It just couldn't be more important.
And we -- the testimony -- there's been
These are ad agencies that the Department of
Justice has insisted this entire time they have no control
over.
agency advertiser, who's in no client relationship with the
Justice Department at this time, only gathering facts, not
opinion, reaching out to the agencies with whom they have
the existing contract with?
be privileged.
How can there be any privilege between the federal
THE COURT:
MS. DUNN:
THE COURT:
There's no way that that could
Why wouldn't that be work product?
Well, first of all -All right.
Let me put it in the
scenario of on January 28th of this year, an agency asked
for their advertiser to prepare information for them for the
purposes of this lawsuit at the direction of their lawyer,
and they aid them in preparing information and providing it
to their lawyer, do you say that isn't work product?
MS. DUNN:
I think it may be work product if it
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 23 PageID#
was at the direction of counsel in anticipation of a
litigation; however --
THE COURT:
All right.
Well, let's just assume
the date that I said, January 28th, was after this lawsuit
got filed.
MS. DUNN:
Right.
THE COURT:
MS. DUNN:
That's why I picked that date.
I think there would still be a close
call about the agency relationship in that circumstance.
And that is the same conversation that happens in cases
where a lawyer directly hires a PR firm or an investigator
or an accountant.
I think in this instance, it's actually not a
close call at all.
expressly testified that they understood that the Department
of Justice was gathering information, that they didn't
anticipate litigation, that the time when they began to
anticipate litigation was when the complaint was filed.
The witnesses in this case have
One of them said this was a standard request for
information; another said it was a routine request for
information.
which is what we have to go on, have uniformly testified --
And the witnesses that have testified so far,
THE COURT:
Let me -- we're not going to have any
note passing anymore.
MS. DUNN:
It's very distracting.
I'm sorry.
Apologies, Your Honor.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 24 PageID#
THE COURT:
MS. DUNN:
Five times is enough.
The agencies have uniformly
testified -- the agencies have uniformly testified that they
did not anticipate litigation at this time, that this was
purely investigatory, that's how they regarded it, and
there's no contrary evidence in the record.
The only -- now, first of all, it is their burden,
as I'm sure we can all agree, and so they have put forward
the Wolin declaration.
Now, the Wolin declaration is one of the best
documents I think for Google in this record, and that's for
what it doesn't say.
were seeking legal advice.
information is opinion or mental impressions.
says it's factual information-gathering.
that any information was conveyed to the agencies such that
they would anticipate litigation.
Mr. Wolin directed the agencies.
It doesn't say that these agencies
It doesn't say that the
In fact, it
And it doesn't say
And it doesn't say that
Instead what it says is it says what the agencies
did were communications made in direct response to my
questions.
standard of privilege.
employee reaches out, somebody does something in response to
that request for information, and that all of a sudden is
within the very narrow zone of privacy that the privilege
Now, there is no direct response to my questions
It cannot be that a government DOJ
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 25 PageID#
cases recognize.
The entire point of this is to protect lawyers who
go out and hire agents to do part of their litigation work.
And that on the record we have, which is what the Court must
consider, and it's their burden.
We have agencies that say DOJ was not my lawyer, I
was not seeking legal advice, I didn't anticipate
litigation, the first time I knew about a complaint was when
it was filed, I didn't know I would be a witness in this
case and have no knowledge of being directed.
They say it
was a standard request for information and a routine request
for information.
None of that is privileged, Your Honor.
And I want to be very -- I want to be --
THE COURT:
MS. DUNN:
THE COURT:
Let me go back to that.
Yeah.
At least the testimony that I have
seen is this wasn't a standard request for information, I
have never gotten a request for that kind of information,
I've never dealt with them in the past.
testimony?
Is there contrary
MS. DUNN:
Yes, Your Honor, there is.
This is on pages 9 and 10 of our brief -- of our
reply brief, and on pages 10 and 11 of our reply brief.
I have the pages in the depositions marked here.
the cites for you, but they're in the brief.
And
I can pull
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 26 PageID#
THE COURT:
I'm looking -- I mean, I read the
depositions that you provided me last Friday.
MS. DUNN:
THE COURT:
Okay.
And the ones that were there last
Friday said, out of the blue, don't have dealings with them,
don't know about them, you know, this was not something that
I ordinarily do, this was unusual.
So you're saying that's --
MS. DUNN:
I'm saying that two out of the four
witnesses testified.
standard request; the other uses the phrase "routine request
for information."
One said it was -- they felt it was a
But also the point is, they weren't anticipating
litigation; it was a request from one agency to another.
Whether or not they hear from DOJ regularly, all of these
witnesses have said they weren't anticipating litigation.
And they've all said that -- they've uniformly testified
they didn't think they were harmed by Google.
circumstance where in order to create an attorney/client
privileged relationship, the client has to be seeking legal
advice.
with a lawyer for the purpose of seeking legal advice and to
know that they are seeking to be a client.
This is not a
They have to be communicating in a confidential way
THE COURT:
Or involved in a legal proceeding.
doesn't necessarily have to be legal advice.
It
Information
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 27 PageID#
relating to the legal proceedings.
MS. DUNN:
Right.
But the client has -- it's the
client's privilege, and they have to show that they are the
client, and they have to be seeking information from the
lawyer.
here.
That's the exact opposite of what was happening
These are the same kinds of communications as when
the government went out to myriad third parties, who we also
are deposing, as they did here.
And, Your Honor, just to be clear, the government
didn't make this outreach to these agencies, who are the
plaintiffs in their case and relevant for market and
damages, until that three- to four-week period from December
to January.
So we're just seeking the investigative material
to which we're entitled, and that's the same as in the rest
of the investigative file.
know, if they had reached out to the agencies before to
gather information, we would want that, too.
completely understand that at the time after the complaint
is filed, everybody should anticipate litigation, there's
been a publicly-filed complaint, and that is what the
witnesses testified to.
It's not -- we're not -- you
But we
I think if you look, Your Honor, at the cases
on -- that focus on the idea of work product, this is not
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 28 PageID#
really a close call.
the attorney has gone out to hire a PR firm or something
like this, or an accountant, or somebody to assist where
there's a direct retention.
third party who has a preexisting relationship to do some
sort of contracting work providing facts, which is what we
have here.
to that.
Like, the challenging cases are where
It's not a case where there's a
And we have cases that are cited in the brief as
But the DOJ's words speak the best themselves,
which is they have sent us correspondence saying these
agencies are independent.
They are not under our control.
We need Rule 45 subpoenas.
So it can't possibly be that
this is a situation akin to the harder cases where the
lawyer directly goes out and hires somebody to do their
legal work for them.
the facts are accessible to the other party, and what is
redacted is the opinion work product.
And even in those cases, the fact --
We have no problem with any redaction of mental
impressions.
is not a circumstance where the agencies are making
conclusions and recommendations for the legal work; they're
just providing information.
We do not think there will be any because this
And, Your Honor, I'm concerned that I haven't
convinced you that we need this information, and we really,
Well -Yeah.
We really, really do.
we're entitled to it anyway.
THE COURT:
Well, you're the one who's saying it's
crucial.
And, again, I am, again, at a loss, honestly, as
to the substantive information about how they purchase their
advertising, whether they're a direct purchaser, what it is
and those kinds of things.
That --
MS. DUNN:
This is the -- sorry.
THE COURT:
No, I'll let you go.
you want.
Interrupt me all
MS. DUNN:
couldn't hear.
No.
No.
No.
I couldn't hear.
THE COURT:
I just can't -- I just
Go ahead.
The information concerning how they
purchased their advertising, whether it's directly or
through an agency, how that is done and how the process is
done to get whatever advertising that they do, that's all
information that is discoverable, and you should be getting
that.
information, that is substantive information about how they
get their advertising, then you should be coming in on a
motion to compel that.
And whether -- if you're not getting that kind of
The question is, you know, whether you get these
documents about some investigative information that they
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 30 PageID#
then determine whether to bring a claim or not.
they have a claim or not, you'll be able to litigate that
when you get the substantive information about how they get
their advertising, what kind of advertising they get, the
process that's been followed.
The same goes with the defamation.
And whether
You know, that
is going to be a legal issue that one has to get determined.
And what one person's agency thinks -- you know, you're
going to have experts; they're going to have experts.
You
know people don't understand this; they don't understand
that.
Somebody's going to have to make a decision.
But, again, I'm at a loss as to how you think that
is so crucial to your case.
MS. DUNN:
Your Honor, the information that was
gathered -- which, again, is not privileged, and so we are
entitled to it, regardless of substantial need in the first
instance -- is what the agencies said when they were asked
for facts in the first instance.
also is their communications with their ad agencies.
that has a probative value that is unlike after-the-fact
testimony.
And when it's -- and it
So
What they said initially to the DOJ about the
market, what they said in thoughtful responses about how
they purchase their ads and what markets they operate in,
and then the conversations they had with their own
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 31 PageID#
contractors with whom they work all the time about the ad
buying.
factual information to which we are entitled.
believe it is important for the following reasons, which I
will re-enumerate, because I believe that they are so
important.
That is what we expect to find, and it is only
And we
One is, market definition isn't just a legal
concept.
The legal standard is commercial realities.
So
the commercial realities that the government has injected in
this case is how these agencies are buying their ads and
what they consider to be the market and their interactions
with their advertisers.
And, by the way, we don't have enough depositions
to depose all those advertisers or all the agencies that the
government reached out to.
if we use them all for that.
the relevant market, and these are the parties that the
government has inserted as the commercial reality.
the first thing.
We just don't have enough, even
Okay.
So that is going to be
That's
The second thing is, if they don't -- if they are
not direct purchasers, there's no damages case as a legal
matter.
in what they provided to the government in the investigatory
stage.
purchaser in that circumstance; we don't want opinions.
And that information we expect will also be found
Only facts.
We only want to know who's the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-
And Page 32 PageID#
those are the kinds of questions we expect that they were
asked.
So it's possible that the government will have no
damages case, and on this basis alone, no entitlement to a
jury trial.
So we can't get to trial and test that.
THE COURT:
Okay.
Why don't you get those facts
through the normal course of discovery?
still haven't answered that question, I don't think --
MS. DUNN:
THE COURT:
And, again, you
Well --- whether they are or aren't a direct
purchaser.
MS. DUNN:
I will tell you, Your Honor, first of
all, we are trying to get those facts through the normal
course of discovery.
of discovery in every case like this, the government hands
over its investigative file.
discovery, and the government, as in the FEC v. Christian
Coalition has cited, the government is not allowed to take
advantage of privilege to keep back documents that would
ordinarily be given in discovery.
unfair advantage, and the cases say that that is not okay.
So, first of all, we -- this is the ordinary course of
discovery.
But, first of all, the normal course
That is the normal course of
That gives the government
Second of all, we're taking depositions, but
testimony is being clawed back.
So anything that was told
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 33 PageID#
to the government in this investigative stage, just the
facts, is not available to us, and that would be the normal
course of discovery.
Now, we can ask these questions, but as we point
out in our brief, sometimes the witnesses don't remember.
The documents, as recognized by the Booz Allen, other
courts, are important to refresh the recollections and to
remind, and also, frankly, Your Honor, for impeachment
purposes, because now the witnesses are being better
coached.
the answers have started to change.
They know what questions we're going to ask, and
So we need the documents in order to establish the
testimony and test the testimony that's going to go to the
very threshold issues of relevant market, of direct
purchasers and the not insignificant issue of damages and
whether they even exist and whether there should even be a
trial with a jury impaneled.
before the trial.
All of that has to happen
And so I desperately want to convince you of this
because I know how valuable this evidence would be.
And I
also think if Your Honor is unsure, we can submit to you in
camera the documents.
inquiry -- if I haven't convinced you, I don't even think
you get to the inquiry of how crucial it is, even though it
is, and we're so limited in our discovery if this is not
But I don't even think you get to the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 34 PageID#
privileged.
And, at this time, the agencies themselves
disclaim any attorney/client relationship.
They disclaim
knowledge of anticipation of litigation.
harm.
acts on behalf of Google.
is not a case where this extends the lawyer's zone of
privacy.
They disclaim any
They say that they don't know of any anticompetitive
They don't think that.
So this
And I will remind everybody that, you know, it is
their burden to prove, and so in many cases in these
depositions, they instructed witnesses not to answer
questions that would have laid a predicate for privilege.
Were you directed by the DOJ?
the DOJ?
Did you get instructions from
Instruct not to answer.
And so all the Court really has, as far as
evidence -- we have, on our part, the testimony of the
witnesses that disclaim these bases of privilege, but what
the Court has is the Wolin declaration.
So with respect to the first category we're asking
for, which is communications between the DOJ and the FAA
lawyers and non-lawyers, what the Wolin declaration says is
that this is information for information-gathering purposes
for the investigation.
does not say mental impressions.
privileged.
Okay.
It does not say opinion, it
So Category 1 is not
It's the same as what has been handed over for
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 35 PageID#
any third party in the investigative file which was handed
over until the date of filing.
That's Category 1.
Category 2, what the Wolin declaration offers the
Court is the coms made in direct response to my questions
standard.
witnesses were instructed not to answer that question.
Note, does not say he directed their work.
And
There is no case that is findable by the DOJ where
the work product doctrine is used to shield fact-gathering
efforts from third parties not retained by counsel, much
less a third party previously retained not by counsel
expressly for a different non-litigation purpose.
cannot find a case that --
THE COURT:
You
That was a lot of -- go through that
one more time so I make sure I understand what your point
is.
MS. DUNN:
Okay.
Well, first of all, Your Honor,
I want to make sure, because there are three categories of
documents.
THE COURT:
MS. DUNN:
Right.
On Category 1, which is the
communications between DOJ Antitrust Division and FAA
lawyers and non-lawyers.
we're saying is, we only seek the prefiling fact-gathering
communications; not the kinds of material that work product
is meant to protect like opinion or mental impressions.
That's Category 1.
So there, what
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-
If Page 36 PageID#
there's any, it can be redacted.
And DOJ concedes two things that is relevant to
the first category.
its investigative file.
they concede that.
the Antitrust Manual say we're entitled to this -- to the
stuff in that file.
Okay.
Thing 1 is, the coms are from
That's their opposition, page 3,
And the Antitrust Civil Process Act and
Okay.
The second concession that they make -- this is
Wolin paragraph 8 -- is that these coms are for
information-gathering purposes about digital advertising
purchases by federal agencies to aid in the Antitrust
Division's investigation.
THE COURT:
Okay.
So that's work product, to aid in
their investigation as to whether to bring a lawsuit.
That's the DOJ's -- they are getting information to make
considerations as to whether to file the lawsuit that
they've drafted.
MS. DUNN:
Your Honor, respectfully, it is not
work product --
THE COURT:
Why not?
MS. DUNN:
It is work product when the preparer of the
-- and I'll tell you why.
work -- so if you think about hiring like an accountant or a
PR agency, the preparer of the work has to face a claim or
potential claim.
So the preparer has to anticipate
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 37 PageID#
litigation.
agencies have universally testified they are not
anticipating litigation at this stage.
evidence that the DOJ told them that we're anticipating
litigation.
theory was right and that was work product, it would extend
to the entire investigative file, and there wouldn't be
statutes and manuals that say we can have it.
work product.
And, here, that is not the case.
Here, the
And there's no
These are factual inquiries.
And if the DOJ's
It is not
Work product is when a lawyer -- and these are
closed cases.
accountant, some agent to go do something for them, and that
person gathers information, and sometimes even then the
facts they've gathered are discoverable.
is, you -- they are the preparer -- and this is in RLI and
National Union and all of the cases on this -- that the
preparer has to face a claim or potential claim.
When a lawyer hires a PR person, an
And, here, that
Now, the main point I'm making on this, Your
Honor, is that these cases are just an ill fit.
Like, the
investigatory stage is not the stage when the agencies are
being deployed as if they're agents of the DOJ lawyers.
That is not what's going on.
the coms, you would see that they're just saying, hey, we're
looking for information.
going to litigate, do our work for us and report back.
And I think if you reviewed
They're not saying, please, we're
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 38 PageID#
That's not -- that was not the purpose, and that's not the
relationship between the preparer of information and the
Antitrust Division.
And, in any event, there's -- all the evidence in
the record is to the contrary, that they're not anticipating
litigation at this stage.
division expressly made this exact distinction in Booz Allen
where they say there's an investigative stage and a
post-filing stage.
And the same Justice Department
It was exactly the same thing.
And if
you look at the Judge's conclusions on work product in that
case, as I know you have, she doesn't take a long time with
them.
analog -- was seeking only the fact work product.
fact work product.
She says the other party -- in this case the Google
Only the
And so that's similar here.
THE COURT:
I mean, in that case, the Judge found
it was work product and that there was a substantial need
for it.
MS. DUNN:
Your Honor.
product.
Actually, in that case -- I apologize,
In that case, she did not find it was work
What she did was under -- let's look -THE COURT:
"The defendants have established a
substantial need and inability to secure factual information
about alternative needs.
work product."
MS. DUNN:
They do not need to get opinion or
She doesn't really decide.
She
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 39 PageID#
assumes -- at the beginning of the case, she assumes without
deciding about deliberative process and goes through the
substantial need analysis, which is very similar to this
case.
proceeds at breakneck pace.
DOJ a party.
It's an issue of relevant market.
The litigation
Oh, the other factor is, is the
Right.
And then -- and so she concludes in the context of
the deliberative process privilege that there's substantial
need.
And so by the time she gets to work product, all she
really says is that the defendants do not seek opinion work
product and do not challenge any redactions for mental
impressions.
questionable for mental impressions in camera.
And then she offers to look at anything
There's another case, Your Honor, I just want to
flag for Your Honor on the same topic, because a lot of this
I think does hinge on this distinction of opinion versus
fact.
In Re: Lumber Liquidators, in that case, there
were special tests performed during an investigation by
previously hired agent, and even those did not qualify as
opinion; those still qualified as facts.
even asking for recommendations or opinions; we're just
asking for the factual information that the agencies gave.
So that's Category 1, and I'm glad, actually, to
Here, we're not
have looked at the Booz Allen case on substantial need,
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 40 PageID#
because I think this issue of the government being a party
is obviously present here and relevant to that -- to that
calculus.
need -- she goes into detail about why you would want
documents for use in depositions.
The same with the limited depositions and the
That's Category 1.
Category 2 is communications between the FAAs --
oh, I should also say, Category 1 includes communications
with FAAs and non-FAAs.
end up being damages-seekers or parties in this case.
They're agencies that don't even
they're just third parties.
obviously very hard to distinguish that from any third
party.
So
So that seems -- you know,
Category 2 is communications between the FAAs and
their ad agencies.
Now, this is -- this is where I was
saying that there's no case where the work product doctrine
will be used to shield a third party's fact-gathering
efforts that are not retained by counsel, and when the agent
is previously retained not by counsel for an entirely other
purpose.
agencies are not under their control, they're independent,
and that the only contract that exists is for digital ad
purchases.
And the DOJ has communicated to us that these ad
So this -- you couldn't -- they have not cited
any, and I can't actually imagine a case where an agency
previously hired for a non-litigation purpose, not by a
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 41 PageID#
lawyer, not doing anything having to do with the litigation
that's gathering facts at an agency's request, somehow that
ends up being privileged.
THE COURT:
Well, privileged or protected under
the work product doctrine.
cases --
MS. DUNN:
THE COURT:
MS. DUNN:
That's the issue, and there are
Your Honor --- that do that.
-- I'm unaware of any case.
I mean, I
would be happy to discuss any case, but I have not seen any
case.
very good correction; I apologize -- where there's an agency
previously hired for a non-litigation purpose by a
non-lawyer that's just gathering facts, not opinions and not
recommendations, and that that is somehow attorney work
product within the zone of privacy.
layer on that -- this investigative phase and the fact that,
you know, the investigative file is required to be turned
over, I don't -- it's very hard to imagine that that could
be work product.
And I am talking about work product -- that was a
And I think when you
The third category is a small category, it's
interagency communications with no lawyer on them.
So we
are not seeking any interagency communications between the
agency lawyer and the agency employees.
obviously be privileged.
Those would
But, here, there are some
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 42 PageID#
communications which are coms between agency non-lawyers
that would not be privileged.
And that's not a huge number.
For both Category 2 and Category 3, the record is
the Wolin declaration where he says coms made in direct
response to my questions.
concept of work product and privilege that somehow the DOJ
can call -- the Antitrust Division can call somebody up, ask
for facts, and then anything that that triggers -- if that
triggers a call to a contractor to get facts, that that is
And this is a very sweeping
within the zone of privacy of the attorney work product,
especially in the Fourth Circuit where every case -- as I'm
sure Your Honor is aware, as every case stresses how the
privilege is narrowly construed and limitedly recognized.
And so this is -- you know, it's sort of like a
seriatim theory of privilege where if they ask for facts in
their investigative stage, don't say, you know, not in
anticipation of litigation from the point of view of the
preparer, that those communications and then every
communication down the line ends up being privileged.
I don't know if Your Honor is interested in
hearing about the deliberative process privilege, but the
cases on that are Ethyl Corp. v. EPA, Moore-McCormack Lines,
both Fourth Circuit cases.
within the deliberative process, it really -- the
deliberative process privilege is really concerned with the
And those make clear that to be
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 43 PageID#
exercise of policy discretion.
that the Booz Allen Court confronted.
an entire balancing test that the government just entirely
ignores.
the need for documents in a deposition.
of their brief.
that the materials at issue have to bear on formulation or
exercise of policy-oriented judgment.
how the deliberative process privilege is generally
And this is also an issue
And she went through
They say that the Booz Allen case is only about
That's Footnote
But she cites to Ethyl Corp., which says
And that's, you know,
understood.
THE COURT:
MS. DUNN:
Okay.
Anything else?
Not if Your Honor does not have any
questions.
enumerate for Your Honor at some point what we are seeking.
We have --
I also do not know if it is helpful for me to
THE COURT:
Well, you've said that in your briefs;
right?
MS. DUNN:
Yeah.
Thank you.
THE COURT:
MS. CLEMONS:
The Department of Justice is empowered by statute
I'll hear from the government.
Thank you, Your Honor.
and regulation to be counsel to the United States and its
component agencies.
the authority to bring claims on behalf of the United States
and has delegated that authority to the Antitrust Division
And the Attorney General is vested with
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 44 PageID#
for the purposes of bringing antitrust claims, specifically
at issue in this particular motion, the antitrust claims for
damages on behalf of the United States and its component
federal agencies when it's injured in its business or
property by antitrust violations.
So counsel for Google mentioned that they agree
that intra-agency counsel, the in-agency counsel,
communicating with employees of a federal agency are
attorneys for that federal agency and that those
communications are privileged but compares the Department of
Justice, which is statutorily retained, essentially, to be
the lawyers for the United States and its agencies,
discounts that relationship, that attorney/client
relationship, between the Department of Justice and the
agencies.
The Department of Justice was providing advice and
counsel to these federal agencies regarding damages in this
case.
THE COURT:
Where do I have that in the record?
Other than what -- I mean, you've got testimony of people
who say out of the blue, didn't know anything about it,
never heard anything about this lawsuit until it got filed.
MS. CLEMONS:
Certainly.
Your Honor, they're the
individual employees.
THE COURT:
Well, these were taken -- it wasn't
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 45 PageID#
clear, but counsel for Google represented that these were
30(b)(6) deponents.
Is that not right?
MS. CLEMONS:
Your Honor, the first 30(b)(6)
deposition of any federal agency occurred this morning.
was on my way to the courthouse.
THE COURT:
MS. CLEMONS:
I
So these are not 30(b)(6) depositions?
These are not 30(b)(6) depositions;
these are depositions of individual employees.
And, in any case, I imagine that the individual
employees working at Google that may have gathered facts and
information and communicated with counsel for various
purposes related to this litigation were not aware -- fully
aware of Google's counsel's strategy with respect to this
litigation.
But that does not change the fact that these were
communications by counsel for the United States with
employees of the United States to gather information to
provide legal advice to the United States as to the scope of
its damages claims after a complaint was already drafted, as
is mentioned in the Wolin declaration, and it was after
there was already an exploration into whether and to what
extent the government would be seeking damages for injury to
its business or property.
These -- every single communication and material
that Google is requesting be compelled with this motion is
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 46 PageID#
within that time frame, was made for not just the purpose of
litigation, but for the purpose of this specific litigation,
these specific damages claims, and for the purpose of the
United States to be able to -- or the Department of Justice
to be able to advise the United States and its component
agencies with respect to the scope of those damages claims.
THE COURT:
Well, help me understand the
difference as to why that isn't just part of the
investigative file that you turned over for everything else.
I mean, if that's -- if that's the argument you're making,
why doesn't it include the entire investigative file?
MS. CLEMONS:
So the entire investigative file is
information gathered throughout the course of the
investigation, but the information gathered from these
specific agencies that were the subject or could have been
the subject of the damages claims in this case is classic
attorney/client communication, not broad investigation.
There's no allegation from Google or information anywhere in
the record that these were just general investigatory
processes, right, that we --
THE COURT:
The heading of the emails that are in
the privilege log says request for information, something
vague like that.
information about certain topics.
MS. CLEMONS:
It's not like give me some factual
Many of them do, Your Honor, yes,
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 47 PageID#
but that does not change the fact that those
communications -- the information was being gathered for the
purposes of providing legal advice to the United States; it
was being gathered about --
THE COURT:
When did the attorney/client
privileged -- when do you say that there was an
attorney/client relationship with these agencies?
that established in your view?
MS. CLEMONS:
When was
So the United States Department of
Justice has an attorney/client relationship with the United
States.
with the United States for the purposes of advising on
damages and potential damages, injury to the United States
business or property and whether that supports a damages
claim under the Clayton Act, Section 4A.
It specifically has an attorney/client relationship
You know, there's no need for Your Honor to get to
the broader question of when, under a bunch of hypothetical
circumstances, attorney/client privilege may or may not
attach, because attorney/client privilege was definitely
attached at the point that the Department of Justice was
speaking with these federal agencies about these specific
claims and formulating and determining the scope of damages.
THE COURT:
How do I know that?
telling me it's true, so it is true?
I'm trying to understand.
You're just
I mean, I don't know.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 48 PageID#
I know you ended up filing a lawsuit on their
behalf in January, but I don't know when it was that that
relationship actually was consummated, so-to-speak.
MS. CLEMONS:
That relationship already existed,
Your Honor.
THE COURT:
Well, you know, obviously you
represent agencies in a lot of different matters.
MS. CLEMONS:
THE COURT:
Yes.
And the attorney/client relationship
in one matter doesn't necessarily carry over to every matter
that you're being investigated at any point in time.
you know, there has to be some point where you, I guess,
make a determination that, you know, you're now, you know,
stopping the investigation and starting the trial
preparation material and we're having attorney/client --
and, you know, the Booz Allen case is one that, you know, I
think is favorable to Google in that regard.
that point said, okay, maybe not attorney/client up until
the time the lawsuit was filed, but certainly you've got
work product and deliberative -- you know, these other
things that are involved here.
So,
Because DOJ at
So I'm just trying to understand what it is that
your position is as far as why those communications would
necessarily be attorney/client information.
MS. CLEMONS:
Because the United States Department
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 49 PageID#
of Justice, specifically the Antitrust Division, is charged
with developing and identifying and advising the United
States and its component agencies with respect to whether
there are claims for damages for antitrust violations.
so when the United States Department of Justice determines
that there may be a violation that has damaged the United
States and its business or property, the communications in
order to provide legal advice with respect to whether those
claims exist and the scope of those claims is communication
And
within the attorney/client relationship.
THE COURT:
Even though the client doesn't know
what you're doing or asking for the information?
it be an attorney/client relationship if the client doesn't
know what the reason is behind the request?
MS. CLEMONS:
How could
The client in this case, Your Honor,
is the United States, and the client, the United States, was
well aware of the reason behind the request.
know, the Wolin declaration testifies to that fact, but --
THE COURT:
And the -- you
Well, who's the -- if the client is
the United States, then who -- I mean, DOJ is the lawyer,
and the United States is the client?
analysis is?
MS. CLEMONS:
Is that what your
Yes, Your Honor.
And that is --
that is set out in 23 U.S.C. 516 that the Attorney General
is the lawyer for the United States.
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-16Page 50 PageID#
And for this specific purpose of evaluating
whether -- whether and to what extent damages claims could
be brought on behalf of the United States, the
communications between the United States' counsel and the
components of the United States that may have been injured
are classic attorney/client communications and investigation
of claims that the United States was seeking to bring.
THE COURT:
What are your requirements to turn
over information in the investigative file?
MS. CLEMONS:
So we do have -- under the Antitrust
Division Manual and Civil Process Act, we do have
obligations to turn over facts gathered -- certain facts
gathered during the investigative phase, but there is no
obligation to turn over attorney work product or
attorney/client communications.
I think it's worth noting, Your Honor, that every
single document and set of materials that Google has
challenged would not have been created, not only but for
this litigation, but, but for the very specific need for the
Department of Justice to provide counsel to the United
States and these specific agencies regarding the scope of
potential damages claims in this case.
THE COURT:
And why -- help me understand your
argument about those that you're not seeking damages being
different from those you're seeking damages.
What's your
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 51 PageID#
position there?
so-to-speak.
Because they're obviously not parties,
MS. CLEMONS:
They are not parties, but the reason
that they are not parties is because of strategic decisions
made by counsel for the United States and advice provided to
the United States and those agencies with respect to whether
or not they should be parties.
sort of purposes for purpose of discovery in this case.
THE COURT:
Parties for the purposes --
What limitations, if any, has the
United States put on the ability of Google to obtain
information about how ads were purchased, the relationship,
whether, you know, the agencies are direct purchasers?
again, I'm sort focusing on the substantive information as
to how that advertising process works.
MS. CLEMONS:
None, Your Honor.
And,
And the
depositions that have been taken of individuals so far have
focused in large part on information such as the ordinary
course of their advertising purchases and their
relationships with their ad agencies.
The government -- the federal agencies have
produced, through the United States Department of Justice,
millions of pages of documents that describe the ordinary
course, use and understanding of their purchases of
advertising.
The facts that Google is claiming are just facts
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 52 PageID#
are really work product material that they're seeking that
show the mental impressions of counsel and the strategic
decision-making of counsel regarding which facts to gather
in order to assess the specific damages claims on behalf of
those agencies, which facts were important to that
determination.
There is -- Google has not, you know, met its
burden to show that these facts, facts about market
definition, for example, are not otherwise available.
They
have asked questions during depositions.
I presume they
will continue to ask questions during depositions that go to
those very issues.
not only from the United States and those federal agencies,
but from countless third parties related to this litigation
as well.
And they have been receiving information
THE COURT:
Let me just ask you this scenario.
If you have a document request -- and I think it's
Number 12 that asks about ad buys and things like that.
you have been provided information from an advertising
agency about ad buys and it's within your -- and it just
shows this is the information about ad buys, why wouldn't
that be information that should be produced and provided to
the defendant in this case?
MS. CLEMONS:
If
Where that information was very
specifically requested by counsel of its client, not by
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 53 PageID#
counsel just going out to the ad agency asking for general
information, but information the client was gathering for
counsel in order to render legal advice.
that information, the scope of what information was
requested, and the format in which that was requested, do
reveal the strategy, the legal impressions of counsel as to
what is important.
The composition of
There is -- there is not a clear black-and-white
line between fact work product and opinion work product when
the -- when counsel is asking for compilation of certain
facts in certain ways in order to render legal advice.
in this case, the ad agencies -- the very limited
communications with ad agencies by the federal agency
employees about the types of information that those ad
agencies were contracted to retain and be knowledgeable
about on behalf of those federal agencies.
THE COURT:
completely.
Well, I'm not sure I understand that
Help me -- go back over that again.
Request Number 12, you know, purchase of open web
display advertising and the use of the advertising.
have information that has been provided to you by your
advertising agencies relating to that request.
And,
So you
You say you don't have to produce that
information?
MS. CLEMONS:
Your Honor, anything provided in the
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 54 PageID#
ordinary course of business -- and there are millions of
documents provided in the ordinary course of business -- is
being turned over through discovery.
small subset of information, information gathered with the
assistance of an advertising agency to put together
responses by the federal agent client for counsel at -- made
at the request of counsel.
THE COURT:
This is a very, very
You still have the obligation to
provide that information; right?
MS. CLEMONS:
THE COURT:
possession, custody or control.
you've gotten that information, and it's now within your
possession, custody or control, they're asking for it.
That information --
The information is now within your
MS. CLEMONS:
You've reached out and
They are asking for it, Your Honor,
but it is -- it is protected work product, and we have -- we
have obligations to log protected work product, and if there
are facts that Google believes that it cannot get any other
way -- facts, not opinions, not discussions with counsel,
not determinations of what counsel thought was important in
that moment to assess its claims, but facts -- then those --
then those facts -- they have to show that they can't get
those facts in any other way.
And if the fact is the amount of purchases,
there's innumerable sources of evidence for the amount of
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 55 PageID#
purchases.
the -- just the numbers, right, or something like that.
They are asking for all of the communications, all of the
documents created at the request of counsel by federal
agencies with the assistance of their ad agencies.
is a very, very limited subset of information gathered, not
for the purpose of generally investigating the case, but for
the purpose of assessing with respect to that federal agency
whether and to what extent the United States was injured in
The real fact -- they're not just asking for
And this
its business or property.
THE COURT:
So you're saying that any time a
lawyer asks for someone to get them information and it's
sent to the lawyer, that lawyer doesn't have the obligation
to then provide that information, whether in the same format
or whatever, in response to a discovery request?
MS. CLEMONS:
To be clear, Your Honor, it's not
any time a lawyer asks for any information and any
circumstance.
work-product issues are very fact-specific and
circumstance-specific.
Right.
All of these privilege and
But the compilation and curation of specific
pieces of information that reveal the counsel's strategy and
information that they thought was particularly important for
assessing a particular legal issue, that is work product.
It's the -- it's -- the underlying facts are not
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 56 PageID#
themselves protected outside of that circumstance, but when
they've been put together into a piece of work product that
cannot be separated from the request of counsel and the
purpose of counsel, then they are protected.
And the questions that have -- many of the
questions that have been asked during the depositions that
have occurred so far have not just been did the Department
of Justice direct you with respect to information-gathering;
they've been specific questions about what the Department of
Justice wanted.
THE COURT:
Well, you've told them not to answer
those questions, too, some of them.
Did you get instructions -- you instructed them
not to answer those kinds of questions; right?
MS. CLEMONS:
specific pieces of information.
sitting in front of a witness saying did your -- did your
counsel direct you to get this document or this specific
information from some specific source.
When the questions were about
Right.
So a document
But I want to -- I want to emphasize, Your Honor,
that these are -- these -- you know, this issue of facts
gathered under these very limited narrow circumstances for
these limited narrow purposes from ad agencies is only a
very small portion of what Google is seeking to compel here,
which is all of the communications between the Department of
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 57 PageID#
Justice and its clients, between -- and work product and
information created for the purpose of assessing the damages
claims in this lawsuit.
THE COURT:
Okay.
MS. CLEMONS:
Google is also requesting that we
now log -- this is part of their motion, that the Department
of Justice log every communication with just counsel for
these agencies to the same ends, presumably, so that they
can try to determine what counsel's strategy was and opinion
work product.
THE COURT:
Thank you.
Ms. Dunn, anything else you would like to add?
MS. DUNN:
Your Honor, with the Court's indulgence, I'll
Yes, Your Honor.
start with the government started, which is it sounds like
their position is that all federal agencies are clients all
the time.
to that.
Jackson; and the other is the Stonehill case.
of those cases, they recognize that the Department of
Justice, when there's a suit brought, is the lawyer for the
agency, but the Cayuga Nation case in particular recognizes
that the statute is permissive as to whether the Department
of Justice may be sent to attend to the interests of the
United States.
And there are two cases that we cite with respect
One is Cayuga Nation, an opinion by Amy Berman
And in both
And so it is simply not the case that at all
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 58 PageID#
times all agencies are in a client relationship with the
Department of Justice for the purpose of the attorney/client
privilege.
normally applies has to be applied where the client has to
be knowing that it's seeking legal advice, a confidential
relationship.
And, in fact, the cases say that the test that
Now, the Department also said that the DOJ was
providing advice.
The Wolin declaration never says this,
and this is nowhere in the record.
burden.
that.
documents.
their advice.
the record is there evidence.
Again, this is their
If the DOJ does provide advice, they could redact
I don't think that's what will be found in these
But that's not what we're seeking; we don't want
But, again, it's their burden.
Nowhere in
And, in fact, the Wolin declaration is very
particular in not saying that.
information-gathering exercises.
are -- you know, it doesn't even say there's an
attorney/client relationship.
because -- presumably because it wasn't the case.
if they could say those things, they would be in the
declaration.
It talks about these were
It does not say these
It does not say those things
I think
Now, with respect to anticipating litigation, the
Department's responsible.
The United States was aware.
Well, under the cases, that's not sufficient.
So, first of
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 59 PageID#
all, the rule itself says it's the party's representative --
either the party or the party's representative, right, is
going out to create this work product.
has struck me as I've read all these cases, Your Honor, is
it talks about work product being prepared.
about it being prepared.
RLI that are in the Fourth Circuit, they talk about the
preparer needing to anticipate a claim, anticipate
litigation.
And one thing that
It's always
So the cases National Union and
So these cases are even an ill fit, and the rule
is an ill fit because it's not -- here we don't have a party
representative going out to do work for the attorney, as the
case generally applied to; we have an information-gathering
exercise from an entity that -- where the witnesses have
uniformly testified they are not anticipating litigation.
So it's -- even by -- even if Your Honor decides
the work product rule applies, notwithstanding the fact that
these are not party representatives out to do work for the
lawyer, the preparer has to be aware under Fourth Circuit
precedent.
I think the other statement by the DOJ that
highlights the untenability of their position under the law
is the idea that non-party agencies are clients.
third parties.
were really sources of information.
These are
They're not parties to the lawsuit; they
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 60 PageID#
Now, I do think it is helpful that -- I heard the
Department counsel acknowledge their obligation to hand over
the investigatory file, and --
THE COURT:
investigatory file.
MS. DUNN:
Yes, Your Honor.
Except for
information that is privileged.
Non-privileged information in the
But there is no argument from the Department that
contradicts the record evidence that they have provided that
this is fact-gathering.
been pointed to in the record -- again, it's their burden --
that says these are anything beyond facts that are being
gathered.
There's really been nothing that's
Now, I want to also point out, we are not aware of
any compilation of a unique mix of information that counsel
just referred to.
just responding with information that they had based on
their experience and that their agencies had.
declaration sets out the standard of comments made in direct
response to my questions.
will be compilations by agency lawyers designed for
litigation; they're really just the facts, and that's what
we're interested in.
We really believe these agencies were
And the Wolin
So we don't expect that these
To Your Honor's question about has the government
been providing us with all the information that we need, we
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 61 PageID#
have asked three times for them to supplement Rog.
Number 14, which is about direct purchases of open web
display advertising from counsel.
response is, FAAs purchase ad tech services.
And to date, the DOJ's
So we are not getting all the information that we
need, and I -- but I do stand by my prior argument that
given that we are going to have a trial in this case, and we
are going to have -- these are our witnesses.
eight agencies that they have injected into this lawsuit.
These are the
They are who we have.
market -- and these are the -- you know, these are the
people we have, they're on the correspondence.
the people that are going to establish what the basis of the
government's case is as far as ad purchases and ad buying.
And their experience in the ad
These are
So we can ask questions of them, and we do,
obviously, but I really don't think it can be overstated the
importance of documents and communications and facts that
were -- that were provided -- to which we're statutorily
entitled -- when asked these questions in the first
instance, and the communications of the agencies that are
responding.
witnesses in, and we have to have a way to remind the
witnesses what they're talking about.
I mean, we have to have a way to hem the
So I do think that, you know, we can just have
examinations without documents, but, Your Honor, documents
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 62 PageID#
are very important when you're examining witnesses on the
stand, as I know Your Honor knows.
no exception when these are witnesses prepared by the
government seeking damages.
them.
And here is going to be
We need to be able to examine
So I -- one other piece I want to respond to is
this idea of opinion work product, because it did sound like
the Department of Justice is taking the position that when
their lawyer asked a question, everything that came back
reflected his mental impressions and his decision-making.
Their Opp. 7 says:
"Information in the
communications included the nature and extent of purchases
of digital advertising by agencies."
purchases."
we're looking for.
"Nature and extent of
That's from their opposition.
That's what
That is not mental impressions.
Wolin paragraph 8:
"Communications undertaken to
gather information about digital advertising."
And I will
say, one of the reasons that the balancing test that the
Court goes through for the deliberative process privilege
and that the Booz Allen Court did talks about whether the
government is a party.
gathers information, that is discoverable by the other
party, and they don't want to give the government a leg up
because it's -- just because it's the government when it's a
litigant.
And that's because when any party
And here in this case, it's not just a litigant;
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 63 PageID#
it's a damages-seeking litigant.
This is a civil case for
damages; these are the damage-seekers.
So, in any other case, if we were not sitting
across the table from the Department of Justice and the
agencies who are seeking damages, we are just a
damages-seeker and they had information that was the facts,
we would be entitled to that.
disadvantaged in this civil litigation, and that is why that
is a part of the balancing test of substantial need, in
And so we should not be
addition to the idea that, you know, as Judge Brinkema said
when this case set off, it's breakneck pace.
depositions all the time.
And we can't possibly depose all the federal agencies that
gave information to the DOJ, we can't possibly depose all
the ones that aren't parties, as well as the ones that are
parties, and we truly cannot possibly depose all the ad
agencies as well.
So it's just not feasible to do that.
We are in
We don't have that many of them.
I mean, we have 20 non-party depositions.
So, Your Honor, those are the primary points I
wanted to get to in rebuttal.
any additional questions.
began, which is, I assure you, Your Honor, we would not be
here if we didn't think this was crucial and if we thought
we could just make up for all of this at trial.
I'm happy to answer obviously
But I really want to end where I
It's -- you know, in order for experts to opine on
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 64 PageID#
relevant market, they need facts in the record at trial.
order to present the issue to the Judge eventually upon
relevant market -- which if their relevant market is wrong,
this whole case goes away.
those communications where, you know, the one analogous
communication we have by the OIG, the one you saw, the
government is saying to the agency, the agency doesn't know
what they're talking about when they say third parties, and
the government says, no, we're not asking about Facebook or
The whole case goes away.
In
And
Amazon or TikTok -- they mention at least two of those
three, maybe all three -- we don't want your information
about those, even though that's what the agency might think.
That communication goes directly to what we need
to show about relevant market.
market, and they're -- it's not going to be every witness in
the market.
that's who we have, and that's who they have put into this
case.
These are people in the
These agencies are in the market.
Okay.
And
And so if there are more documents like that in
this pile -- which I hope, Your Honor, if there's any
ambiguity, would review them in camera.
documents that are saying by the government, we don't care
about Facebook, that's not something that we conclude in the
market, that goes directly to our contesting the market that
they have established.
If there are
And when the agencies say that's not
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 65 PageID#
who we think of when we think about third parties, that's
not how we go about ad buying.
back who ad buy for a living -- who we can't depose all of
them because of limited depositions -- and they say the same
thing, that is critical evidence that we need for this case,
Your Honor.
And when the agencies come
Look, it's a hard case, and the critical issues --
and it's not just a hard case; it's a case that is going to
define permanently -- it's a path-breaking case that will
define permanently what this market looks like.
know, the government is seeking to break up the company.
And as you
So this is not a light ask that we're making.
These documents go directly to that, to that critical issue
of market.
available to them.
out.
direct purchasers, information we cannot get, apparently,
through our interrogatories.
It goes directly to whether a jury is even
We can't even get to trial and work this
We need to know beforehand whether or not they hire
So I don't want Your Honor to think that these are
not -- what we said is true; there's a reason we put it in
the first paragraph.
defense of the case on both the damages component and also
the case overall, because there's no civil antitrust case
that can go forward without the government proving its
relevant market.
It is crucial, we believe, to our
And so far in the analogous documents
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 66 PageID#
we've seen, they can't.
And having one document between one OIG and one
agency is fine, we're happy to have that one, but if there
are more out there for these agencies and how they reacted
when they were presented with, you know, this concept,
that's, like, you know -- that's extraordinarily probative
for us.
And we really appreciate Your Honor's time today.
THE COURT:
about 30(b)(6) depositions or not?
MS. DUNN:
I apologize, Your Honor.
THE COURT:
MS. DUNN:
THE COURT:
That's all I have.
Yeah.
Well, I think I have a slight
better understanding of what the issues are in this case.
MS. CLEMONS:
THE COURT:
MS. CLEMONS:
THE COURT:
I apologize.
Okay.
We are
taking -- I was incorrect about the --
Were the depositions we were talking
Your Honor, if I could just --
No.
No.
They're the movant.
Okay.
You had your argument; they had their
reply.
I'm going to end up having to take this under
advisement.
If I want to have additional argument next
week, I'll let you know by Wednesday, otherwise I'll try and
rule on the papers at some point, but I'm not prepared to do
Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649Page 67 PageID#
it today.
out what you all are really getting at in this case.
There's too many open issues to try and figure
So I'll let you know by Wednesday if, in fact, I
need more argument on this in addition to the other motions
that are currently scheduled for next Friday as well.
Hopefully they may not be necessary, but just let me know on
that front.
I also want to let you know, I'm not hearing
motions on the 8th of September.
So to the extent you have
planning purposes or things like that, I'm not having court
on Friday the 8th.
I'm going to take a five-minute recess to take up
my other matter.
Thank you.
(Proceedings adjourned at 12:33 p.m.)
----------------------------------
I certify that the foregoing is a true and accurate
Case 1:23-cv-00108-LMB-JFA Document 350 Filed 08/29/23 Page 1 of 67 PageID# 5193
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
---------------------------x
UNITED STATES, et al.,
:
:
Plaintiffs, :
versus
:
:
GOOGLE LLC,
:
:
Defendant.
:
---------------------------x
Civil Action No.:
1:23-cv-108
Friday, August 25, 2023
Alexandria, Virginia
Pages 1-67
8
9
The above-entitled motions hearing was heard before
the Honorable John F. Anderson, United States Magistrate
Judge. This proceeding commenced at 11:01 a.m.
10
A P P E A R A N C E S:
11
FOR THE PLAINTIFFS:
12
13
MATTHEW TROY, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3700
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15
16
17
18
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20
21
JULIA TARVER WOOD, ESQUIRE
KATHERINE CLEMONS, ESQUIRE
MICHAEL WOLIN, ESQUIRE
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
450 Fifth Street, NW
Washington, D.C. 20530
(202) 894-4266
TYLER HENRY, ESQUIRE
OFFICE OF THE ATTORNEY GENERAL
OFFICE OF THE SOLICITOR GENERAL
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7704
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Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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A P P E A R A N C E S:
FOR THE DEFENDANT:
3
4
CRAIG REILLY, ESQUIRE
LAW OFFICE OF CRAIG C. REILLY
209 Madison Street
Suite 501
Alexandria, Virginia 22314
(703) 549-5354
5
KAREN DUNN, ESQUIRE
ERICA SPEVACK, ESQUIRE
MARTHA GOODMAN, ESQUIRE
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, D.C. 20006
(202) 223-7300
6
7
8
9
10
ANDREW EWALT, ESQUIRE
ERIC MAHR, ESQUIRE
FRESHFIELDS BRUCKHAUS DERINGER, LLP
700 13th Street, NW
10th Floor
Washington, D.C. 20005
(202) 777-4500
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12
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15
16
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18
COURT REPORTER:
STEPHANIE M. AUSTIN, RPR, CRR
Official Court Reporter
United States District Court
401 Courthouse Square
Alexandria, Virginia 22314
(571) 298-1649
S.AustinReporting@gmail.com
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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Stephanie Austin, RPR, CRR USDC/EDVA (571) 298-1649
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P R O C E E D I N G S
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3
THE DEPUTY CLERK:
Calling Civil Action Matter
Number 23-cv-108, United States, et al. versus Google LLC.
4
THE COURT:
5
themselves, please.
6
MR. TROY:
Okay.
Counsel need to introduce
Good morning, Your Honor.
7
Matthew Troy, Assistant U.S. Attorney, United States
8
Attorney's Office.
9
MS. WOOD:
Good morning, Your Honor.
10
you.
11
Katherine Clemons, will be arguing today.
12
13
14
Julia Wood for the United States.
THE COURT:
Good to see
My colleague,
Clemons; is that correct?
to make sure I have the name right.
MR. HENRY:
I just want
Okay.
Good morning, Your Honor.
Ty Henry
15
from the Office of the Attorney General of Virginia on
16
behalf of the plaintiff states.
17
THE COURT:
Thank you.
18
MR. WOLIN:
And good morning, Your Honor.
19
Michael Wolin from the Antitrust Division on behalf of the
20
United States.
21
MR. REILLY:
Good morning, Your Honor.
22
Craig Reilly here for Google, together with my co-counsel,
23
Karen Dunn.
24
MS. DUNN:
25
THE COURT:
Good morning, Your Honor.
Good morning.
3
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MR. REILLY:
2
Weiss firm.
3
address the Court.
4
And Erica Spevack from the Paul,
Ms. Dunn, with the Court's permission, will
Also here in the well of the Court is Eric Mahr
5
and Andrew Ewalt, who the Court has met.
6
other attorney may be joining us, not to present, but to be
7
present, Martha Goodman.
8
Court's permission to allow her to take a seat at counsel
9
table when she arrives.
10
THE COURT:
11
MR. REILLY:
12
THE COURT:
13
MR. REILLY:
14
THE COURT:
15
16
We expect one
And I would just request the
Okay.
But we can proceed without her.
Okay.
Thank you, Your Honor.
Well, Ms. Dunn, let me have you come
up first.
You know, just a couple of things initially.
I
17
think at least multiple times I have suggested to the
18
parties that the expedited briefing schedule should be used
19
judicially.
20
highlighted that motions involving privilege issues are ones
21
that require extra time for the parties and for the Court.
22
I think in my comments in that regard, I
You filed yesterday, at 4:00, 200 pages in a reply
23
brief and exhibits on a motion that you filed last Friday
24
and want me to decide today.
25
decision to do this on an expedited briefing schedule with
4
I want to hear why it was a
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the understanding that you're going to end up filing a reply
2
brief with close to 200 pages at the end of the day
3
yesterday.
4
MS. DUNN:
Your Honor, first of all, we obviously
5
understand the Court's concern, and I want to assure the
6
Court that we take very seriously Your Honor's caution that
7
we only bring matters to this Court on an expedited basis
8
extremely judicially.
9
This issue of privilege goes really to the heart
10
of this case, to the heart of -- and to the heart of the
11
damages case the government has brought.
12
THE COURT:
In what way does it go to the heart of
13
the case?
14
have a damages case.
15
on December 22nd of last year or December 22nd of 2021,
16
either they do or don't have a damages case.
17
18
damages case?
MS. DUNN:
THE COURT:
22
MS. DUNN:
23
THE COURT:
25
So, Your Honor, there are three things
that I want to put --
21
24
Whether they started the investigation
So what do you mean by it goes to the heart of the
19
20
They either have a damages case, or they don't
Answer my question first -Yes, I will do that.
-- and then you can expand upon it all
you want.
MS. DUNN:
Your Honor, the first piece is that it
5
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goes to whether they have a damages case at all.
2
THE COURT:
Okay.
And what evidence relating to
3
communications between December 22nd and January 22nd goes
4
to whether they do or don't have a damages case?
5
MS. DUNN:
So that period of time was the only
6
period of time where they gathered factual information from
7
the agencies on whose behalf they now claim damages and
8
other agencies on whose behalf they do not claim damages.
9
THE COURT:
You don't think they've been trying to
10
get information from the agencies since January 22nd to the
11
present and aren't continuing to investigate and prepare
12
their damages case?
13
MS. DUNN:
Your Honor, we agree they're continuing
14
to prepare their damages case, and we are not seeking those
15
communications.
16
communications that we have seen that have already been
17
clawed back show the immediate reactions of these agencies
18
to the government's outreach.
19
THE COURT:
20
MS. DUNN:
21
22
23
24
25
But the communications -- first of all, the
Okay.
So --
Which, first of all, said they
didn't -THE COURT:
But, again, Ms. Dunn, let me just
understand this.
The damages case will be presented at a trial that
will happen next year.
You understand that.
Whether they
6
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had a weak damages case at one point and then they turned it
2
into a strong damages case as the case progresses will be
3
determined at the trial; not determined at the time the
4
complaint gets filed.
5
You said in your brief -- I mean you started,
6
factual information that's crucial to the defense of this
7
case.
8
What communications that happen between one month before the
9
lawsuit got filed, you know, isn't going to be what this
You will be defending this case at a trial next year.
10
case is tried on.
11
complete damages case.
12
This case is going to be tried on their
So, again, I'm trying to understand what is so
13
crucial and so important about this information for the
14
defendant.
15
16
MS. DUNN:
THE COURT:
18
MS. DUNN:
20
And, Your Honor, first of all,
if they don't have damages, they can't have a jury.
17
19
Yeah.
Okay.
So that needs to be decided before a
trial.
THE COURT:
And Judge Brinkema will do that, but
21
that issue isn't in front of me right now, and that -- once
22
that issue gets teed up, they'll be able to present what
23
evidence they have on their damages case.
24
25
MS. DUNN:
Second of all, Your Honor, there is the
issue of relevant market.
And when the government reached
7
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out to these agencies, their responses were often, we don't
2
understand what you're talking about, that's not how ad
3
purchasing works.
4
and we hope Your Honor will review them in camera if there's
5
any indecision -- will demonstrate that the market of the
6
actual only agencies that they are here representing don't
7
agree with their version of the market.
8
that's not how ad buying works, and so these documents --
9
And those documents, we feel confident --
THE COURT:
10
They say that
Well, that -- what their opinion --
MS. CLEMONS:
Your Honor, could I object to her
11
referring to documents that are privileged and have been
12
withheld or clawed back that counsel has seen prior to those
13
clawbacks?
14
THE COURT:
Well, whatever an employee of an
15
agency thinks is not going to be crucial to your case.
16
Whether a marketing person at one agency thinks something or
17
isn't familiar with the term or doesn't think that's right,
18
you know, that is one person's testimony about what he or
19
she thinks.
20
MS. DUNN:
Your Honor, these are the plaintiffs in
21
the case.
22
bringing the case.
23
30(b)(6) of the agency plaintiffs.
24
in this case.
25
These are the people on behalf of whom DOJ is
We are examining these witnesses as
They are the plaintiffs
And they don't --
THE COURT:
The plaintiff in this case is the
8
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United States.
2
MS. DUNN:
The United States has identified eight
3
agencies on behalf of whom it asserts that it's bringing
4
this case and bringing this case for damages.
5
30(b)(6) depositions are incredibly important.
Those
6
This is a case that -- where the government seeks
7
to reframe an entire industry that is a multibillion dollar
8
industry.
They've brought the case on behalf of eight
9
agencies.
The 30(b)(6) deponents, our testimony and
10
documents will undermine their market definition, which, in
11
a civil antitrust case, is a threshold issue before you even
12
get to trial.
13
THE COURT:
A very important issue, but not an
14
issue that someone who is boots-on-the-ground necessarily
15
understands.
16
that is legal, not necessarily something in the advertising
17
industry.
A legal issue of market share is something
18
So I'm just --
19
MS. DUNN:
Your Honor, respectfully, market share
20
is different than market definition and relevant market.
21
Market share is a totally different thing, and I agree,
22
experts can testify to market share.
23
Market definition, the standard for that is the
24
commercial reality of the marketplace, and the only people
25
in the commercial reality of the marketplace on the
9
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government's side are these agency buyers of ads and their
2
ad agencies.
3
are spending our very small number of depositions on these
4
agencies because they are going to define the commercial
5
reality that defines the relevant market.
6
These are crucial witnesses.
That's why we
Second of all, Your Honor, there's an issue of
7
whether they are direct purchasers, and that's an issue
8
under Illinois Brick.
9
they're direct purchasers, another reason that we need these
10
So if they can't establish that
documents, then --
11
THE COURT:
Well, why do you need these documents?
12
That's the part that I don't understand in your argument
13
both that you filed last Friday and that you filed last
14
night.
15
No one is saying that you can't get testimony
16
about how they buy their advertising.
17
through and you can say, you know, do you buy it directly?
18
Do you buy it through this entity?
19
What goes -- the whole process of how they purchase their
20
advertising is -- no one has said you can't get testimony
21
about that.
22
MS. DUNN:
That you can go
Or through that entity?
Your Honor, we commend to the Court the
23
Booz Allen case where that court looked at a very similar
24
issue.
25
defendant was entitled -- this was a case where the ATR
And it was said expressly by that Court that the
10
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Division was the plaintiff, they brought the same arguments
2
they're bringing here, and they lost because the defendant
3
is entitled to test that testimony.
4
from that --
5
6
THE COURT:
MS. DUNN:
8
THE COURT:
10
Where did it say that in the Booz
Allen case?
7
9
And we -- the documents
What?
Where did it say that in the Booz
Allen case that they get to test the testimony?
You're
talking about the decision by Judge Blake in Maryland?
11
MS. DUNN:
12
THE COURT:
Yes, Your Honor.
Okay.
So it discusses deliberative
13
process in the first three pages.
14
the attorney/client privilege.
15
work product doctrine where it finds that it is information
16
that's covered by the work product doctrine but in good
17
faith.
18
19
MS. DUNN:
It has two paragraphs on
It has two paragraphs on the
Your Honor, that's not -- no, this is
not the case.
20
First of all, just to take a step back, Your
21
Honor.
22
these documents privileged, and we are seeking to
23
discover --
24
25
The question is not -- the first question is, are
THE COURT:
minute.
Let's get into that argument in a
I'm just trying to understand what it is that you
11
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think you can't have that deals with, one, your damages
2
case.
3
process is, what the contractual relationship is, what their
4
involvement is.
5
it through various processes and procedures, or is that
6
their advertising agency making those decisions?
7
they're a direct purchaser or not.
That is, how do they buy their advertising, what the
Do they, you know, know that they're doing
So whether
8
MS. DUNN:
9
THE COURT:
You're getting all that information;
11
MS. DUNN:
Your Honor, in the Booz Allen case --
12
THE COURT:
Well, again, I'll let you make your
10
right?
13
argument.
14
questions.
15
Yes, Your Honor.
I just want to know -- I want you to answer my
MS. DUNN:
Because we're not getting this -- first
16
off, we're not getting this testimony because some amount of
17
it has been clawed back.
18
19
20
THE COURT:
That's Point 1.
Well, that's relating in the
communications.
MS. DUNN:
But the witnesses are being examined
21
about their purchases based on those documents.
22
documents that we --
23
THE COURT:
Those are
Why are you using those documents?
24
Why don't you just ask them about their purchases?
25
you buy advertising?
What is the contract?
How do
Who is it that
12
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you buy from?
2
look at a document that they've clawed back and say, well,
3
didn't you say this?
4
How do you know about certain things?
MS. DUNN:
Not
Didn't you say that?
Well, Courts, including the Booz Allen
5
Court and the FEC v. Christian Coalition Court in this
6
district recognized that witnesses, first of all, often need
7
the documents to refresh their recollection, to remember and
8
to respond to.
9
That's one thing.
And the second thing is that --
10
THE COURT:
11
MS. DUNN:
12
THE COURT:
Again, let me understand that.
Yeah.
You don't think that in a 30(b)(6)
13
deposition where the topic is how do you buy your
14
advertising, that they're not going to come in prepared to
15
talk about how they buy their advertising?
16
MS. DUNN:
We have been deposing these witnesses,
17
Your Honor, and it is true -- and it is in our briefs --
18
that when the witnesses are shown the documents, they recall
19
things that they didn't recall before they are shown the
20
documents.
21
That's the first thing.
The second thing is, we are limited -- and this
22
has been recognized also in Booz Allen and other cases -- in
23
the number of depositions that we can take.
24
take 30(b)(6) depositions of these agency plaintiffs, and we
25
are entitled to test their testimony.
So we need to
13
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The other thing that's happening is now that
2
we're -- we've deposed four of these witnesses, the
3
witnesses have started to testify differently because
4
they've been prepared for the questions that we're going to
5
ask.
6
product, fact -- and having -- not under the influence of
7
preparing testimony for a litigation to test the testimony
8
that we're getting.
9
documents where something is written on a page.
So we need the documents that are prefiling, fact work
There's really no substitute for
When you're
10
in trial and you're examining a witness, they often are
11
hemmed in by the words they wrote in the document.
12
and that has gone to the substantial need query that Courts
13
have looked at.
14
THE COURT:
So --
So it's crucial to your case whether
15
they know that a meeting was on January 3rd or January 8th?
16
They know they had a meeting, they don't remember the
17
particular date, but you need to have the documents so they
18
can say whether it was on the 3rd or the 8th, and that's
19
crucial to your case?
20
MS. DUNN:
Your Honor, the testimony and the
21
documents, we believe, go well beyond the question of what's
22
the date.
23
where they purchased it, what the market is that they
24
operate in.
25
It's how they purchased, what they purchased,
All of -- this is going to be -- a key issue in
14
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this case is how are these purchasers purchasing their ads.
2
They are going to be -- there's two kinds of witnesses who
3
understand the commercial realities.
4
parties who were also part of the government's investigation
5
and investigative file, and they've turned over those
6
documents.
7
One are the third
The other are these agencies where those documents
8
they concede are part of the investigative file or part of
9
their investigation.
We are entitled to that under statute
10
and under the Antitrust Division's manual, and those have
11
been withheld improperly under privilege.
12
So the first question is, are they privileged.
13
And what the government is essentially saying is, every time
14
an Antitrust Division lawyer reaches out and communicates
15
with a federal employee -- lawyer or non-lawyer agency -- to
16
investigate to gather facts, and then that person, even
17
though they're not a client, they're not a party at the
18
time, if that person reaches out to other people, their
19
contractors -- and in this case, the ad agencies -- who the
20
department has insisted are independent, they have no
21
control over them, that's privileged, too.
22
That would make any time the government reached
23
out to any government employee and that employee reached out
24
to any other contractor all within the universe of
25
privilege, which is directly contrary to how the Fourth
15
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1
Circuit directs that we treat the privilege.
2
THE COURT:
All right.
Let's step back.
3
January 24th, 2023, someone from the Department of
4
Justice writes to a federal agency and says I want
5
information, and they then reach out to a representative or
6
their contractor to get information.
7
8
You're saying that wouldn't be covered by a
privilege?
9
MS. DUNN:
10
THE COURT:
You're speaking about after filing?
Right.
I'm just trying to figure out
11
what -- why, in your mind, is the magic date the filing of
12
the complaint.
13
MS. DUNN:
It's not just in my mind, Your Honor.
14
These are parts of the investigative file that DOJ collects,
15
and to which we are entitled pursuant to statute and
16
pursuant to the DOJ manual.
17
communications from its investigative file, and they say in
18
the Wolin declaration, which are their evidence, it's their
19
burden, they say that this is communications for
20
information-gathering purposes about digital advertising
21
purchases by federal agencies to aid in the Antitrust
22
Division's investigation.
23
DOJ acknowledges that these are
So that is only what we're asking for.
We're not
24
asking for any opinion work product, any attorney mental
25
impressions.
And this is -- the entire point of work
16
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1
product is to provide a zone of privacy for an attorney.
2
by the time that a suit is brought, there is a distinction
3
made.
4
distinction in the Booz Allen case.
5
reading what the Court said in that case.
6
7
So
And, actually, the government itself made this
THE COURT:
And I think it is worth
I have it in front of me.
Just tell
me where you are.
8
MS. DUNN:
9
THE COURT:
It's at page 3.
Where they decided at some point to
10
not turn it into a deliberative process or not call it
11
attorney work product, but they called it not
12
attorney/client privilege but work product; is that what
13
you're talking about?
14
MS. DUNN:
Your Honor, not exactly.
15
At first what the government did is it said that
16
these were privileged documents prefiling of the complaint
17
because the NSA was DOJ's client.
18
first and second privilege log, it changed its view, which
19
the Court agreed with, and then also took this position in
20
the hearing.
21
the same Antitrust Division.
22
government drew a line between the DOJ's initial inquiries
23
with the agency where DOJ first played the role of an
24
investigator and the time when the DOJ decided to file the
25
present lawsuit where --
Then after -- between the
This is, by the way, only a year ago.
It's
And it said that the
17
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THE COURT:
2
MS. DUNN:
3
THE COURT:
4
On December 22nd, I have an affidavit saying a
5
Decided to file --- the DOJ became counsel.
Decided to file the present lawsuit.
draft complaint had been filed, prepared.
6
MS. DUNN:
Your Honor, if that were the case and
7
that is what applied, it would apply to all of the
8
communications in the investigative file after that date and
9
before the filing.
But it doesn't.
And DOJ has turned
10
those over.
11
material until the complaint was filed.
12
that line.
13
accepted here, it is going to apply -- it would apply
14
equally to all of these third-party communications that they
15
had -- that they already turned over and that they're
16
required to turn over.
17
It kept turning over investigative file
It, itself, drew
And if the DOJ's position about privilege is
There's no distinction between the rest of the
18
material in the investigative file where the government is
19
reaching out to get information from third parties than
20
there is when they reached out to get information from the
21
agencies.
22
And actually at the time of filing, Your Honor,
23
they weren't even claiming damages for seven out of the
24
eight agencies.
25
asking for the facts to which we are entitled that are not
18
So that's all later, too.
We are only
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privileged, and documents that, if Your Honor reviews them
2
in camera, we feel very confident you will see that they
3
just have to do with the facts; the how, what, when and
4
where of the agencies' purchases.
5
And I -- Your Honor, I completely understand that
6
these are complicated issues and we are on an expedited
7
schedule, but this is a crucially important case, and
8
this -- these communications with -- they are the plaintiffs
9
in the case.
They are the people -- they are the entities
10
claiming damages here.
11
only evidence that the government is going to put forward to
12
support its damages and that we have to test about the
13
market that exists in this case.
14
to Your Honor if it wasn't crucially important.
15
THE COURT:
So -- and they are -- they are the
So we wouldn't bring this
Well, again, circle back around to
16
what evidence about them purchasing advertising do you think
17
you're not going to have?
18
that it's done, the amount that's been purchased, how it was
19
used, all of that, the substantive information about how
20
they actually buy it.
21
that you think you would get in these, you know -- you know,
22
we're looking for information, can you help me gather some
23
information.
24
25
MS. DUNN:
That is, the contracts, the way
What is it that you're not getting
Your Honor, there -- so, first of all,
we -- there are documents that we cannot see, so I can't
19
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tell you what's in the documents that we can't see, but --
2
THE COURT:
What is it -- what is it you think
3
might be there other than --
4
MS. DUNN:
5
THE COURT:
6
Yes.
-- your knowing -- and, again, you
know, this is --
7
MS. DUNN:
Yes.
So, Your Honor, there is an
8
analogous document that we've pointed Your Honor to, and
9
that is between one of the agency's OIGs and --
10
THE COURT:
11
MS. DUNN:
12
that.
I read it.
Okay.
So we expect to see more of
What happened in that case --
13
THE COURT:
Again, you're not answering my
14
question.
Whether they understand certain things, whether,
15
you know, this term is familiar or not familiar.
16
you a very specific question, and if you don't understand
17
it --
I'm asking
18
MS. DUNN:
I understand it, Your Honor.
19
The government puts forward a market for open web
20
display advertising.
When it went out to these third
21
parties, they did not understand what that meant.
22
meant that the people on behalf of -- on whose behalf the
23
suit is being brought, and some of the only witnesses that
24
can testify to the commercial realities of the market, did
25
not understand the DOJ's relevant market, they didn't
And that
20
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understand what they were talking about.
2
about buying from third parties, they didn't know what that
3
was.
4
agencies thought about the market much more broadly.
5
thought about the market as including Facebook and TikTok
6
and Amazon and all of the things that the government
7
gerrymanders out of its market.
8
9
When they talked
And also you're going to find that the -- that the
They
That's one thing.
The second thing that we expect to find is
information directly relevant to whether the agencies are
10
direct purchasers.
11
that we can take in this case.
12
to apply, not just to these agencies, but also to all the
13
many third parties.
14
substantial need have found that that is -- even a much
15
greater number of depositions available have been too
16
limited to get the information.
17
And we have very limited depositions
Non-party depositions have
And other courts that have looked at
But the truth is that, you know, we are seeing the
18
witnesses evolve their testimony now after preparation with
19
DOJ.
20
to the information that they provided when they were first
21
asked these questions about how they buy and what the market
22
is and the whole underpinning of this entire case is about
23
how entities buy advertising.
24
evidence to us or else we would not be here.
25
And the documents that pin these agencies in to the --
That is extremely valuable
We are going to spend an enormous amount of time,
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both at summary judgment and perhaps at trial, on this issue
2
of relevant market.
3
It's the threshold issue and the core to every civil
4
antitrust case.
5
clawbacks of testimony on this topic and documents on these
6
topics, and not only the immediate testimony of the federal
7
agency advertisers, the communications between the agency
8
advertisers and the ad agencies.
9
It just couldn't be more important.
And we -- the testimony -- there's been
These are ad agencies that the Department of
10
Justice has insisted this entire time they have no control
11
over.
12
agency advertiser, who's in no client relationship with the
13
Justice Department at this time, only gathering facts, not
14
opinion, reaching out to the agencies with whom they have
15
the existing contract with?
16
be privileged.
How can there be any privilege between the federal
17
THE COURT:
18
MS. DUNN:
19
THE COURT:
There's no way that that could
Why wouldn't that be work product?
Well, first of all -All right.
Let me put it in the
20
scenario of on January 28th of this year, an agency asked
21
for their advertiser to prepare information for them for the
22
purposes of this lawsuit at the direction of their lawyer,
23
and they aid them in preparing information and providing it
24
to their lawyer, do you say that isn't work product?
25
MS. DUNN:
I think it may be work product if it
22
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was at the direction of counsel in anticipation of a
2
litigation; however --
3
THE COURT:
All right.
Well, let's just assume
4
the date that I said, January 28th, was after this lawsuit
5
got filed.
6
MS. DUNN:
Right.
7
THE COURT:
8
MS. DUNN:
That's why I picked that date.
I think there would still be a close
9
call about the agency relationship in that circumstance.
10
And that is the same conversation that happens in cases
11
where a lawyer directly hires a PR firm or an investigator
12
or an accountant.
13
I think in this instance, it's actually not a
14
close call at all.
15
expressly testified that they understood that the Department
16
of Justice was gathering information, that they didn't
17
anticipate litigation, that the time when they began to
18
anticipate litigation was when the complaint was filed.
19
The witnesses in this case have
One of them said this was a standard request for
20
information; another said it was a routine request for
21
information.
22
which is what we have to go on, have uniformly testified --
23
24
25
And the witnesses that have testified so far,
THE COURT:
Let me -- we're not going to have any
note passing anymore.
MS. DUNN:
It's very distracting.
I'm sorry.
Apologies, Your Honor.
23
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THE COURT:
2
MS. DUNN:
Five times is enough.
The agencies have uniformly
3
testified -- the agencies have uniformly testified that they
4
did not anticipate litigation at this time, that this was
5
purely investigatory, that's how they regarded it, and
6
there's no contrary evidence in the record.
7
The only -- now, first of all, it is their burden,
8
as I'm sure we can all agree, and so they have put forward
9
the Wolin declaration.
10
Now, the Wolin declaration is one of the best
11
documents I think for Google in this record, and that's for
12
what it doesn't say.
13
were seeking legal advice.
14
information is opinion or mental impressions.
15
says it's factual information-gathering.
16
that any information was conveyed to the agencies such that
17
they would anticipate litigation.
18
Mr. Wolin directed the agencies.
19
It doesn't say that these agencies
It doesn't say that the
In fact, it
And it doesn't say
And it doesn't say that
Instead what it says is it says what the agencies
20
did were communications made in direct response to my
21
questions.
22
standard of privilege.
23
employee reaches out, somebody does something in response to
24
that request for information, and that all of a sudden is
25
within the very narrow zone of privacy that the privilege
Now, there is no direct response to my questions
It cannot be that a government DOJ
24
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2
cases recognize.
The entire point of this is to protect lawyers who
3
go out and hire agents to do part of their litigation work.
4
And that on the record we have, which is what the Court must
5
consider, and it's their burden.
6
We have agencies that say DOJ was not my lawyer, I
7
was not seeking legal advice, I didn't anticipate
8
litigation, the first time I knew about a complaint was when
9
it was filed, I didn't know I would be a witness in this
10
case and have no knowledge of being directed.
They say it
11
was a standard request for information and a routine request
12
for information.
None of that is privileged, Your Honor.
13
And I want to be very -- I want to be --
14
THE COURT:
15
MS. DUNN:
16
THE COURT:
Let me go back to that.
Yeah.
At least the testimony that I have
17
seen is this wasn't a standard request for information, I
18
have never gotten a request for that kind of information,
19
I've never dealt with them in the past.
20
testimony?
Is there contrary
21
MS. DUNN:
Yes, Your Honor, there is.
22
This is on pages 9 and 10 of our brief -- of our
23
reply brief, and on pages 10 and 11 of our reply brief.
24
I have the pages in the depositions marked here.
25
the cites for you, but they're in the brief.
And
I can pull
25
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1
2
THE COURT:
I'm looking -- I mean, I read the
depositions that you provided me last Friday.
3
MS. DUNN:
4
THE COURT:
Okay.
And the ones that were there last
5
Friday said, out of the blue, don't have dealings with them,
6
don't know about them, you know, this was not something that
7
I ordinarily do, this was unusual.
8
So you're saying that's --
9
MS. DUNN:
I'm saying that two out of the four
10
witnesses testified.
11
standard request; the other uses the phrase "routine request
12
for information."
13
One said it was -- they felt it was a
But also the point is, they weren't anticipating
14
litigation; it was a request from one agency to another.
15
Whether or not they hear from DOJ regularly, all of these
16
witnesses have said they weren't anticipating litigation.
17
And they've all said that -- they've uniformly testified
18
they didn't think they were harmed by Google.
19
circumstance where in order to create an attorney/client
20
privileged relationship, the client has to be seeking legal
21
advice.
22
with a lawyer for the purpose of seeking legal advice and to
23
know that they are seeking to be a client.
24
25
This is not a
They have to be communicating in a confidential way
THE COURT:
Or involved in a legal proceeding.
doesn't necessarily have to be legal advice.
It
Information
26
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1
relating to the legal proceedings.
2
MS. DUNN:
Right.
But the client has -- it's the
3
client's privilege, and they have to show that they are the
4
client, and they have to be seeking information from the
5
lawyer.
6
here.
That's the exact opposite of what was happening
7
These are the same kinds of communications as when
8
the government went out to myriad third parties, who we also
9
are deposing, as they did here.
10
And, Your Honor, just to be clear, the government
11
didn't make this outreach to these agencies, who are the
12
plaintiffs in their case and relevant for market and
13
damages, until that three- to four-week period from December
14
to January.
15
So we're just seeking the investigative material
16
to which we're entitled, and that's the same as in the rest
17
of the investigative file.
18
know, if they had reached out to the agencies before to
19
gather information, we would want that, too.
20
completely understand that at the time after the complaint
21
is filed, everybody should anticipate litigation, there's
22
been a publicly-filed complaint, and that is what the
23
witnesses testified to.
24
25
It's not -- we're not -- you
But we
I think if you look, Your Honor, at the cases
on -- that focus on the idea of work product, this is not
27
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really a close call.
2
the attorney has gone out to hire a PR firm or something
3
like this, or an accountant, or somebody to assist where
4
there's a direct retention.
5
third party who has a preexisting relationship to do some
6
sort of contracting work providing facts, which is what we
7
have here.
8
to that.
9
Like, the challenging cases are where
It's not a case where there's a
And we have cases that are cited in the brief as
But the DOJ's words speak the best themselves,
10
which is they have sent us correspondence saying these
11
agencies are independent.
They are not under our control.
12
We need Rule 45 subpoenas.
So it can't possibly be that
13
this is a situation akin to the harder cases where the
14
lawyer directly goes out and hires somebody to do their
15
legal work for them.
16
the facts are accessible to the other party, and what is
17
redacted is the opinion work product.
18
And even in those cases, the fact --
We have no problem with any redaction of mental
19
impressions.
20
is not a circumstance where the agencies are making
21
conclusions and recommendations for the legal work; they're
22
just providing information.
23
We do not think there will be any because this
And, Your Honor, I'm concerned that I haven't
24
convinced you that we need this information, and we really,
25
really -28
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THE COURT:
2
MS. DUNN:
3
I think it doesn't -- if no privilege applies,
4
Well -Yeah.
We really, really do.
we're entitled to it anyway.
5
THE COURT:
Well, you're the one who's saying it's
6
crucial.
And, again, I am, again, at a loss, honestly, as
7
to the substantive information about how they purchase their
8
advertising, whether they're a direct purchaser, what it is
9
and those kinds of things.
That --
10
MS. DUNN:
This is the -- sorry.
11
THE COURT:
No, I'll let you go.
12
you want.
13
14
Interrupt me all
MS. DUNN:
couldn't hear.
15
No.
No.
No.
I couldn't hear.
THE COURT:
I just can't -- I just
Go ahead.
The information concerning how they
16
purchased their advertising, whether it's directly or
17
through an agency, how that is done and how the process is
18
done to get whatever advertising that they do, that's all
19
information that is discoverable, and you should be getting
20
that.
21
information, that is substantive information about how they
22
get their advertising, then you should be coming in on a
23
motion to compel that.
24
25
And whether -- if you're not getting that kind of
The question is, you know, whether you get these
documents about some investigative information that they
29
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then determine whether to bring a claim or not.
2
they have a claim or not, you'll be able to litigate that
3
when you get the substantive information about how they get
4
their advertising, what kind of advertising they get, the
5
process that's been followed.
6
The same goes with the defamation.
And whether
You know, that
7
is going to be a legal issue that one has to get determined.
8
And what one person's agency thinks -- you know, you're
9
going to have experts; they're going to have experts.
You
10
know people don't understand this; they don't understand
11
that.
12
13
14
Somebody's going to have to make a decision.
But, again, I'm at a loss as to how you think that
is so crucial to your case.
MS. DUNN:
Your Honor, the information that was
15
gathered -- which, again, is not privileged, and so we are
16
entitled to it, regardless of substantial need in the first
17
instance -- is what the agencies said when they were asked
18
for facts in the first instance.
19
also is their communications with their ad agencies.
20
that has a probative value that is unlike after-the-fact
21
testimony.
22
And when it's -- and it
So
What they said initially to the DOJ about the
23
market, what they said in thoughtful responses about how
24
they purchase their ads and what markets they operate in,
25
and then the conversations they had with their own
30
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contractors with whom they work all the time about the ad
2
buying.
3
factual information to which we are entitled.
4
believe it is important for the following reasons, which I
5
will re-enumerate, because I believe that they are so
6
important.
That is what we expect to find, and it is only
7
And we
One is, market definition isn't just a legal
8
concept.
The legal standard is commercial realities.
So
9
the commercial realities that the government has injected in
10
this case is how these agencies are buying their ads and
11
what they consider to be the market and their interactions
12
with their advertisers.
13
And, by the way, we don't have enough depositions
14
to depose all those advertisers or all the agencies that the
15
government reached out to.
16
if we use them all for that.
17
the relevant market, and these are the parties that the
18
government has inserted as the commercial reality.
19
the first thing.
20
We just don't have enough, even
Okay.
So that is going to be
That's
The second thing is, if they don't -- if they are
21
not direct purchasers, there's no damages case as a legal
22
matter.
23
in what they provided to the government in the investigatory
24
stage.
25
purchaser in that circumstance; we don't want opinions.
And that information we expect will also be found
Only facts.
We only want to know who's the
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those are the kinds of questions we expect that they were
2
asked.
3
So it's possible that the government will have no
4
damages case, and on this basis alone, no entitlement to a
5
jury trial.
6
So we can't get to trial and test that.
THE COURT:
Okay.
Why don't you get those facts
7
through the normal course of discovery?
8
still haven't answered that question, I don't think --
9
MS. DUNN:
10
THE COURT:
11
12
And, again, you
Well --- whether they are or aren't a direct
purchaser.
MS. DUNN:
I will tell you, Your Honor, first of
13
all, we are trying to get those facts through the normal
14
course of discovery.
15
of discovery in every case like this, the government hands
16
over its investigative file.
17
discovery, and the government, as in the FEC v. Christian
18
Coalition has cited, the government is not allowed to take
19
advantage of privilege to keep back documents that would
20
ordinarily be given in discovery.
21
unfair advantage, and the cases say that that is not okay.
22
So, first of all, we -- this is the ordinary course of
23
discovery.
24
25
But, first of all, the normal course
That is the normal course of
That gives the government
Second of all, we're taking depositions, but
testimony is being clawed back.
So anything that was told
32
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to the government in this investigative stage, just the
2
facts, is not available to us, and that would be the normal
3
course of discovery.
4
Now, we can ask these questions, but as we point
5
out in our brief, sometimes the witnesses don't remember.
6
The documents, as recognized by the Booz Allen, other
7
courts, are important to refresh the recollections and to
8
remind, and also, frankly, Your Honor, for impeachment
9
purposes, because now the witnesses are being better
10
coached.
11
the answers have started to change.
12
They know what questions we're going to ask, and
So we need the documents in order to establish the
13
testimony and test the testimony that's going to go to the
14
very threshold issues of relevant market, of direct
15
purchasers and the not insignificant issue of damages and
16
whether they even exist and whether there should even be a
17
trial with a jury impaneled.
18
before the trial.
19
All of that has to happen
And so I desperately want to convince you of this
20
because I know how valuable this evidence would be.
And I
21
also think if Your Honor is unsure, we can submit to you in
22
camera the documents.
23
inquiry -- if I haven't convinced you, I don't even think
24
you get to the inquiry of how crucial it is, even though it
25
is, and we're so limited in our discovery if this is not
But I don't even think you get to the
33
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1
privileged.
2
And, at this time, the agencies themselves
3
disclaim any attorney/client relationship.
They disclaim
4
knowledge of anticipation of litigation.
5
harm.
6
acts on behalf of Google.
7
is not a case where this extends the lawyer's zone of
8
privacy.
They disclaim any
They say that they don't know of any anticompetitive
9
They don't think that.
So this
And I will remind everybody that, you know, it is
10
their burden to prove, and so in many cases in these
11
depositions, they instructed witnesses not to answer
12
questions that would have laid a predicate for privilege.
13
Were you directed by the DOJ?
14
the DOJ?
15
Did you get instructions from
Instruct not to answer.
And so all the Court really has, as far as
16
evidence -- we have, on our part, the testimony of the
17
witnesses that disclaim these bases of privilege, but what
18
the Court has is the Wolin declaration.
19
So with respect to the first category we're asking
20
for, which is communications between the DOJ and the FAA
21
lawyers and non-lawyers, what the Wolin declaration says is
22
that this is information for information-gathering purposes
23
for the investigation.
24
does not say mental impressions.
25
privileged.
Okay.
It does not say opinion, it
So Category 1 is not
It's the same as what has been handed over for
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1
any third party in the investigative file which was handed
2
over until the date of filing.
3
That's Category 1.
Category 2, what the Wolin declaration offers the
4
Court is the coms made in direct response to my questions
5
standard.
6
witnesses were instructed not to answer that question.
7
Note, does not say he directed their work.
And
There is no case that is findable by the DOJ where
8
the work product doctrine is used to shield fact-gathering
9
efforts from third parties not retained by counsel, much
10
less a third party previously retained not by counsel
11
expressly for a different non-litigation purpose.
12
cannot find a case that --
13
THE COURT:
You
That was a lot of -- go through that
14
one more time so I make sure I understand what your point
15
is.
16
MS. DUNN:
Okay.
Well, first of all, Your Honor,
17
I want to make sure, because there are three categories of
18
documents.
19
THE COURT:
20
MS. DUNN:
Right.
On Category 1, which is the
21
communications between DOJ Antitrust Division and FAA
22
lawyers and non-lawyers.
23
we're saying is, we only seek the prefiling fact-gathering
24
communications; not the kinds of material that work product
25
is meant to protect like opinion or mental impressions.
That's Category 1.
So there, what
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1
2
there's any, it can be redacted.
And DOJ concedes two things that is relevant to
3
the first category.
4
its investigative file.
5
they concede that.
6
the Antitrust Manual say we're entitled to this -- to the
7
stuff in that file.
8
9
Okay.
Thing 1 is, the coms are from
That's their opposition, page 3,
And the Antitrust Civil Process Act and
Okay.
The second concession that they make -- this is
Wolin paragraph 8 -- is that these coms are for
10
information-gathering purposes about digital advertising
11
purchases by federal agencies to aid in the Antitrust
12
Division's investigation.
13
THE COURT:
Okay.
So that's work product, to aid in
14
their investigation as to whether to bring a lawsuit.
15
That's the DOJ's -- they are getting information to make
16
considerations as to whether to file the lawsuit that
17
they've drafted.
18
19
MS. DUNN:
Your Honor, respectfully, it is not
work product --
20
THE COURT:
Why not?
21
MS. DUNN:
22
It is work product when the preparer of the
-- and I'll tell you why.
23
work -- so if you think about hiring like an accountant or a
24
PR agency, the preparer of the work has to face a claim or
25
potential claim.
So the preparer has to anticipate
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litigation.
2
agencies have universally testified they are not
3
anticipating litigation at this stage.
4
evidence that the DOJ told them that we're anticipating
5
litigation.
6
theory was right and that was work product, it would extend
7
to the entire investigative file, and there wouldn't be
8
statutes and manuals that say we can have it.
9
work product.
10
And, here, that is not the case.
Here, the
And there's no
These are factual inquiries.
And if the DOJ's
It is not
Work product is when a lawyer -- and these are
11
closed cases.
12
accountant, some agent to go do something for them, and that
13
person gathers information, and sometimes even then the
14
facts they've gathered are discoverable.
15
is, you -- they are the preparer -- and this is in RLI and
16
National Union and all of the cases on this -- that the
17
preparer has to face a claim or potential claim.
18
When a lawyer hires a PR person, an
And, here, that
Now, the main point I'm making on this, Your
19
Honor, is that these cases are just an ill fit.
Like, the
20
investigatory stage is not the stage when the agencies are
21
being deployed as if they're agents of the DOJ lawyers.
22
That is not what's going on.
23
the coms, you would see that they're just saying, hey, we're
24
looking for information.
25
going to litigate, do our work for us and report back.
And I think if you reviewed
They're not saying, please, we're
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That's not -- that was not the purpose, and that's not the
2
relationship between the preparer of information and the
3
Antitrust Division.
4
And, in any event, there's -- all the evidence in
5
the record is to the contrary, that they're not anticipating
6
litigation at this stage.
7
division expressly made this exact distinction in Booz Allen
8
where they say there's an investigative stage and a
9
post-filing stage.
And the same Justice Department
It was exactly the same thing.
And if
10
you look at the Judge's conclusions on work product in that
11
case, as I know you have, she doesn't take a long time with
12
them.
13
analog -- was seeking only the fact work product.
14
fact work product.
She says the other party -- in this case the Google
15
Only the
And so that's similar here.
THE COURT:
I mean, in that case, the Judge found
16
it was work product and that there was a substantial need
17
for it.
18
MS. DUNN:
19
Your Honor.
20
product.
21
Actually, in that case -- I apologize,
In that case, she did not find it was work
What she did was under -- let's look -THE COURT:
"The defendants have established a
22
substantial need and inability to secure factual information
23
about alternative needs.
24
work product."
25
MS. DUNN:
They do not need to get opinion or
She doesn't really decide.
She
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1
assumes -- at the beginning of the case, she assumes without
2
deciding about deliberative process and goes through the
3
substantial need analysis, which is very similar to this
4
case.
5
proceeds at breakneck pace.
6
DOJ a party.
7
It's an issue of relevant market.
The litigation
Oh, the other factor is, is the
Right.
And then -- and so she concludes in the context of
8
the deliberative process privilege that there's substantial
9
need.
And so by the time she gets to work product, all she
10
really says is that the defendants do not seek opinion work
11
product and do not challenge any redactions for mental
12
impressions.
13
questionable for mental impressions in camera.
14
And then she offers to look at anything
There's another case, Your Honor, I just want to
15
flag for Your Honor on the same topic, because a lot of this
16
I think does hinge on this distinction of opinion versus
17
fact.
18
In Re: Lumber Liquidators, in that case, there
19
were special tests performed during an investigation by
20
previously hired agent, and even those did not qualify as
21
opinion; those still qualified as facts.
22
even asking for recommendations or opinions; we're just
23
asking for the factual information that the agencies gave.
24
So that's Category 1, and I'm glad, actually, to
25
Here, we're not
have looked at the Booz Allen case on substantial need,
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because I think this issue of the government being a party
2
is obviously present here and relevant to that -- to that
3
calculus.
4
need -- she goes into detail about why you would want
5
documents for use in depositions.
6
The same with the limited depositions and the
That's Category 1.
Category 2 is communications between the FAAs --
7
oh, I should also say, Category 1 includes communications
8
with FAAs and non-FAAs.
9
end up being damages-seekers or parties in this case.
They're agencies that don't even
10
they're just third parties.
11
obviously very hard to distinguish that from any third
12
party.
13
So
So that seems -- you know,
Category 2 is communications between the FAAs and
14
their ad agencies.
Now, this is -- this is where I was
15
saying that there's no case where the work product doctrine
16
will be used to shield a third party's fact-gathering
17
efforts that are not retained by counsel, and when the agent
18
is previously retained not by counsel for an entirely other
19
purpose.
20
agencies are not under their control, they're independent,
21
and that the only contract that exists is for digital ad
22
purchases.
And the DOJ has communicated to us that these ad
23
So this -- you couldn't -- they have not cited
24
any, and I can't actually imagine a case where an agency
25
previously hired for a non-litigation purpose, not by a
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lawyer, not doing anything having to do with the litigation
2
that's gathering facts at an agency's request, somehow that
3
ends up being privileged.
4
THE COURT:
Well, privileged or protected under
5
the work product doctrine.
6
cases --
7
MS. DUNN:
8
THE COURT:
9
MS. DUNN:
That's the issue, and there are
Your Honor --- that do that.
-- I'm unaware of any case.
I mean, I
10
would be happy to discuss any case, but I have not seen any
11
case.
12
very good correction; I apologize -- where there's an agency
13
previously hired for a non-litigation purpose by a
14
non-lawyer that's just gathering facts, not opinions and not
15
recommendations, and that that is somehow attorney work
16
product within the zone of privacy.
17
layer on that -- this investigative phase and the fact that,
18
you know, the investigative file is required to be turned
19
over, I don't -- it's very hard to imagine that that could
20
be work product.
21
And I am talking about work product -- that was a
And I think when you
The third category is a small category, it's
22
interagency communications with no lawyer on them.
So we
23
are not seeking any interagency communications between the
24
agency lawyer and the agency employees.
25
obviously be privileged.
Those would
But, here, there are some
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1
communications which are coms between agency non-lawyers
2
that would not be privileged.
3
And that's not a huge number.
For both Category 2 and Category 3, the record is
4
the Wolin declaration where he says coms made in direct
5
response to my questions.
6
concept of work product and privilege that somehow the DOJ
7
can call -- the Antitrust Division can call somebody up, ask
8
for facts, and then anything that that triggers -- if that
9
triggers a call to a contractor to get facts, that that is
And this is a very sweeping
10
within the zone of privacy of the attorney work product,
11
especially in the Fourth Circuit where every case -- as I'm
12
sure Your Honor is aware, as every case stresses how the
13
privilege is narrowly construed and limitedly recognized.
14
And so this is -- you know, it's sort of like a
15
seriatim theory of privilege where if they ask for facts in
16
their investigative stage, don't say, you know, not in
17
anticipation of litigation from the point of view of the
18
preparer, that those communications and then every
19
communication down the line ends up being privileged.
20
I don't know if Your Honor is interested in
21
hearing about the deliberative process privilege, but the
22
cases on that are Ethyl Corp. v. EPA, Moore-McCormack Lines,
23
both Fourth Circuit cases.
24
within the deliberative process, it really -- the
25
deliberative process privilege is really concerned with the
42
And those make clear that to be
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exercise of policy discretion.
2
that the Booz Allen Court confronted.
3
an entire balancing test that the government just entirely
4
ignores.
5
the need for documents in a deposition.
6
of their brief.
7
that the materials at issue have to bear on formulation or
8
exercise of policy-oriented judgment.
9
how the deliberative process privilege is generally
10
And this is also an issue
And she went through
They say that the Booz Allen case is only about
That's Footnote 8
But she cites to Ethyl Corp., which says
And that's, you know,
understood.
11
THE COURT:
12
MS. DUNN:
Okay.
Anything else?
Not if Your Honor does not have any
13
questions.
14
enumerate for Your Honor at some point what we are seeking.
15
We have --
16
17
I also do not know if it is helpful for me to
THE COURT:
Well, you've said that in your briefs;
right?
18
MS. DUNN:
Yeah.
Thank you.
19
THE COURT:
20
MS. CLEMONS:
21
The Department of Justice is empowered by statute
I'll hear from the government.
Thank you, Your Honor.
22
and regulation to be counsel to the United States and its
23
component agencies.
24
the authority to bring claims on behalf of the United States
25
and has delegated that authority to the Antitrust Division
43
And the Attorney General is vested with
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for the purposes of bringing antitrust claims, specifically
2
at issue in this particular motion, the antitrust claims for
3
damages on behalf of the United States and its component
4
federal agencies when it's injured in its business or
5
property by antitrust violations.
6
So counsel for Google mentioned that they agree
7
that intra-agency counsel, the in-agency counsel,
8
communicating with employees of a federal agency are
9
attorneys for that federal agency and that those
10
communications are privileged but compares the Department of
11
Justice, which is statutorily retained, essentially, to be
12
the lawyers for the United States and its agencies,
13
discounts that relationship, that attorney/client
14
relationship, between the Department of Justice and the
15
agencies.
16
The Department of Justice was providing advice and
17
counsel to these federal agencies regarding damages in this
18
case.
19
THE COURT:
Where do I have that in the record?
20
Other than what -- I mean, you've got testimony of people
21
who say out of the blue, didn't know anything about it,
22
never heard anything about this lawsuit until it got filed.
23
24
25
MS. CLEMONS:
Certainly.
Your Honor, they're the
individual employees.
THE COURT:
Well, these were taken -- it wasn't
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clear, but counsel for Google represented that these were
2
30(b)(6) deponents.
3
Is that not right?
MS. CLEMONS:
Your Honor, the first 30(b)(6)
4
deposition of any federal agency occurred this morning.
5
was on my way to the courthouse.
6
THE COURT:
7
MS. CLEMONS:
8
9
I
So these are not 30(b)(6) depositions?
These are not 30(b)(6) depositions;
these are depositions of individual employees.
And, in any case, I imagine that the individual
10
employees working at Google that may have gathered facts and
11
information and communicated with counsel for various
12
purposes related to this litigation were not aware -- fully
13
aware of Google's counsel's strategy with respect to this
14
litigation.
15
But that does not change the fact that these were
16
communications by counsel for the United States with
17
employees of the United States to gather information to
18
provide legal advice to the United States as to the scope of
19
its damages claims after a complaint was already drafted, as
20
is mentioned in the Wolin declaration, and it was after
21
there was already an exploration into whether and to what
22
extent the government would be seeking damages for injury to
23
its business or property.
24
25
These -- every single communication and material
that Google is requesting be compelled with this motion is
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within that time frame, was made for not just the purpose of
2
litigation, but for the purpose of this specific litigation,
3
these specific damages claims, and for the purpose of the
4
United States to be able to -- or the Department of Justice
5
to be able to advise the United States and its component
6
agencies with respect to the scope of those damages claims.
7
THE COURT:
Well, help me understand the
8
difference as to why that isn't just part of the
9
investigative file that you turned over for everything else.
10
I mean, if that's -- if that's the argument you're making,
11
why doesn't it include the entire investigative file?
12
MS. CLEMONS:
So the entire investigative file is
13
information gathered throughout the course of the
14
investigation, but the information gathered from these
15
specific agencies that were the subject or could have been
16
the subject of the damages claims in this case is classic
17
attorney/client communication, not broad investigation.
18
There's no allegation from Google or information anywhere in
19
the record that these were just general investigatory
20
processes, right, that we --
21
THE COURT:
The heading of the emails that are in
22
the privilege log says request for information, something
23
vague like that.
24
information about certain topics.
25
MS. CLEMONS:
It's not like give me some factual
Many of them do, Your Honor, yes,
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but that does not change the fact that those
2
communications -- the information was being gathered for the
3
purposes of providing legal advice to the United States; it
4
was being gathered about --
5
THE COURT:
When did the attorney/client
6
privileged -- when do you say that there was an
7
attorney/client relationship with these agencies?
8
that established in your view?
9
MS. CLEMONS:
When was
So the United States Department of
10
Justice has an attorney/client relationship with the United
11
States.
12
with the United States for the purposes of advising on
13
damages and potential damages, injury to the United States
14
business or property and whether that supports a damages
15
claim under the Clayton Act, Section 4A.
16
It specifically has an attorney/client relationship
You know, there's no need for Your Honor to get to
17
the broader question of when, under a bunch of hypothetical
18
circumstances, attorney/client privilege may or may not
19
attach, because attorney/client privilege was definitely
20
attached at the point that the Department of Justice was
21
speaking with these federal agencies about these specific
22
claims and formulating and determining the scope of damages.
23
THE COURT:
How do I know that?
24
telling me it's true, so it is true?
25
I'm trying to understand.
You're just
I mean, I don't know.
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I know you ended up filing a lawsuit on their
2
behalf in January, but I don't know when it was that that
3
relationship actually was consummated, so-to-speak.
4
5
6
7
MS. CLEMONS:
That relationship already existed,
Your Honor.
THE COURT:
Well, you know, obviously you
represent agencies in a lot of different matters.
8
MS. CLEMONS:
9
THE COURT:
Yes.
And the attorney/client relationship
10
in one matter doesn't necessarily carry over to every matter
11
that you're being investigated at any point in time.
12
you know, there has to be some point where you, I guess,
13
make a determination that, you know, you're now, you know,
14
stopping the investigation and starting the trial
15
preparation material and we're having attorney/client --
16
and, you know, the Booz Allen case is one that, you know, I
17
think is favorable to Google in that regard.
18
that point said, okay, maybe not attorney/client up until
19
the time the lawsuit was filed, but certainly you've got
20
work product and deliberative -- you know, these other
21
things that are involved here.
22
So,
Because DOJ at
So I'm just trying to understand what it is that
23
your position is as far as why those communications would
24
necessarily be attorney/client information.
25
MS. CLEMONS:
Because the United States Department
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of Justice, specifically the Antitrust Division, is charged
2
with developing and identifying and advising the United
3
States and its component agencies with respect to whether
4
there are claims for damages for antitrust violations.
5
so when the United States Department of Justice determines
6
that there may be a violation that has damaged the United
7
States and its business or property, the communications in
8
order to provide legal advice with respect to whether those
9
claims exist and the scope of those claims is communication
10
11
And
within the attorney/client relationship.
THE COURT:
Even though the client doesn't know
12
what you're doing or asking for the information?
13
it be an attorney/client relationship if the client doesn't
14
know what the reason is behind the request?
15
MS. CLEMONS:
How could
The client in this case, Your Honor,
16
is the United States, and the client, the United States, was
17
well aware of the reason behind the request.
18
know, the Wolin declaration testifies to that fact, but --
19
THE COURT:
And the -- you
Well, who's the -- if the client is
20
the United States, then who -- I mean, DOJ is the lawyer,
21
and the United States is the client?
22
analysis is?
23
MS. CLEMONS:
Is that what your
Yes, Your Honor.
And that is --
24
that is set out in 23 U.S.C. 516 that the Attorney General
25
is the lawyer for the United States.
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And for this specific purpose of evaluating
2
whether -- whether and to what extent damages claims could
3
be brought on behalf of the United States, the
4
communications between the United States' counsel and the
5
components of the United States that may have been injured
6
are classic attorney/client communications and investigation
7
of claims that the United States was seeking to bring.
8
9
10
THE COURT:
What are your requirements to turn
over information in the investigative file?
MS. CLEMONS:
So we do have -- under the Antitrust
11
Division Manual and Civil Process Act, we do have
12
obligations to turn over facts gathered -- certain facts
13
gathered during the investigative phase, but there is no
14
obligation to turn over attorney work product or
15
attorney/client communications.
16
I think it's worth noting, Your Honor, that every
17
single document and set of materials that Google has
18
challenged would not have been created, not only but for
19
this litigation, but, but for the very specific need for the
20
Department of Justice to provide counsel to the United
21
States and these specific agencies regarding the scope of
22
potential damages claims in this case.
23
THE COURT:
And why -- help me understand your
24
argument about those that you're not seeking damages being
25
different from those you're seeking damages.
What's your
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position there?
2
so-to-speak.
3
Because they're obviously not parties,
MS. CLEMONS:
They are not parties, but the reason
4
that they are not parties is because of strategic decisions
5
made by counsel for the United States and advice provided to
6
the United States and those agencies with respect to whether
7
or not they should be parties.
8
sort of purposes for purpose of discovery in this case.
9
THE COURT:
Parties for the purposes --
What limitations, if any, has the
10
United States put on the ability of Google to obtain
11
information about how ads were purchased, the relationship,
12
whether, you know, the agencies are direct purchasers?
13
again, I'm sort focusing on the substantive information as
14
to how that advertising process works.
15
MS. CLEMONS:
None, Your Honor.
And,
And the
16
depositions that have been taken of individuals so far have
17
focused in large part on information such as the ordinary
18
course of their advertising purchases and their
19
relationships with their ad agencies.
20
The government -- the federal agencies have
21
produced, through the United States Department of Justice,
22
millions of pages of documents that describe the ordinary
23
course, use and understanding of their purchases of
24
advertising.
25
The facts that Google is claiming are just facts
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are really work product material that they're seeking that
2
show the mental impressions of counsel and the strategic
3
decision-making of counsel regarding which facts to gather
4
in order to assess the specific damages claims on behalf of
5
those agencies, which facts were important to that
6
determination.
7
There is -- Google has not, you know, met its
8
burden to show that these facts, facts about market
9
definition, for example, are not otherwise available.
They
10
have asked questions during depositions.
I presume they
11
will continue to ask questions during depositions that go to
12
those very issues.
13
not only from the United States and those federal agencies,
14
but from countless third parties related to this litigation
15
as well.
And they have been receiving information
16
THE COURT:
Let me just ask you this scenario.
17
If you have a document request -- and I think it's
18
Number 12 that asks about ad buys and things like that.
19
you have been provided information from an advertising
20
agency about ad buys and it's within your -- and it just
21
shows this is the information about ad buys, why wouldn't
22
that be information that should be produced and provided to
23
the defendant in this case?
24
25
MS. CLEMONS:
If
Where that information was very
specifically requested by counsel of its client, not by
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counsel just going out to the ad agency asking for general
2
information, but information the client was gathering for
3
counsel in order to render legal advice.
4
that information, the scope of what information was
5
requested, and the format in which that was requested, do
6
reveal the strategy, the legal impressions of counsel as to
7
what is important.
8
9
The composition of
There is -- there is not a clear black-and-white
line between fact work product and opinion work product when
10
the -- when counsel is asking for compilation of certain
11
facts in certain ways in order to render legal advice.
12
in this case, the ad agencies -- the very limited
13
communications with ad agencies by the federal agency
14
employees about the types of information that those ad
15
agencies were contracted to retain and be knowledgeable
16
about on behalf of those federal agencies.
17
18
19
THE COURT:
completely.
Well, I'm not sure I understand that
Help me -- go back over that again.
Request Number 12, you know, purchase of open web
20
display advertising and the use of the advertising.
21
have information that has been provided to you by your
22
advertising agencies relating to that request.
23
24
25
And,
So you
You say you don't have to produce that
information?
MS. CLEMONS:
Your Honor, anything provided in the
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ordinary course of business -- and there are millions of
2
documents provided in the ordinary course of business -- is
3
being turned over through discovery.
4
small subset of information, information gathered with the
5
assistance of an advertising agency to put together
6
responses by the federal agent client for counsel at -- made
7
at the request of counsel.
8
THE COURT:
This is a very, very
You still have the obligation to
9
provide that information; right?
10
MS. CLEMONS:
11
THE COURT:
12
possession, custody or control.
13
you've gotten that information, and it's now within your
14
possession, custody or control, they're asking for it.
15
That information --
The information is now within your
MS. CLEMONS:
You've reached out and
They are asking for it, Your Honor,
16
but it is -- it is protected work product, and we have -- we
17
have obligations to log protected work product, and if there
18
are facts that Google believes that it cannot get any other
19
way -- facts, not opinions, not discussions with counsel,
20
not determinations of what counsel thought was important in
21
that moment to assess its claims, but facts -- then those --
22
then those facts -- they have to show that they can't get
23
those facts in any other way.
24
25
And if the fact is the amount of purchases,
there's innumerable sources of evidence for the amount of
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purchases.
2
the -- just the numbers, right, or something like that.
3
They are asking for all of the communications, all of the
4
documents created at the request of counsel by federal
5
agencies with the assistance of their ad agencies.
6
is a very, very limited subset of information gathered, not
7
for the purpose of generally investigating the case, but for
8
the purpose of assessing with respect to that federal agency
9
whether and to what extent the United States was injured in
10
11
The real fact -- they're not just asking for
And this
its business or property.
THE COURT:
So you're saying that any time a
12
lawyer asks for someone to get them information and it's
13
sent to the lawyer, that lawyer doesn't have the obligation
14
to then provide that information, whether in the same format
15
or whatever, in response to a discovery request?
16
MS. CLEMONS:
To be clear, Your Honor, it's not
17
any time a lawyer asks for any information and any
18
circumstance.
19
work-product issues are very fact-specific and
20
circumstance-specific.
21
Right.
All of these privilege and
But the compilation and curation of specific
22
pieces of information that reveal the counsel's strategy and
23
information that they thought was particularly important for
24
assessing a particular legal issue, that is work product.
25
It's the -- it's -- the underlying facts are not
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themselves protected outside of that circumstance, but when
2
they've been put together into a piece of work product that
3
cannot be separated from the request of counsel and the
4
purpose of counsel, then they are protected.
5
And the questions that have -- many of the
6
questions that have been asked during the depositions that
7
have occurred so far have not just been did the Department
8
of Justice direct you with respect to information-gathering;
9
they've been specific questions about what the Department of
10
11
12
13
14
Justice wanted.
THE COURT:
Well, you've told them not to answer
those questions, too, some of them.
Did you get instructions -- you instructed them
not to answer those kinds of questions; right?
15
MS. CLEMONS:
16
specific pieces of information.
17
sitting in front of a witness saying did your -- did your
18
counsel direct you to get this document or this specific
19
information from some specific source.
20
When the questions were about
Right.
So a document
But I want to -- I want to emphasize, Your Honor,
21
that these are -- these -- you know, this issue of facts
22
gathered under these very limited narrow circumstances for
23
these limited narrow purposes from ad agencies is only a
24
very small portion of what Google is seeking to compel here,
25
which is all of the communications between the Department of
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Justice and its clients, between -- and work product and
2
information created for the purpose of assessing the damages
3
claims in this lawsuit.
4
THE COURT:
Okay.
5
MS. CLEMONS:
Google is also requesting that we
6
now log -- this is part of their motion, that the Department
7
of Justice log every communication with just counsel for
8
these agencies to the same ends, presumably, so that they
9
can try to determine what counsel's strategy was and opinion
10
work product.
11
THE COURT:
Thank you.
12
Ms. Dunn, anything else you would like to add?
13
MS. DUNN:
14
Your Honor, with the Court's indulgence, I'll
Yes, Your Honor.
15
start with the government started, which is it sounds like
16
their position is that all federal agencies are clients all
17
the time.
18
to that.
19
Jackson; and the other is the Stonehill case.
20
of those cases, they recognize that the Department of
21
Justice, when there's a suit brought, is the lawyer for the
22
agency, but the Cayuga Nation case in particular recognizes
23
that the statute is permissive as to whether the Department
24
of Justice may be sent to attend to the interests of the
25
United States.
And there are two cases that we cite with respect
One is Cayuga Nation, an opinion by Amy Berman
And in both
And so it is simply not the case that at all
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times all agencies are in a client relationship with the
2
Department of Justice for the purpose of the attorney/client
3
privilege.
4
normally applies has to be applied where the client has to
5
be knowing that it's seeking legal advice, a confidential
6
relationship.
7
And, in fact, the cases say that the test that
Now, the Department also said that the DOJ was
8
providing advice.
The Wolin declaration never says this,
9
and this is nowhere in the record.
10
burden.
11
that.
12
documents.
13
their advice.
14
the record is there evidence.
15
Again, this is their
If the DOJ does provide advice, they could redact
I don't think that's what will be found in these
But that's not what we're seeking; we don't want
But, again, it's their burden.
Nowhere in
And, in fact, the Wolin declaration is very
16
particular in not saying that.
17
information-gathering exercises.
18
are -- you know, it doesn't even say there's an
19
attorney/client relationship.
20
because -- presumably because it wasn't the case.
21
if they could say those things, they would be in the
22
declaration.
23
It talks about these were
It does not say these
It does not say those things
I think
Now, with respect to anticipating litigation, the
24
Department's responsible.
The United States was aware.
25
Well, under the cases, that's not sufficient.
So, first of
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all, the rule itself says it's the party's representative --
2
either the party or the party's representative, right, is
3
going out to create this work product.
4
has struck me as I've read all these cases, Your Honor, is
5
it talks about work product being prepared.
6
about it being prepared.
7
RLI that are in the Fourth Circuit, they talk about the
8
preparer needing to anticipate a claim, anticipate
9
litigation.
10
And one thing that
It's always
So the cases National Union and
So these cases are even an ill fit, and the rule
11
is an ill fit because it's not -- here we don't have a party
12
representative going out to do work for the attorney, as the
13
case generally applied to; we have an information-gathering
14
exercise from an entity that -- where the witnesses have
15
uniformly testified they are not anticipating litigation.
16
So it's -- even by -- even if Your Honor decides
17
the work product rule applies, notwithstanding the fact that
18
these are not party representatives out to do work for the
19
lawyer, the preparer has to be aware under Fourth Circuit
20
precedent.
21
I think the other statement by the DOJ that
22
highlights the untenability of their position under the law
23
is the idea that non-party agencies are clients.
24
third parties.
25
were really sources of information.
These are
They're not parties to the lawsuit; they
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Now, I do think it is helpful that -- I heard the
2
Department counsel acknowledge their obligation to hand over
3
the investigatory file, and --
4
THE COURT:
5
investigatory file.
6
MS. DUNN:
7
Yes, Your Honor.
Except for
information that is privileged.
8
9
Non-privileged information in the
But there is no argument from the Department that
contradicts the record evidence that they have provided that
10
this is fact-gathering.
11
been pointed to in the record -- again, it's their burden --
12
that says these are anything beyond facts that are being
13
gathered.
14
There's really been nothing that's
Now, I want to also point out, we are not aware of
15
any compilation of a unique mix of information that counsel
16
just referred to.
17
just responding with information that they had based on
18
their experience and that their agencies had.
19
declaration sets out the standard of comments made in direct
20
response to my questions.
21
will be compilations by agency lawyers designed for
22
litigation; they're really just the facts, and that's what
23
we're interested in.
24
25
We really believe these agencies were
And the Wolin
So we don't expect that these
To Your Honor's question about has the government
been providing us with all the information that we need, we
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have asked three times for them to supplement Rog.
2
Number 14, which is about direct purchases of open web
3
display advertising from counsel.
4
response is, FAAs purchase ad tech services.
5
And to date, the DOJ's
So we are not getting all the information that we
6
need, and I -- but I do stand by my prior argument that
7
given that we are going to have a trial in this case, and we
8
are going to have -- these are our witnesses.
9
eight agencies that they have injected into this lawsuit.
These are the
10
They are who we have.
11
market -- and these are the -- you know, these are the
12
people we have, they're on the correspondence.
13
the people that are going to establish what the basis of the
14
government's case is as far as ad purchases and ad buying.
15
And their experience in the ad
These are
So we can ask questions of them, and we do,
16
obviously, but I really don't think it can be overstated the
17
importance of documents and communications and facts that
18
were -- that were provided -- to which we're statutorily
19
entitled -- when asked these questions in the first
20
instance, and the communications of the agencies that are
21
responding.
22
witnesses in, and we have to have a way to remind the
23
witnesses what they're talking about.
24
25
I mean, we have to have a way to hem the
So I do think that, you know, we can just have
examinations without documents, but, Your Honor, documents
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are very important when you're examining witnesses on the
2
stand, as I know Your Honor knows.
3
no exception when these are witnesses prepared by the
4
government seeking damages.
5
them.
6
And here is going to be
We need to be able to examine
So I -- one other piece I want to respond to is
7
this idea of opinion work product, because it did sound like
8
the Department of Justice is taking the position that when
9
their lawyer asked a question, everything that came back
10
reflected his mental impressions and his decision-making.
11
Their Opp. 7 says:
"Information in the
12
communications included the nature and extent of purchases
13
of digital advertising by agencies."
14
purchases."
15
we're looking for.
16
"Nature and extent of
That's from their opposition.
That's what
That is not mental impressions.
Wolin paragraph 8:
"Communications undertaken to
17
gather information about digital advertising."
And I will
18
say, one of the reasons that the balancing test that the
19
Court goes through for the deliberative process privilege
20
and that the Booz Allen Court did talks about whether the
21
government is a party.
22
gathers information, that is discoverable by the other
23
party, and they don't want to give the government a leg up
24
because it's -- just because it's the government when it's a
25
litigant.
And that's because when any party
And here in this case, it's not just a litigant;
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it's a damages-seeking litigant.
This is a civil case for
2
damages; these are the damage-seekers.
3
So, in any other case, if we were not sitting
4
across the table from the Department of Justice and the
5
agencies who are seeking damages, we are just a
6
damages-seeker and they had information that was the facts,
7
we would be entitled to that.
8
disadvantaged in this civil litigation, and that is why that
9
is a part of the balancing test of substantial need, in
And so we should not be
10
addition to the idea that, you know, as Judge Brinkema said
11
when this case set off, it's breakneck pace.
12
depositions all the time.
13
And we can't possibly depose all the federal agencies that
14
gave information to the DOJ, we can't possibly depose all
15
the ones that aren't parties, as well as the ones that are
16
parties, and we truly cannot possibly depose all the ad
17
agencies as well.
18
So it's just not feasible to do that.
19
We are in
We don't have that many of them.
I mean, we have 20 non-party depositions.
So, Your Honor, those are the primary points I
20
wanted to get to in rebuttal.
21
any additional questions.
22
began, which is, I assure you, Your Honor, we would not be
23
here if we didn't think this was crucial and if we thought
24
we could just make up for all of this at trial.
25
I'm happy to answer obviously
But I really want to end where I
It's -- you know, in order for experts to opine on
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1
relevant market, they need facts in the record at trial.
2
order to present the issue to the Judge eventually upon
3
relevant market -- which if their relevant market is wrong,
4
this whole case goes away.
5
those communications where, you know, the one analogous
6
communication we have by the OIG, the one you saw, the
7
government is saying to the agency, the agency doesn't know
8
what they're talking about when they say third parties, and
9
the government says, no, we're not asking about Facebook or
The whole case goes away.
In
And
10
Amazon or TikTok -- they mention at least two of those
11
three, maybe all three -- we don't want your information
12
about those, even though that's what the agency might think.
13
That communication goes directly to what we need
14
to show about relevant market.
15
market, and they're -- it's not going to be every witness in
16
the market.
17
that's who we have, and that's who they have put into this
18
case.
19
These are people in the
These agencies are in the market.
Okay.
And
And so if there are more documents like that in
20
this pile -- which I hope, Your Honor, if there's any
21
ambiguity, would review them in camera.
22
documents that are saying by the government, we don't care
23
about Facebook, that's not something that we conclude in the
24
market, that goes directly to our contesting the market that
25
they have established.
If there are
And when the agencies say that's not
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who we think of when we think about third parties, that's
2
not how we go about ad buying.
3
back who ad buy for a living -- who we can't depose all of
4
them because of limited depositions -- and they say the same
5
thing, that is critical evidence that we need for this case,
6
Your Honor.
7
And when the agencies come
Look, it's a hard case, and the critical issues --
8
and it's not just a hard case; it's a case that is going to
9
define permanently -- it's a path-breaking case that will
10
define permanently what this market looks like.
11
know, the government is seeking to break up the company.
12
And as you
So this is not a light ask that we're making.
13
These documents go directly to that, to that critical issue
14
of market.
15
available to them.
16
out.
17
direct purchasers, information we cannot get, apparently,
18
through our interrogatories.
19
It goes directly to whether a jury is even
We can't even get to trial and work this
We need to know beforehand whether or not they hire
So I don't want Your Honor to think that these are
20
not -- what we said is true; there's a reason we put it in
21
the first paragraph.
22
defense of the case on both the damages component and also
23
the case overall, because there's no civil antitrust case
24
that can go forward without the government proving its
25
relevant market.
It is crucial, we believe, to our
And so far in the analogous documents
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we've seen, they can't.
2
And having one document between one OIG and one
3
agency is fine, we're happy to have that one, but if there
4
are more out there for these agencies and how they reacted
5
when they were presented with, you know, this concept,
6
that's, like, you know -- that's extraordinarily probative
7
for us.
8
And we really appreciate Your Honor's time today.
9
THE COURT:
10
about 30(b)(6) depositions or not?
11
12
MS. DUNN:
I apologize, Your Honor.
THE COURT:
14
MS. DUNN:
15
THE COURT:
That's all I have.
Yeah.
Well, I think I have a slight
better understanding of what the issues are in this case.
MS. CLEMONS:
18
THE COURT:
19
MS. CLEMONS:
20
THE COURT:
22
I apologize.
Okay.
17
21
We are
taking -- I was incorrect about the --
13
16
Were the depositions we were talking
Your Honor, if I could just --
No.
No.
They're the movant.
Okay.
You had your argument; they had their
reply.
I'm going to end up having to take this under
23
advisement.
If I want to have additional argument next
24
week, I'll let you know by Wednesday, otherwise I'll try and
25
rule on the papers at some point, but I'm not prepared to do
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it today.
2
out what you all are really getting at in this case.
3
There's too many open issues to try and figure
So I'll let you know by Wednesday if, in fact, I
4
need more argument on this in addition to the other motions
5
that are currently scheduled for next Friday as well.
6
Hopefully they may not be necessary, but just let me know on
7
that front.
8
9
I also want to let you know, I'm not hearing
motions on the 8th of September.
So to the extent you have
10
planning purposes or things like that, I'm not having court
11
on Friday the 8th.
12
13
I'm going to take a five-minute recess to take up
my other matter.
Thank you.
14
(Proceedings adjourned at 12:33 p.m.)
15
----------------------------------
16
I certify that the foregoing is a true and accurate
17
transcription of my stenographic notes.
18
____________________________
19
Stephanie M. Austin, RPR, CRR
20
21
22
23
24
25
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