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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
v.
No. 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
GOOGLE LLC’S MEMORANDUM IN SUPPORT OF ITS
MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND TESTIMONY WRONGLY WITHHELD AS PRIVILEGED
Plaintiff United States (“Plaintiff” or “the government”) is withholding two categories of
evidence based on improper assertions of work product, attorney-client privilege, and/or
deliberative process privilege, thereby depriving Google of factual information crucial to its
defense in this case:
The first category of improperly withheld evidence consists of pre-litigation
communications reflecting outreach by the Antitrust Division of the Department of Justice
(“ATR”) to federal agencies, including non-party agencies with which ATR has no attorney-client
relationship and on whose behalf it is not seeking damages. Plaintiff has improperly asserted work
product, attorney-client privilege, and deliberative process privilege over these communications.
Yet these pre-litigation communications with federal agencies for fact gathering purposes are no
different from the discoverable intake that a plaintiff firm does on potential clients or claims before
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any attorney-client relationship is formed. They are also no different from ATR’s pre-litigation
communications with any other non-party to this case, which ATR has produced as part of its
investigative file. There is no basis to treat these communications with federal agencies any
differently from communications with other non-parties.
The second category of wrongfully withheld evidence consists of pre-litigation
communications between non-lawyers at federal agencies and their advertising agencies relating
to this lawsuit, over which Plaintiff asserts work product protection. The communications between
federal agencies and their advertising agencies are likewise not protected from disclosure. There
is no attorney-client relationship between a federal agency and its advertising agency, and the
communications likewise cannot be considered work product because the advertising agencies are
not ATR’s agents. The advertising agencies were retained by federal agencies in the ordinary
course of business—not by the ATR for litigation purposes. There is therefore no agency
relationship between ATR and the advertising agencies, a prerequisite for work product protection
to apply.
The withheld documents are significant because they show that the way that Plaintiffs have
defined the relevant antitrust markets in this case—markets for products relating to “open web
display advertising”—is entirely contrary to the commercial realities of how federal agencies
purchase advertising, including the federal agencies on whose behalf ATR is seeking damages, the
Federal Agency Advertisers (“FAAs”). The withheld documents also show that the damages
claims that Plaintiffs have asserted were an afterthought; the motivation behind ATR’s case was
not to recoup costs on behalf of any FAAs. Although ATR conducted a sweeping investigation
for over three years, its pre-litigation communications with FAAs show that it was not until the
eleventh hour that it even bothered to reach out to any FAAs to try to construct a damages claim
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(presumably as a basis to seek a jury trial).
Plaintiff has desperately sought to shield this non-privileged information from discovery—
and disclosure to the public—under the cloak of privilege. Google had planned to include in this
motion the deposition testimony from two FAA witnesses which establishes that there is absolutely
no factual predicate for Plaintiff’s privilege claims. But, on the day that Google was finalizing its
motion for filing, ATR sent Google a letter clawing back not just portions of the deposition
transcripts, but both transcripts in their entirety—even though one deposition took place eight days
ago and another three days ago with an ATR attorney present at each. Ex. 1 (August 18, Letter from J. McBirney to E. Mahr, et al.). Because Google disagrees that ATR has any basis to
claw back any portion of the deposition transcripts, much less the entirety of the transcripts, Google
is submitting for the Court’s in camera inspection the transcripts with the relevant portions
highlighted.
Accordingly, Google respectfully requests that the Court order Plaintiff (1) to produce the
communications listed on ATR’s June 26, 2023 privilege log between ATR and non-attorney
employees of federal agencies; (2) to produce an itemized privilege log for all pre-litigation
documents reflecting communications between ATR and counsel for any FAA that are responsive
to Google’s Requests for Production; (3) to produce documents wrongly clawed back during the
deposition of an FAA witness and in recent letters, and (4) to permit Google to examine FAA
deponents on their communications with advertising agencies related to this lawsuit.
I.
BACKGROUND
A.
Plaintiffs Are Withholding Pre-Litigation Communications Between ATR and
Federal Agencies, Including Federal Agencies ATR Does Not Represent.
On March 27, 2023, Google served its first set of Requests for Production. Request No. seeks:
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All documents, aside from documents produced by Google during the
Investigation, concerning the Investigation or the subject matter of this Action,
including . . . c. all informal requests for documents, data, or information to any
person . . . [and] f. all correspondence with any person concerning the Investigation
or the subject matter of this Action.
Request No. 12 seeks data relating to each FAA’s purchase of “open web display advertising” and
use of Ad Tech Products. Plaintiff served objections on April 11, 2023, and the parties met and
conferred throughout April and May to reach agreement on search terms, custodians, and the
overall scope of production. With respect to the data sought by Request No. 12, Plaintiff
maintained that it did not have the requested data in its possession, custody or control, and that
because “the FAAs do not control the actions of the advertising agencies, which are independent
companies,” Plaintiff was using “Rule 45 subpoenas” to obtain any documents or data from the
advertising agencies who worked on behalf of the FAAs. Ex. 2 (June 12, 2023 Letter from K.
Clemons to M. Goodman at 12). Plaintiff did not object or even suggest that communications
between the FAAs and the “independent” advertising agencies were privileged or protected work
product.
On June 9, 2023, Plaintiff requested that it be able to provide a categorical privilege log
for “communications within the federal government but not ‘solely between counsel for the
United States . . . and counsel for any Federal Agency Advertiser,’” claiming “the burden of
individually logging such communications is not reasonable or proportionate to the needs of the
case.” Ex. 3 (June 9, 2023 Letter from M. Wolin to M. Goodman at 1). Such pre-litigation
communications dated between December 23, 2022 and January 23, 2023 from the government’s
investigative file are responsive to Google’s Request No. 5, and—as acknowledged by the
government—are not within the exemptions from privilege logging under Paragraph V.8 of
the ESI Order (Dkt. No. 142).
Id.
Accordingly, Google declined Plaintiff’s request and
asked that Plaintiff provide an individualized log, which it provided on June 26, 2023. Ex. (“June 26 privilege log”).
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The June 26 privilege log contains 57 entries listing pre-litigation communications between
ATR and non-attorney employees of federal agencies—including agencies for which the
government is not claiming damages—during the time period December 23, 2022 to January 23,
2023. The subject lines for the majority of the logged communications are “Inquiry from
Department of Justice, Antitrust Division,” “Inquiry from Antitrust Division re DOJ Digital
Advertising,” “Request for Information from DOJ Antitrust,” or reflect follow-up communications
from the federal agencies in response to ATR’s initial outreach.
Plaintiff claims attorney-client, work-product, and deliberative-process privileges for each
communication based on one of two boilerplate and conclusory descriptions, depending on
whether ATR is the recipient or sender of the email.
Non-ATR Sender: “Confidential communication to counsel for United States
providing legal advice regarding potential violation of Section 4A of the Clayton Act
related to purchases of digital advertising by agencies and divisions of the United
States government; made in anticipation of litigation against Google for violations of
Sections 1 and 2 of the Sherman Act and Section 4A of the Clayton Act; and made
in the course of Antitrust Division staff providing opinions and recommendations in
connection with decision on whether to file a case against Google for violations of
Sections 1 and 2 of the Sherman Act and Section 4A of the Clayton Act.”
ATR Sender: “Confidential communication from counsel for United States made
in the course of their providing legal advice regarding potential violation of Section
4A of the Clayton Act related to purchases of digital advertising by agencies and
divisions of the United States government; made in anticipation of litigation against
Google for violations of Sections 1 and 2 of the Sherman Act and Section 4A of the
Clayton Act; and made in the course of Antitrust Division staff providing opinions
and recommendations in connection with decision on whether to file a case against
Google for violations of Sections 1 and 2 of the Sherman Act and Section 4A of the
Clayton Act.”
Google explained during the meet and confer process and in related correspondence that
the privilege assertions are improper, and requested that Plaintiff (1) produce without redaction all
documents on its June 26, 2023 log; (2) provide a list of custodians at ATR whose files were
searched for purposes of responding to Google’s Request No. 5; and (3) prepare a privilege log for
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documents over which ATR is asserting a privilege pursuant to Section V.8.e of the ESI Order
(Dkt. 142), i.e., communications prior to the filing of the Complaint between counsel for the
government and counsel for any Federal Agency Advertiser.1 Ex. 5 (July 31, 2023 Letter from M.
Goodman to M. Wolin at 3–4). Google explained that although Section V.8.e exempts logging of
the last category of documents, Google has serious concerns that Plaintiff is wrongly asserting a
blanket privilege over ATR’s pre-complaint communications with any FAA lawyers before any
lawyer-client relationship was established, particularly in light of ATR counsel asserting during
the meet and confer that its client is “the United States” or, at a minimum, “large portions of the
executive branch.”2 Ex. 5 (July 31, 2023 Letter from M. Goodman to M. Wolin at 2).
Plaintiff’s August 5, 2023 response failed to provide the requested information. Instead,
Plaintiff put forward no legal or factual support for the assertion that all communications between
DOJ attorneys and federal agencies (attorneys and non-attorneys alike)—regardless of whether
DOJ is seeking damages on the agencies’ behalf—are privileged, and cited only DOJ’s statutory
authority to conduct litigation and enforce the antitrust laws. Ex. 6 (August 5, 2023 Letter from
M. Wolin to M. Goodman). Plaintiff claimed in its letter that because the communications were
close in time to the complaint’s filing, they are attorney work product.3 And Plaintiff’s letter did
Section V.8.e states: “Exclusions. To the extent any of the following Documents are privileged
or otherwise protected from disclosure by Federal Rule of Civil Procedure 26(b)(3)-(4), they may
be excluded from privilege logs: . . . e. Documents or communications sent solely between counsel
for the United States (or persons employed by the United States Department of Justice) and counsel
for any Federal Agency Advertiser.” Dkt. 142 at § V.8.e.
The ESI Order states expressly that “Nothing in this order precludes any party from moving,
upon a showing of good cause, to modify these exclusions with respect to specific requests for
production.” Dkt. 142 at n.5.
ATR’s letter indicated that ATR has concerns with respect to Google’s compliance with
paragraph 12(d) of the Modified Protective Order. Google has been diligent in providing notice
to the United States pursuant to Paragraph 12(d) of the Modified Protective Order, Dkt. 203, of
potentially privileged documents in the FAAs’ productions and in promptly complying with
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not even address its assertion of deliberative process privilege. While the parties met and conferred
again on August 16, 2023, they were not able to reach agreement.B.
Plaintiff Clawed Back Communications Between FAA Employees and Their
Advertising Agencies and Instructed Deponents Not to Answer Questions
Regarding Such Communications.
Five days after Plaintiff stood on its privilege assertions, on August 10, 2023, Google took
its second deposition of an FAA witness, Christopher Karpenko, the Executive Director of Brand
Marketing for the USPS during the Damages Period. During the deposition, Plaintiff improperly
clawed back two documents reflecting Mr. Karpenko’s pre-litigation communications with
USPS’s contracted advertising agency, Universal McCann. Despite permitting testimony on these
documents initially, counsel for the government prohibited the witness from answering further
questions about those documents or communications, claiming that the communications were at
the request of counsel. Counsel also instructed the witnesses not to answer questions relevant to
whether any assertion of privilege or work product was substantiated. (Karpenko Tr. 80:8-84:8).
Counsel for the government instructed Mr. Karpenko not to answer nearly a dozen questions on
this basis. (Karpenko Tr. 72:16-93:12, 109:11-109:21, 126:20-127:10, 131:15-132:5).
Similarly, at the August 15, 2023 deposition of Allen Owens, the Deputy Director and then
Director of Marketing for the Navy Recruiting Command during the Damages Period, counsel for
paragraph 12(c) upon receiving claw-back notices from the United States. See, e.g., Exs. 7–9 (July
31, August 1, and August 6, 2023 emails from M. Goodman to M. Wolin et al.).
On August 4, 2023, Plaintiff issued a claw-back notice for 96 documents from FAA files.
Plaintiff issued a second claw-back notice on August 14 for 6 documents, including the documents it improperly clawed back during Mr. Karpenko’s deposition. On August 17, 2023,
Plaintiff issued another claw-back notice for 8 additional documents from FAA files, on the basis
that they “reflect[] requests for information and responses that were directed by DOJ relating to
Army digital advertising.” Ex. 10 (August 17, 2023 Letter from D. Grossman to E. Mahr et al.).
Google promptly complied with the Protective Order, but expects that many of the listed
documents have been improperly withheld for the same reasons articulated in this brief.
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the government instructed the witness seven times not to answer questions regarding the witness’s
communications with employees of VMLY&R or Wavemaker, advertising agencies with whom
the Navy contracted for advertising services, where such communications were asserted to have
been made at the request of counsel. (Owens Tr. at 22:11-23:8, 25:21-26:17, 30:19-31-12, 259:814, 274:2-23). In both depositions, counsel for the government described these communications
as privileged work product because they resulted from communications with counsel. (Karpenko
Tr. 80:16-20; Owens Tr. 30:25-31:7).5 In other words, Plaintiff takes the unsupported position
that any communication that follows sequentially from communications with counsel is protected
work product, even when those communications do not include any attorneys, are not directed by
any attorney, and are with percipient witnesses in this case who are neither agents of ATR nor
agents of the FAAs for purposes of this litigation. (Karpenko Tr. 120:5-121:21).6 As the
government’s lawyers have represented to counsel for Google, the agencies are “independent.”
Ex. 2 (June 12, 2023 Letter from K. Clemons to M. Goodman at 12).
Google met and conferred with the government on all of these privilege assertions again
on August 16, 2023, but did not reach agreement.
C.
Plaintiff Clawed Back the Entirety of Deposition Transcripts Relevant to This
Motion on the Morning of Filing.
At 8:14 am on Friday, August 18, 2023—knowing this Motion was being filed that same
day pursuant to the parties’ meet and confers—the government clawed back the entirety of both
Mr. Karpenko’s and Mr. Owens’ deposition transcripts. Ex. 1 (August 18, 2023 Letter from J.
Initially, counsel also asserted attorney-client privilege over the documents, (Karpenko Tr 110:3111:1), but later stated that the only protection being asserted was work product, and not the
attorney-client or deliberative process privileges. (Karpenko Tr.117:8-16, 119:8-20).
Plaintiff took this position after the witness provided testimony indicating he was not aware that
he would in any way be involved in this lawsuit. (Karpenko Tr. 49:7-50:5, 50:18-51:4, 53:5-9,
67:3-68:2).
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McBirney to E. Mahr, et al.). The basis for the clawback of the entirety of the transcript of Mr.
Karpenko’s deposition is that it reflects questioning and testimony as to the documents that were
clawed back. Id. (“we are also clawing back related deposition testimony that Google obtained
through its use of protected documents, including questions informed by information in those
documents that counsel persisted in asking even after we objected on privilege grounds”).
Similarly, the basis for the clawback of the entire transcript of Mr. Owens’ deposition is that he
“briefly became confused as to the meaning of the term ‘interrogatory’ as used by counsel when
being question about the Navy’s interrogatory responses without a copy of those responses being
provided to him.” Id. Notwithstanding that Plaintiff identified very limited portions of the
transcripts over which they claimed privilege, they requested “that Google return, sequester, or
destroy all copies of the deposition transcripts.” Id.
II.
APPLICABLE LEGAL STANDARD
“In the Fourth Circuit, work product and attorney-client privilege are construed ‘quite
narrowly,’” and are “recognized ‘only to the very limited extent that excluding relevant evidence
has a public good transcending the normally predominant principle of utilizing all rational means
for ascertaining truth.’” ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 251 (E.D. Va. 2012).
Likewise, the deliberative process privilege “is to be construed narrowly, and the burden rests upon
the government to be precise and conservative” in asserting such claims. Ethyl Corp. v. E.P.A.,
25 F.3d 1241, 1248 (4th Cir. 1994).
“A party asserting a privilege has the burden of showing that it applies.” ePlus, 280 F.R.D.
at 251; E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 36530, at *(E.D. Va. Apr. 13, 2010). A privilege log therefore must set forth “specific facts that, if credited,
would suffice to establish each element of the privilege or immunity that is claimed.” Bowne of
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N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993). “Once the claims of
privilege/protection have been challenged by the requesting party, the producing party must then
establish an evidentiary basis to support the privilege/protection claim.” Victor Stanley, Inc. v.
Creative Pipe, Inc., 250 F.R.D. 251, 254 n.2 (D. Md. 2008). As explained below, Plaintiff has not,
and cannot, meet its burden of establishing that any of these privileges apply to the documents and
testimony at issue.
III.
ARGUMENT
A.
FAA Employees’ Communications With Ad Agency Representatives and
ATR’s Information-Seeking Outreach To Federal Agencies Are Not Entitled
to Work Product Protection.
Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, which defines what constitutes
work product, provides that “a party may not discover documents and tangible things that are
prepared in anticipation if litigation or for trial by another party or its representative (including the
other party’s attorney, consultant, surety, indemnitor, insurer, or agent.”
Fed. R. Civ. P.
26(b)(3)(A). With respect to the work-product privilege, courts distinguish facts from opinion.
Facts may be obtained “upon a showing of both a substantial need and an inability to secure the
substantial equivalent of the materials by alternate means without undue hardship.” In re Grand
Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996).
1.
Communications Between Non-Lawyer FAA Employees and NonLawyer Ad Agency Employees Are Not Protected Work Product
Because the Ad Agencies Are Not Agents Working At the Direction of
Counsel.
Work product protection does not typically extend to third parties who are “not hired by
any attorney” and who do not “work[ ] for any attorney.” In re Grand Jury Proceedings, 102 F.3d
at 752 (declining to apply work product protection to work created by consultant hired by bank
subject to investigation “before any lawyer was involved in representing the Bank and [who]
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reported the results of his investigation to the Bank itself”); Echavarria v. Roach, 2019 WL
6893034, at *3 (D. Mass. Dec. 17, 2019) (memos prepared by independent institution where
institution was not an attorney’s agent or representative are not work product); Burwell v. Peyton,
2014 WL 12717390, at *3 (D. Vt. Apr. 17, 2014) (written summary of a telephone conversation
involving plaintiff, his uncle, his attorney, and his therapist not work product because there was
“no evidence” the therapist “was acting as an agent of” the plaintiff’s attorney or acting “at the
behest” of the plaintiff’s attorney). Accordingly, facts gathered by a non-lawyer FAA employee
from their non-lawyer ad agency contacts are not protected by the work product doctrine.
The advertising agencies are independent third-parties that do not work at the direction of
ATR. Counsel for the government has represented time and again during discovery conferrals that
the FAAs “do not control the actions of the advertising agencies, which are independent
companies.” Ex. 2 (June 12, 2023 Letter from K. Clemons to M. Goodman at 12). Thus, Plaintiff
had to, like Google, resort to seeking data or information from the ad agencies “via Rule subpoenas.” Id.7 It therefore defies Plaintiff’s own representations throughout the course of
discovery to claim during depositions of FAA witnesses, and with respect to documents exchanged
between FAA non-attorneys and ad agency personnel, that such communications or documents are
protected work product. The relationship between the federal agencies and their advertising
agencies is a business relationship for advertising services—not litigation services, as the FAAs’
interrogatory responses make clear. See, e.g., Ex. 11 (Plaintiff’s Responses to Google’s First Set
The circumstances here are unlike United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961), and
the cases following it, where the attorney-client privilege applied to exchanges between a client
and accountant when the accountant is “necessary” for “the effective consultation between the
client and the lawyer.” Here, the advertising agencies were not retained by ATR; nor did the
advertising agencies “interpret” complex concepts so that the FAAs could obtain legal advice from
ATR. Id. (“If what is sought is not legal advice but only accounting service, or if the advice sought
is the accountant’s rather than the lawyer's, no privilege exists.”).
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of Interrogatories, Appendices C, D, and G (April 26, 2023)).8 Nor is there any contractual or
agency relationship between ATR and ad agencies such that the ad agencies are working at the
direction of counsel. E.g., In re Lumber Liquidator S Chinese-Manufactured Flooring Prod.
Mktg., Sales Pracs. & Prod. Liab. Litig., 2015 WL 9474286, at *2 (E.D. Va. Dec. 28, 2015)
(client’s “agents are generally, and presumptively, not within the protected circle of privileged
attorney-client communications”); Goff v. United Rentals (North America), Inc., 2017 WL
1179158, at *2–3 (E.D. Va. Mar. 28, 2017) (communications between party and insurer were
“ordinary course” communications, not protected work product); Addi v. Corvias Mgmt.-Army,
LLC, 339 F.R.D. 594, 598 (D. Md. 2021) (requiring production of “raw information” collected by
contractors of a party in the ordinary course because they were not protected work product).
As independent companies, the advertising agencies are no different than any other third
parties Plaintiff has identified on its initial disclosures as having relevant information. For
example, if an FAA or other federal agency reached out to The Trade Desk, or Microsoft, or Meta,
that communication would be discoverable. Communications that the FAAs and other federal
agencies have had with advertising agencies are no different. The advertising agencies—just like
The Trade Desk, Microsoft, and Meta—are independent third parties, and communications that
the FAAs and other federal agencies had with them are discoverable, regardless of whether they
were as a result of communication with counsel. See Johnson v. Baltimore Police Dep’t, WL 1985014, at *4 (D. Md. May 18, 2018) (holding that documents and discussions with thirdparty prior to his deposition were not work product); S.E.C. v. Gupta, 281 F.R.D. 169, (S.D.N.Y. 2012) (“Although work product protection applies more broadly than the strict
Google does not concede that the ad agencies are “agents” of the FAAs for any purpose
whatsoever, and reserves all rights to argue no principal-agent relationship exists between them.
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requirements of attorney-client privilege, the type of disclosure to a non-party witness presented
here falls beyond the ‘zone of privacy’ protection an attorney needs to prepare his case.”).
2.
ATR’s Pre-Litigation Outreach to Federal Agencies for Fact Gathering
Is Not Work Product.
ATR’s pre-suit communications with federal agencies regarding their display advertising
purchasing practices does not qualify as work product. As the subject lines of the emails listed on
the June 26 privilege log demonstrate, these communications were for the purpose of fact gathering
and, as such, belong in ATR’s investigative file, which is discoverable. The “driving force” behind
these communications was to understand how federal agencies purchase digital advertising. Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th
Cir. 1992). These communications are no different from DOJ’s communications with any third
party from which it solicited information related to its investigation and the subject matter of this
lawsuit, and Plaintiff has provided no basis to distinguish ATR’s communications with third
parties, which it has produced, see, e.g., Ex. 12 (DOJ-ADS-B-0000026658), and its
communications with federal agencies, which it has withheld. Many of the logged documents
appear to seek or relay information from departments and/or agencies that are not even parties to
this case. Spilker v. Medtronic, Inc., 2015 WL 12851391, at *2 (E.D.N.C. Jan. 6, 2015) (“several
courts have denied non-parties work product protection”) (collecting cases); see also Gupta, F.R.D. at 173.At Plaintiff’s request, the Court ruled that discovery from agencies on whose behalf the
government does not seek damages constitutes non-party discovery. U.S. Br. re the Scope of Fed.
Agency Discovery in the Parties Joint Proposed Discovery Plan at 2 (Dkt. 92) (“The United States
does not seek damages on behalf of the entire federal government writ large, and for that reason,
if Google seeks, for its own purposes, to obtain discovery from other federal agencies on whose
behalf the United States is not seeking damages, it should do so through standard means of nonparty discovery.”); Rule 16(b) Scheduling Order ¶ 8 (Dkt. 94) (adopting plaintiffs’ proposal for
Section 6.G(iii), which states that “Current and former employees of the Federal Agency
Advertisers will be considered party witnesses . . . but current and former employees of any other
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3.
Even If Plaintiff’s Work Product Assertions Were Proper, the
Withheld Information Constitutes Only Factual Information for
Which Google Has a Substantial Need and Cannot Otherwise Obtain
Without Undue Hardship.
The documents and testimony Plaintiff seeks to shield from discovery reflect purely factual
information in communications involving non-parties. Google should be able to discover them
because it has a “substantial need,” and is unable “to secure the substantial equivalent of the
materials by alternate means without undue hardship.” Duck v. Warren, 160 F.R.D 80, 82 (E.D.
Va. 1995); In re Grand Jury Proceedings, 102 F.3d at 750.
First, substantial need has been found where materials sought relate to the government’s
ability to “define the ‘relevant market’ to prevail.” United States v. Booz Allen Hamilton, Inc.,
2022 WL 3921019 at *2-3 (D. Md. Aug. 31, 2022) (disclosure of factual information compelled
over work product assertion). FAA employees’ unvarnished views and reactions to ATR’s
inquiries regarding the FAAs’ purchases of digital advertising is critical evidence that could
contradict Plaintiff’s gerrymandered, overly narrow market definition, as could other information
provided by FAAs and other federal agencies in connection with ATR’s investigation.
The significance of the requested information is underscored by a document introduced
during the deposition of USPS’ Mr. Karpenko and his related testimony. After the Office of
Inspector General (“OIG”) asked Mr. Karpenko whether USPS “purchased any advertising on the
open web in third-party websites,” Mr. Karpenko asked for clarity on what the OIG was seeking
because he—a long-time marketing and advertising industry veteran for the USPS—did not
understand what OIG was asking. Ex. 13 at 2 (USPS-ADS-0000140586); (Karpenko Tr. at 57:1458:18). The OIG employee acknowledged that his use of the term “advertising on the open web
executive branch agency of the United States will be considered non-party witnesses.” See Joint
Proposed Discovery Plan (Dkt. 87)).
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in third-party websites” is “probably” “different[] than what you is [sic] commonly used in
advertising.” Ex. 13 at 2 (USPS-ADS-0000140586). This exchange is just one illustration of how
Plaintiff’s use of the term “open web display advertising,” the government’s proffered market
definition, defies the commercial realities of how industry participants define the market for
available advertising. Google has a substantial need for other similar communications reflecting
exchanges between ATR and federal agencies in the context of ATR’s outreach, and between
federal agencies and their ad agencies, as well as testimony regarding such communications in
order to demonstrate that Plaintiff’s alleged antitrust markets were manufactured solely for
purposes of this litigation and do not “correspond to the commercial realities of the industry.”
Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne LLC, 2011 WL
5872885, at *4 (E.D. Va. Nov. 22, 2011) (quoting Brown Shoe Co. v. United States, 370 U.S. 294,
336 (1962)).
Moreover, in evaluating substantial need, the “Fourth Circuit has recognized the special
value of contemporaneous statements.” Coogan v. Cornet Transp. Co., Inc., 199 F.R.D. 166, 16768 (D. Md. 2001) (finding that party had demonstrated “substantial need” for statement which
captured the defendant’s “immediate perceptions,” and was “uninfluenced by the passage of time
or his present status as a” party). These percipient fact witnesses’ immediate reactions to what
they perceived as routine, ordinary-course requests for information is vital discovery untainted by
any attorney-education of these witnesses. Ex. 14 (Oliphant Tr. 65:14-66:16). Nat’l Union, F.2d at 985 (party seeking discovery has substantial need for “[s]tatements of either the parties or
witnesses taken immediately after the accident and involving a material issue in an action” because
they are “unique catalysts in the search for truth”).
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Second, Google is unable “to secure the substantial equivalent of the materials by alternate
means without undue hardship.” In re Grand Jury Proceedings, 102 F.3d at 750. Google has ten
party depositions, and twenty non-party depositions. Given the deposition limits in this case,
Google cannot depose each of the federal employees ATR communicated with or each of the
twenty ad agencies relevant to this case, which worked for eight different FAAs. Given the
breakneck speed of this case, limited discovery available, and scores of witnesses listed on
Plaintiff’s initial disclosures, substantial need is more than satisfied to overcome the government’s
work product claim with respect to the communications at issue. Booz Allen Hamilton, Inc., WL 3921019 at *2, 4 (finding substantial need where “the breakneck speed of this litigation has
diminished the availability of alternative sources for this information” and a “deposition’s
usefulness may be limited in this context without the requested documents”). Even if it were
possible to depose every federal employee ATR communicated with and every ad agency relevant
to this case, they “might not be able to recall sufficient detail” regarding the facts Google seeks to
discover. Fed. Elec. Comm’n v. Christian Coal., 178 F.R.D. 456, 466 (E.D. Va. 1998); e.g., APL
Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 13–14 (D. Md. 1980) (“it is not unlikely that the
documents from Aetna’s files reflecting its investigation of plaintiffs’ claim will themselves be
capable of establishing in the most effective way what information Aetna had in its possession
when Aetna decided to deny plaintiffs’ claim”); see also Fed. R. Civ. P. 26(b)(3), Adv. Cmte. note
(recognizing the need for discovery of witness statements from an investigative file giving a “fresh
and contemporaneous account”).Moreover, substantial need exists, where—as here—“the documents sought contain statements
that might impeach a witness.” Duck, 160 F.R.D. at 83. Plaintiff has asserted a claim for damages
on the basis that various government agencies “are buyers of open web display advertising” and
have incurred “monetary damages.” Am. Compl. ¶ 341 (Dkt. 120). Communications
demonstrating that ATR embarked on a beat-the-clock search for federal agencies who may have
been damaged, especially those that demonstrate agencies were not damaged or otherwise
REFILED UNREDACTED VERSIONPage 17 PageID#
Third, to the extent they contain protected information (attorney impressions, for example),
the documents should be produced with those portions redacted. See In re Royal Ahold N.V. Secs.
& ERISA Litig., 230 F.R.D. 433, 437 (D. Md. 2005).
B.
Pre-Suit Communications Between ATR and Federal Employees Are Not
Protected by the Attorney-Client Privilege.
Because the attorney-client privilege “impedes the full and free discovery of the truth . . .
[it] is to be narrowly construed.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (cleaned
up). To establish that the privilege applies, the proponent must show that:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a court,
or his subordinate and (b) in connection with this communication is acting as a
lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in
some legal proceeding, and not (d) for the purpose of committing a crime or tort;
and (4) the privilege has been (a) claimed and (b) not waived by the client.
In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003) (citation omitted) (emphasis added).
This test applies equally to attorney-client privilege within the government as it does outside the
government. Stonehill v. U.S. Dep’t of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C.
Feb. 10, 2022) (citations omitted).
The June 26 privilege log demonstrates that beginning in late December 2022 and through
mid-January 2023, ATR reached out to a number of federal government employees with requests
for information. Neither ATR’s outreach, nor the responses by federal agency employees, are
privileged because (1) there was no attorney-client relationship between ATR and the agencies;
and (2) the communications were not for the purpose of seeking legal advice.
undermine Plaintiff’s factual assertions throughout the complaint, are “invaluable” information
and therefore satisfy the “‘substantial need’ required to overcome the work product immunity.”
Duck, 160 F.R.D. at 83.
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1.
At the Time of the Communications, the Federal Agencies Were Not,
and Were Not Seeking to Become, ATR’s Clients.
There is no factual or legal basis for ATR to assert that when it sent unsolicited emails to
federal agencies there was any attorney-client relationship between ATR and the agencies. In re
Grand Jury Subpoena: Under Seal, 415 F.3d 333, 339 (4th Cir. 2005) (the attorney client
relationship “hinges upon the client’s belief that he is consulting a lawyer in that capacity and his
manifested intention to seek professional legal advice”). ATR does not automatically have an
attorney-client relationship with all federal agencies; instead, ATR must meet the same burden as
any party that seeks to claim the attorney-client privilege. Stonehill, 2022 WL 407145, at *(government did not meet its burden of establishing privilege where “there is nothing indicating
that the IRS employee was a client or the attorneys were acting in their capacity as lawyers, or that
the communication was confidential or even legal in nature”). Just as a lawyer cannot create an
attorney-client relationship by sending letters to potential plaintiffs or class representatives, ATR
cannot create an attorney-client relationship with any employee in the federal government by
sending them an email. U.S. E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503, 508 (E.D. Cal. 2009)
(sending letters to potential members of a class action does not create an attorney-client
relationship). “At its core,” Plaintiff’s “argument regarding the existence of an attorney-client
relationship relies solely on the fact that it” reached out to the federal agencies “in order to further
develop the group of claimants on whose behalf it sued. That is not enough.” Id. Importantly,
that argument is also contrary to Plaintiff’s position that non-FAA federal agencies are not parties
for purposes of discovery. See infra note 9.
REFILED UNREDACTED VERSIONPage 19 PageID#
2.
The Communications Were Not Made for the Purpose of the Federal
Agencies Securing Legal Advice.
Even if there were a preexisting attorney-client relationship between ATR and any of the
federal agencies reflected on the June 26, 2023 log, there is no evidence that any of these agencies
were seeking legal advice from ATR. Affirmative testimony from the FAA deponents to date
demonstrates exactly the opposite—that they were not seeking legal advice from ATR. The FAAs
responded to DOJ’s requests for information, but witnesses testified they did not seek legal advice
from DOJ. Ex. 14 (Oliphant Tr. at 64:3-12, 332:16-335:22) (“Q. Have you ever sought . . . legal
advice from an attorney at the antitrust division of the Department of Justice? . . . A. No. . . . Q.
Do you consider the lawyers for the antitrust division to be lawyers for the [C]ensus [B]ureau? . .
. A. I do not.”); Ex. 15 (Horning Rough Tr. at 2-3) (“Q. Have you ever requested legal advice from
the Department of Justice Antitrust Division?” “A. No.”)11; (Owens Tr. at 46:3-14, 89:4-7).
Rather, the FAA witnesses had no reason to seek legal advice from antitrust attorneys, as they have
uniformly testified they were not aware of any anticompetitive conduct by Google. Ex. (Oliphant Tr. at 63:6-11), (Owens Tr. at 210:22-2:11:4; Karpenko Tr. at 139:3-8).
The privilege assertions reflected in the rough transcript of the deposition of Mr. Horning, taking
place on the day on which this Motion is being filed, reflect the breadth and impropriety of
Plaintiff’s privilege assertions. E.g., Ex. 15 (Horning Rough Tr. at 2-19) (instructing witness not
to answer questions regarding his understanding of the reason for his conversations with ATR,
whether ATR ever “requested information about digital advertising purchases” (a yes or no
question), whether ATR lawyers present at the deposition explained to Mr. Horning the purpose
of a previous interview (a yes or no question), Mr. Horning’s understanding of the purpose of that
interview, Mr. Horning’s understanding as to the possibility of litigation during the time he was
having pre-suit discussions with ATR, and regarding communications between Mr. Horning and
individuals at the advertising agency DDB, who provide services for the Army).
Google originally intended to quote portions of the transcripts from the depositions of Mr.
Karpenko and Mr. Owens in support of this argument. Given Plaintiff’s last-minute clawback of
these transcripts, Google has not quoted from these transcripts, and has submitted them for in
camera review.
REFILED UNREDACTED VERSIONPage 20 PageID#
Exhibit 13—a January 9, 2023 email exchange between Matthew Gardner, a USPS OIG
investigator, and Mr. Karpenko—illustrates exactly why Plaintiff’s privilege assertions are
improper. This document, which appears to be similar to documents listed on Plaintiff’s privilege
log, is clearly an inquiry requesting factual information, not a request for or provision of legal
advice. Mr. Gardner states that he is:
gathering information that pertains to an inquiry we are currently conducting. We are trying
to determine whether the U.S. Postal Service purchased any advertising on the open web
in third-party websites such as nytimes.com, cnn.com, or bloomberg.com. . . . We are
hoping to learn how these advertising services are purchased, which platforms are used to
go about making these purchases, and approximately how much money the USPS has spent
on this type of advertising over the past four years.
Ex. 13 at 2 (USPS-ADS-0000140586). In response, Mr. Karpenko informs Mr. Gardner that
“coincidentally, we have a meeting with DOJ tied to something very simila[r].” Ex. 13 at 2 (USPSADS-0000140586). Mr. Karpenko also testified that he suspected that OIG and ATR may have
been working in tandem given that DOJ was also making similar inquiries. (Karpenko Tr. 67:368:2. ).The subject line of the emails in Exhibit 13, “OIG Request for Assistance,” is just like the
June 26 privilege log entries where DOJ requests information, over which Plaintiff has asserted
attorney-client privilege, work product, and deliberative process privilege. Further, OIG itself
appears on the June 26 privilege log in eight entries, all of which were sent either the same day as
the email in Exhibit 13, or one day later. See Ex. 4 (June 26 privilege log) Rows 38, 44-50. The
only difference between the OIG email to which Mr. Karpenko testified and the OIG emails over
which ATR asserts privilege is that an ATR attorney is on them. But as Plaintiff knows, “[a]
Other documents produced by USPS reveal that ATR contacted USPS around the very same
time and regarding the same topic. For example, employees of USPS, including Chris Karpenko,
and attorneys from ATR met by Zoom on January 11, 2023. Ex. 16 (USPS-ADS-0000031693).
The subject of the conversation was: “Discussion with DOJ Regarding Digital Advertising.” Id.
REFILED UNREDACTED VERSIONPage 21 PageID#
communication is not privileged simply because one of the parties is an attorney” and “simply
copying an attorney on a communication . . . [does not] cloak that communication with the
attorney-client privilege.” CSX Transp., Inc. v. Norfolk S. Ry. Co., 2020 WL 12862960, at *(E.D. Va. Aug. 21, 2020).
Far from revealing any federal agency’s request for legal advice, the communications in
question—as evidenced by the subject lines on the privilege log—only reflect DOJ seeking and
receiving factual information from the federal agencies, and facts are not privileged. The
communications should not reflect confidential information relayed by the FAA to ATR for the
purpose of the FAA seeking, or ATR providing, legal advice based on FAA witnesses’ express
denial that they were seeking legal advice from ATR. Ex. 14 (Oliphant Tr. at 64:3-66:9); Ex. (Horning Rough Tr. at 2-3); (Karpenko Tr. at 49:7-51:4, 139:3-8; Owens Tr. at 46:3-24, 88:2589:7). Nor has ATR shown that it was providing legal advice to any federal agency based on such
communications. See Stonehill, 2022 WL 407145, at *23. Because “DOJ was simply exploring
the factual background” underlying its potential damages claim, “its correspondence with the
[agencies] may not be protected by attorney-client privilege.” United States v. Booz Allen
Hamilton, Inc., 2022 WL 3921019 at *3 (D. Md. Aug. 31, 2022).
C.
Plaintiff Fails To Show The Deliberative Process Privilege Applies To FactGathering Communications With Federal Employees.
The deliberative-process privilege is not a blanket protection for all inter-agency
communications—it only protects inter-agency communications or documents that are both
“predecisional” (i.e., “generated before the agency’s final decision on the matter”) and
“deliberative” (i.e., “they were prepared to help the agency formulate its position”). U.S. Fish &
Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021); Dipace v. Goord, 218 F.R.D. 399,
403 (S.D.N.Y. 2003); Ethyl Corp. v. E.P.A., 25 F.3d 1241, 1248-49 (4th Cir. 1994) (“When
REFILED UNREDACTED VERSIONPage 22 PageID#
material could not reasonably be said to reveal an agency’s or official’s mode of formulating or
exercising policy-implicating judgment, the deliberative process privilege is inapplicable.”)
Further, the deliberative process privilege “protects advice and opinions,” not “facts unless they
would indirectly reveal the advice, opinions, and evaluations circulated within the agency as part
of its decision-making process.” Rein v. U.S. Pat. & Trademark Off., 553 F.3d 353, 371 n.26 (4th
Cir. 2009); see Ethyl Corp., 25 F.3d at 1250 (deliberative process privilege does not protect the
exchange of facts and information in the course of an investigation).
As reflected in Exhibit 13, which, as explained above, Google believes is representative of
the documents on the June 26 privilege log, emails ATR is withholding do not reflect advice or
opinions, but instead show ATR reaching out to agencies for factual information; the emails do
not reveal any decision being made. Likewise, both Ms. Oliphant’s and Mr. Karpenko’s deposition
testimony confirms that the communications in question reflect a fact-gathering mission, as
opposed to a decisional process. Ex. 14 (Oliphant Tr. at 64:3-66:9); (Karpenko Tr. at 49:7-51:4,
54:17-55:10, 136:3-9, 139:3-8). Nothing in these fact-gathering communications reflects “advice,
opinions, [or] evaluations,” and therefore it does not qualify as “deliberative.” Rein, 553 F.3d at
371 n.26; Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Balt., 508 F.2d 945, 948 (4th Cir. 1974)
(a document that “neither expressed an opinion nor made a recommendation,” but instead
“contains no more than inferences that are essentially similar to the findings which preceded it”
does not reflect “the deliberative processes of decision or policymaking”); Playboy Enters., Inc. v.
Dep’t of Justice, 677 F.2d 931, 935-36 (D.C. Cir. 1982) (report not protected by deliberative
process privilege where it reflected task force’s mission “to investigate the facts surrounding
REFILED UNREDACTED VERSIONPage 23 PageID#
certain events”).
Even if the privilege did apply, the Court should still order these documents produced
because they are evidence going to, among other things, Plaintiff’s ability to prove its contrived
market definition, a core issue in the case, and the need for this highly relevant evidence far
outweighs any arguable deliberative process protection. Supra, § III.A.3; see NAACP v. Bureau
of Census, 401 F. Supp. 3d 608, 617 (D. Md. 2019) (validity of deliberative process depends “upon
a balancing of the public interest in nondisclosure with the need for the information as evidence,”
including by considering “the relevance of the evidence to the lawsuit” and “the government’s role
(if any) in the litigation”); Booz Allen Hamilton, Inc., 2022 WL 3921019 at *2-3 (disclosure of
factual information compelled over deliberative process assertion where materials were relevant
to DOJ’s ability to define “relevant market,” availability of alternative sources for information was
diminished by virtue of speed of litigation, and government was a party to the case).
Moreover, when “the government is a party to a case, it has a ‘more central role in the
litigation’ which ‘weighs in favor of disclosure.’” Booz Allen Hamilton, 2022 WL 3921019, at *2.
Here, disclosure is appropriate because ATR and the FAAs are parties to the action and the
documents are “of the nature that a non-governmental entity . . . would have to produce during
discovery.” F.D.I.C. v. Hatziyannis, 180 F.R.D. 292, 294 (D. Md. 1998); United States v. Ernstoff,
183 F.R.D. 148, 153 (D.N.J. 1998) (when government seeks affirmative relief it should be required
to turn over any documents that a private person would).
D.
In the Alternative, Google Requests that the Court Conduct an In Camera
Review.
Because Plaintiff’s assertions of privilege for the 57 documents on its June 26 log—based
on the log entries alone—and the documents clawed back at deposition and through Plaintiff’s
recent letters are improper, Plaintiff should be required to produce them. To the extent the Court
REFILED UNREDACTED VERSIONPage 24 PageID#
needs additional information to assess Plaintiff’s privilege assertions, Google requests that the
Court conduct an in camera inspection of a sample of the withheld documents as well as the two
documents clawed back at Mr. Karpenko’s deposition. A court may conduct in camera review
where it would be helpful “for the Court correctly to apply the Fourth Circuit’s attorney-client
privilege law, including the limitations that are inherent in that body of law.” F.T.C v. Reckitt
Benckiser Pharm., Inc., 2015 WL 1062062, at *8 (E.D. Va. Mar. 10, 2015); see also Morrison v.
Cty. of Fairfax, 2014 U.S. Dist. LEXIS 189528, at *6 (E.D. Va. June 19, 2014) (“Clearly not all
communications involving an attorney are subject to the attorney-client privilege and those
communications must be reviewed individually to see if they satisfy the above requirements.”);
Asghari–Kamrani v. United Servs. Auto. Ass’n, 2017 WL 553402, at *6 (E.D. Va. Jan. 20, 2017)
(noting courts typically “must determine, from an examination of the documents or their
circumstances, whether they were prepared in anticipation of litigation or for trial”).
Here, Plaintiff has failed to carry its initial burden of demonstrating that the attorney-client
privilege, the work product doctrine, and/or the deliberative process privilege apply to the
documents at issue. But even if it had, Google has come forth with sufficient evidence to justify
in camera inspection of the documents. Where the party asserting the privileges have established
the factual basis for each of its claimed assertions, the party seeking in camera review must present
“a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may
reveal evidence that information in the materials is not privileged.” In re Zetia (Ezetimibe)
Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16, 2019) (internal quotations omitted).
Exhibits and testimony of FAA witnesses, as explained above, demonstrate exactly why Plaintiff’s
privilege assertions are improper.
REFILED UNREDACTED VERSIONPage 25 PageID#
E.
There Is Good Cause to Modify Section V.8.e. of the Protective Order and
Require ATR to Provide an Individualized Log of Pre-Complaint
Communications with FAA Counsel.
The ESI Order states expressly: “Nothing in this order precludes any party from moving,
upon a showing of good cause, to modify these exclusions with respect to specific requests for
production.” Dkt. 142 at n.5. The June 26 privilege log, along with the testimony adduced in FAA
depositions thus far, calls into question whether Plaintiff is using the ESI order to conceal the fact
of Plaintiff’s improper privilege assertions from Google, providing “good cause” for modification
of Section V.8.e. Google therefore requests that Section V.8.e be amended to require Plaintiff to
produce an individualized privilege log for pre-litigation communications between ATR personnel
and FAA attorneys prior to January 24, 2023. The incremental burden to Plaintiff should be
marginal as the June 26 privilege log shows that ATR’s communications with federal agencies—
including some FAAs—related to the subject matter of the investigation began around December
23, 2022–just a month before it filed its Complaint. Moreover, Google has acted promptly and in
good faith in bringing this motion. Plaintiff informed Google on August 5, 2023 that it would not
produce an individualized privilege log for communications between DOJ personnel and FAA
attorneys prior to January 24, 2023 that are responsive to RFP 5, the parties met and conferred on
August 16, 2023, and Google filed its motion two days later.
As a close analog to the instant request, the factors to be considered under the good cause
standard in Fed. R. Civ. P. 16(b)(4) and E.D. Va. Loc. Civ. R. 16(b) “include the danger of
prejudice to the non-moving party, the length of delay and its potential impact on judicial
proceedings, the reason for the delay, and whether the movant acted in good faith.” Roe v. Howard,
2017 WL 3709088, at *1 (E.D. Va. June 30, 2017) (citing Guerrero v. Deane, 2012 WL 3068767,
at *2 (E.D. Va. July 27, 2012) (emphasis added).
REFILED UNREDACTED VERSIONPage 26 PageID#
IV.
CONCLUSION
Google respectfully requests that the Court grant this motion and order Plaintiff to produce
the 57 documents listed on the June 26 privilege log and the documents clawed back during Mr.
Karpenko’s deposition and through Plaintiff’s August 4, 2023 and August 17, 2023 letters. Google
also requests that the Court order Plaintiff to permit questioning of FAA witnesses on all
communications between the witness and employees of the FAA’s advertising agency
contractor(s).
Alternatively, Google seeks an in camera review of a sample of those documents by the
Court to assess Plaintiff’s privilege claims. In addition, Google requests that the Court modify
Section V.8.e. of the ESI Order to require Plaintiff to log communications between the ATR and
FAA counsel that predate January 24, 2023 and are responsive to Google’s Fifth Request for
Production or were part of the DOJ’s Investigative File.
REFILED UNREDACTED VERSIONPage 27 PageID#
Dated: August 18, Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street, NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
Counsel for Defendant Google LLC
Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-Telephone: (202) 223-Facsimile (202) 223-kdunn@paulweiss.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearborn@paulweiss.com
Erin J. Morgan (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-Telephone: (212) 373-Facsimile: (212) 492-ejmorgan@paulweiss.com
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Case 1:23-cv-00108-LMB-JFA Document 357-1 Filed 08/30/23 Page 1 of 28 PageID# 5276
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
v.
No. 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
GOOGLE LLC’S MEMORANDUM IN SUPPORT OF ITS
MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND TESTIMONY WRONGLY WITHHELD AS PRIVILEGED
Plaintiff United States (“Plaintiff” or “the government”) is withholding two categories of
evidence based on improper assertions of work product, attorney-client privilege, and/or
deliberative process privilege, thereby depriving Google of factual information crucial to its
defense in this case:
The first category of improperly withheld evidence consists of pre-litigation
communications reflecting outreach by the Antitrust Division of the Department of Justice
(“ATR”) to federal agencies, including non-party agencies with which ATR has no attorney-client
relationship and on whose behalf it is not seeking damages. Plaintiff has improperly asserted work
product, attorney-client privilege, and deliberative process privilege over these communications.
Yet these pre-litigation communications with federal agencies for fact gathering purposes are no
different from the discoverable intake that a plaintiff firm does on potential clients or claims before
1
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any attorney-client relationship is formed. They are also no different from ATR’s pre-litigation
communications with any other non-party to this case, which ATR has produced as part of its
investigative file. There is no basis to treat these communications with federal agencies any
differently from communications with other non-parties.
The second category of wrongfully withheld evidence consists of pre-litigation
communications between non-lawyers at federal agencies and their advertising agencies relating
to this lawsuit, over which Plaintiff asserts work product protection. The communications between
federal agencies and their advertising agencies are likewise not protected from disclosure. There
is no attorney-client relationship between a federal agency and its advertising agency, and the
communications likewise cannot be considered work product because the advertising agencies are
not ATR’s agents. The advertising agencies were retained by federal agencies in the ordinary
course of business—not by the ATR for litigation purposes. There is therefore no agency
relationship between ATR and the advertising agencies, a prerequisite for work product protection
to apply.
The withheld documents are significant because they show that the way that Plaintiffs have
defined the relevant antitrust markets in this case—markets for products relating to “open web
display advertising”—is entirely contrary to the commercial realities of how federal agencies
purchase advertising, including the federal agencies on whose behalf ATR is seeking damages, the
Federal Agency Advertisers (“FAAs”). The withheld documents also show that the damages
claims that Plaintiffs have asserted were an afterthought; the motivation behind ATR’s case was
not to recoup costs on behalf of any FAAs. Although ATR conducted a sweeping investigation
for over three years, its pre-litigation communications with FAAs show that it was not until the
eleventh hour that it even bothered to reach out to any FAAs to try to construct a damages claim
2
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(presumably as a basis to seek a jury trial).
Plaintiff has desperately sought to shield this non-privileged information from discovery—
and disclosure to the public—under the cloak of privilege. Google had planned to include in this
motion the deposition testimony from two FAA witnesses which establishes that there is absolutely
no factual predicate for Plaintiff’s privilege claims. But, on the day that Google was finalizing its
motion for filing, ATR sent Google a letter clawing back not just portions of the deposition
transcripts, but both transcripts in their entirety—even though one deposition took place eight days
ago and another three days ago with an ATR attorney present at each. Ex. 1 (August 18, 2023
Letter from J. McBirney to E. Mahr, et al.). Because Google disagrees that ATR has any basis to
claw back any portion of the deposition transcripts, much less the entirety of the transcripts, Google
is submitting for the Court’s in camera inspection the transcripts with the relevant portions
highlighted.
Accordingly, Google respectfully requests that the Court order Plaintiff (1) to produce the
communications listed on ATR’s June 26, 2023 privilege log between ATR and non-attorney
employees of federal agencies; (2) to produce an itemized privilege log for all pre-litigation
documents reflecting communications between ATR and counsel for any FAA that are responsive
to Google’s Requests for Production; (3) to produce documents wrongly clawed back during the
deposition of an FAA witness and in recent letters, and (4) to permit Google to examine FAA
deponents on their communications with advertising agencies related to this lawsuit.
I.
BACKGROUND
A.
Plaintiffs Are Withholding Pre-Litigation Communications Between ATR and
Federal Agencies, Including Federal Agencies ATR Does Not Represent.
On March 27, 2023, Google served its first set of Requests for Production. Request No. 5
seeks:
3
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All documents, aside from documents produced by Google during the
Investigation, concerning the Investigation or the subject matter of this Action,
including . . . c. all informal requests for documents, data, or information to any
person . . . [and] f. all correspondence with any person concerning the Investigation
or the subject matter of this Action.
Request No. 12 seeks data relating to each FAA’s purchase of “open web display advertising” and
use of Ad Tech Products. Plaintiff served objections on April 11, 2023, and the parties met and
conferred throughout April and May to reach agreement on search terms, custodians, and the
overall scope of production. With respect to the data sought by Request No. 12, Plaintiff
maintained that it did not have the requested data in its possession, custody or control, and that
because “the FAAs do not control the actions of the advertising agencies, which are independent
companies,” Plaintiff was using “Rule 45 subpoenas” to obtain any documents or data from the
advertising agencies who worked on behalf of the FAAs. Ex. 2 (June 12, 2023 Letter from K.
Clemons to M. Goodman at 12). Plaintiff did not object or even suggest that communications
between the FAAs and the “independent” advertising agencies were privileged or protected work
product.
On June 9, 2023, Plaintiff requested that it be able to provide a categorical privilege log
for “communications within the federal government but not ‘solely between counsel for the
United States . . . and counsel for any Federal Agency Advertiser,’” claiming “the burden of
individually logging such communications is not reasonable or proportionate to the needs of the
case.” Ex. 3 (June 9, 2023 Letter from M. Wolin to M. Goodman at 1). Such pre-litigation
communications dated between December 23, 2022 and January 23, 2023 from the government’s
investigative file are responsive to Google’s Request No. 5, and—as acknowledged by the
government—are not within the exemptions from privilege logging under Paragraph V.8 of
the ESI Order (Dkt. No. 142).
Id.
Accordingly, Google declined Plaintiff’s request and
asked that Plaintiff provide an individualized log, which it provided on June 26, 2023. Ex. 4
(“June 26 privilege log”).
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The June 26 privilege log contains 57 entries listing pre-litigation communications between
ATR and non-attorney employees of federal agencies—including agencies for which the
government is not claiming damages—during the time period December 23, 2022 to January 23,
2023. The subject lines for the majority of the logged communications are “Inquiry from
Department of Justice, Antitrust Division,” “Inquiry from Antitrust Division re DOJ Digital
Advertising,” “Request for Information from DOJ Antitrust,” or reflect follow-up communications
from the federal agencies in response to ATR’s initial outreach.
Plaintiff claims attorney-client, work-product, and deliberative-process privileges for each
communication based on one of two boilerplate and conclusory descriptions, depending on
whether ATR is the recipient or sender of the email.
Non-ATR Sender: “Confidential communication to counsel for United States
providing legal advice regarding potential violation of Section 4A of the Clayton Act
related to purchases of digital advertising by agencies and divisions of the United
States government; made in anticipation of litigation against Google for violations of
Sections 1 and 2 of the Sherman Act and Section 4A of the Clayton Act; and made
in the course of Antitrust Division staff providing opinions and recommendations in
connection with decision on whether to file a case against Google for violations of
Sections 1 and 2 of the Sherman Act and Section 4A of the Clayton Act.”
ATR Sender: “Confidential communication from counsel for United States made
in the course of their providing legal advice regarding potential violation of Section
4A of the Clayton Act related to purchases of digital advertising by agencies and
divisions of the United States government; made in anticipation of litigation against
Google for violations of Sections 1 and 2 of the Sherman Act and Section 4A of the
Clayton Act; and made in the course of Antitrust Division staff providing opinions
and recommendations in connection with decision on whether to file a case against
Google for violations of Sections 1 and 2 of the Sherman Act and Section 4A of the
Clayton Act.”
Google explained during the meet and confer process and in related correspondence that
the privilege assertions are improper, and requested that Plaintiff (1) produce without redaction all
documents on its June 26, 2023 log; (2) provide a list of custodians at ATR whose files were
searched for purposes of responding to Google’s Request No. 5; and (3) prepare a privilege log for
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documents over which ATR is asserting a privilege pursuant to Section V.8.e of the ESI Order
(Dkt. 142), i.e., communications prior to the filing of the Complaint between counsel for the
government and counsel for any Federal Agency Advertiser.1 Ex. 5 (July 31, 2023 Letter from M.
Goodman to M. Wolin at 3–4). Google explained that although Section V.8.e exempts logging of
the last category of documents, Google has serious concerns that Plaintiff is wrongly asserting a
blanket privilege over ATR’s pre-complaint communications with any FAA lawyers before any
lawyer-client relationship was established, particularly in light of ATR counsel asserting during
the meet and confer that its client is “the United States” or, at a minimum, “large portions of the
executive branch.”2 Ex. 5 (July 31, 2023 Letter from M. Goodman to M. Wolin at 2).
Plaintiff’s August 5, 2023 response failed to provide the requested information. Instead,
Plaintiff put forward no legal or factual support for the assertion that all communications between
DOJ attorneys and federal agencies (attorneys and non-attorneys alike)—regardless of whether
DOJ is seeking damages on the agencies’ behalf—are privileged, and cited only DOJ’s statutory
authority to conduct litigation and enforce the antitrust laws. Ex. 6 (August 5, 2023 Letter from
M. Wolin to M. Goodman). Plaintiff claimed in its letter that because the communications were
close in time to the complaint’s filing, they are attorney work product.3 And Plaintiff’s letter did
Section V.8.e states: “Exclusions. To the extent any of the following Documents are privileged
or otherwise protected from disclosure by Federal Rule of Civil Procedure 26(b)(3)-(4), they may
be excluded from privilege logs: . . . e. Documents or communications sent solely between counsel
for the United States (or persons employed by the United States Department of Justice) and counsel
for any Federal Agency Advertiser.” Dkt. 142 at § V.8.e.
1
The ESI Order states expressly that “Nothing in this order precludes any party from moving,
upon a showing of good cause, to modify these exclusions with respect to specific requests for
production.” Dkt. 142 at n.5.
2
ATR’s letter indicated that ATR has concerns with respect to Google’s compliance with
paragraph 12(d) of the Modified Protective Order. Google has been diligent in providing notice
to the United States pursuant to Paragraph 12(d) of the Modified Protective Order, Dkt. 203, of
potentially privileged documents in the FAAs’ productions and in promptly complying with
3
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not even address its assertion of deliberative process privilege. While the parties met and conferred
again on August 16, 2023, they were not able to reach agreement.4
B.
Plaintiff Clawed Back Communications Between FAA Employees and Their
Advertising Agencies and Instructed Deponents Not to Answer Questions
Regarding Such Communications.
Five days after Plaintiff stood on its privilege assertions, on August 10, 2023, Google took
its second deposition of an FAA witness, Christopher Karpenko, the Executive Director of Brand
Marketing for the USPS during the Damages Period. During the deposition, Plaintiff improperly
clawed back two documents reflecting Mr. Karpenko’s pre-litigation communications with
USPS’s contracted advertising agency, Universal McCann. Despite permitting testimony on these
documents initially, counsel for the government prohibited the witness from answering further
questions about those documents or communications, claiming that the communications were at
the request of counsel. Counsel also instructed the witnesses not to answer questions relevant to
whether any assertion of privilege or work product was substantiated. (Karpenko Tr. 80:8-84:8).
Counsel for the government instructed Mr. Karpenko not to answer nearly a dozen questions on
this basis. (Karpenko Tr. 72:16-93:12, 109:11-109:21, 126:20-127:10, 131:15-132:5).
Similarly, at the August 15, 2023 deposition of Allen Owens, the Deputy Director and then
Director of Marketing for the Navy Recruiting Command during the Damages Period, counsel for
paragraph 12(c) upon receiving claw-back notices from the United States. See, e.g., Exs. 7–9 (July
31, August 1, and August 6, 2023 emails from M. Goodman to M. Wolin et al.).
On August 4, 2023, Plaintiff issued a claw-back notice for 96 documents from FAA files.
Plaintiff issued a second claw-back notice on August 14 for 6 documents, including the 2
documents it improperly clawed back during Mr. Karpenko’s deposition. On August 17, 2023,
Plaintiff issued another claw-back notice for 8 additional documents from FAA files, on the basis
that they “reflect[] requests for information and responses that were directed by DOJ relating to
Army digital advertising.” Ex. 10 (August 17, 2023 Letter from D. Grossman to E. Mahr et al.).
Google promptly complied with the Protective Order, but expects that many of the listed
documents have been improperly withheld for the same reasons articulated in this brief.
4
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the government instructed the witness seven times not to answer questions regarding the witness’s
communications with employees of VMLY&R or Wavemaker, advertising agencies with whom
the Navy contracted for advertising services, where such communications were asserted to have
been made at the request of counsel. (Owens Tr. at 22:11-23:8, 25:21-26:17, 30:19-31-12, 259:814, 274:2-23). In both depositions, counsel for the government described these communications
as privileged work product because they resulted from communications with counsel. (Karpenko
Tr. 80:16-20; Owens Tr. 30:25-31:7).5 In other words, Plaintiff takes the unsupported position
that any communication that follows sequentially from communications with counsel is protected
work product, even when those communications do not include any attorneys, are not directed by
any attorney, and are with percipient witnesses in this case who are neither agents of ATR nor
agents of the FAAs for purposes of this litigation. (Karpenko Tr. 120:5-121:21).6 As the
government’s lawyers have represented to counsel for Google, the agencies are “independent.”
Ex. 2 (June 12, 2023 Letter from K. Clemons to M. Goodman at 12).
Google met and conferred with the government on all of these privilege assertions again
on August 16, 2023, but did not reach agreement.
C.
Plaintiff Clawed Back the Entirety of Deposition Transcripts Relevant to This
Motion on the Morning of Filing.
At 8:14 am on Friday, August 18, 2023—knowing this Motion was being filed that same
day pursuant to the parties’ meet and confers—the government clawed back the entirety of both
Mr. Karpenko’s and Mr. Owens’ deposition transcripts. Ex. 1 (August 18, 2023 Letter from J.
Initially, counsel also asserted attorney-client privilege over the documents, (Karpenko Tr 110:3111:1), but later stated that the only protection being asserted was work product, and not the
attorney-client or deliberative process privileges. (Karpenko Tr.117:8-16, 119:8-20).
5
Plaintiff took this position after the witness provided testimony indicating he was not aware that
he would in any way be involved in this lawsuit. (Karpenko Tr. 49:7-50:5, 50:18-51:4, 53:5-9,
67:3-68:2).
6
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McBirney to E. Mahr, et al.). The basis for the clawback of the entirety of the transcript of Mr.
Karpenko’s deposition is that it reflects questioning and testimony as to the documents that were
clawed back. Id. (“we are also clawing back related deposition testimony that Google obtained
through its use of protected documents, including questions informed by information in those
documents that counsel persisted in asking even after we objected on privilege grounds”).
Similarly, the basis for the clawback of the entire transcript of Mr. Owens’ deposition is that he
“briefly became confused as to the meaning of the term ‘interrogatory’ as used by counsel when
being question about the Navy’s interrogatory responses without a copy of those responses being
provided to him.” Id. Notwithstanding that Plaintiff identified very limited portions of the
transcripts over which they claimed privilege, they requested “that Google return, sequester, or
destroy all copies of the deposition transcripts.” Id.
II.
APPLICABLE LEGAL STANDARD
“In the Fourth Circuit, work product and attorney-client privilege are construed ‘quite
narrowly,’” and are “recognized ‘only to the very limited extent that excluding relevant evidence
has a public good transcending the normally predominant principle of utilizing all rational means
for ascertaining truth.’” ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 251 (E.D. Va. 2012).
Likewise, the deliberative process privilege “is to be construed narrowly, and the burden rests upon
the government to be precise and conservative” in asserting such claims. Ethyl Corp. v. E.P.A.,
25 F.3d 1241, 1248 (4th Cir. 1994).
“A party asserting a privilege has the burden of showing that it applies.” ePlus, 280 F.R.D.
at 251; E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 36530, at *10
(E.D. Va. Apr. 13, 2010). A privilege log therefore must set forth “specific facts that, if credited,
would suffice to establish each element of the privilege or immunity that is claimed.” Bowne of
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N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993). “Once the claims of
privilege/protection have been challenged by the requesting party, the producing party must then
establish an evidentiary basis to support the privilege/protection claim.” Victor Stanley, Inc. v.
Creative Pipe, Inc., 250 F.R.D. 251, 254 n.2 (D. Md. 2008). As explained below, Plaintiff has not,
and cannot, meet its burden of establishing that any of these privileges apply to the documents and
testimony at issue.
III.
ARGUMENT
A.
FAA Employees’ Communications With Ad Agency Representatives and
ATR’s Information-Seeking Outreach To Federal Agencies Are Not Entitled
to Work Product Protection.
Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, which defines what constitutes
work product, provides that “a party may not discover documents and tangible things that are
prepared in anticipation if litigation or for trial by another party or its representative (including the
other party’s attorney, consultant, surety, indemnitor, insurer, or agent.”
Fed. R. Civ. P.
26(b)(3)(A). With respect to the work-product privilege, courts distinguish facts from opinion.
Facts may be obtained “upon a showing of both a substantial need and an inability to secure the
substantial equivalent of the materials by alternate means without undue hardship.” In re Grand
Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996).
1.
Communications Between Non-Lawyer FAA Employees and NonLawyer Ad Agency Employees Are Not Protected Work Product
Because the Ad Agencies Are Not Agents Working At the Direction of
Counsel.
Work product protection does not typically extend to third parties who are “not hired by
any attorney” and who do not “work[ ] for any attorney.” In re Grand Jury Proceedings, 102 F.3d
at 752 (declining to apply work product protection to work created by consultant hired by bank
subject to investigation “before any lawyer was involved in representing the Bank and [who]
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reported the results of his investigation to the Bank itself”); Echavarria v. Roach, 2019 WL
6893034, at *3 (D. Mass. Dec. 17, 2019) (memos prepared by independent institution where
institution was not an attorney’s agent or representative are not work product); Burwell v. Peyton,
2014 WL 12717390, at *3 (D. Vt. Apr. 17, 2014) (written summary of a telephone conversation
involving plaintiff, his uncle, his attorney, and his therapist not work product because there was
“no evidence” the therapist “was acting as an agent of” the plaintiff’s attorney or acting “at the
behest” of the plaintiff’s attorney). Accordingly, facts gathered by a non-lawyer FAA employee
from their non-lawyer ad agency contacts are not protected by the work product doctrine.
The advertising agencies are independent third-parties that do not work at the direction of
ATR. Counsel for the government has represented time and again during discovery conferrals that
the FAAs “do not control the actions of the advertising agencies, which are independent
companies.” Ex. 2 (June 12, 2023 Letter from K. Clemons to M. Goodman at 12). Thus, Plaintiff
had to, like Google, resort to seeking data or information from the ad agencies “via Rule 45
subpoenas.” Id.7 It therefore defies Plaintiff’s own representations throughout the course of
discovery to claim during depositions of FAA witnesses, and with respect to documents exchanged
between FAA non-attorneys and ad agency personnel, that such communications or documents are
protected work product. The relationship between the federal agencies and their advertising
agencies is a business relationship for advertising services—not litigation services, as the FAAs’
interrogatory responses make clear. See, e.g., Ex. 11 (Plaintiff’s Responses to Google’s First Set
The circumstances here are unlike United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961), and
the cases following it, where the attorney-client privilege applied to exchanges between a client
and accountant when the accountant is “necessary” for “the effective consultation between the
client and the lawyer.” Here, the advertising agencies were not retained by ATR; nor did the
advertising agencies “interpret” complex concepts so that the FAAs could obtain legal advice from
ATR. Id. (“If what is sought is not legal advice but only accounting service, or if the advice sought
is the accountant’s rather than the lawyer's, no privilege exists.”).
7
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of Interrogatories, Appendices C, D, and G (April 26, 2023)).8 Nor is there any contractual or
agency relationship between ATR and ad agencies such that the ad agencies are working at the
direction of counsel. E.g., In re Lumber Liquidator S Chinese-Manufactured Flooring Prod.
Mktg., Sales Pracs. & Prod. Liab. Litig., 2015 WL 9474286, at *2 (E.D. Va. Dec. 28, 2015)
(client’s “agents are generally, and presumptively, not within the protected circle of privileged
attorney-client communications”); Goff v. United Rentals (North America), Inc., 2017 WL
1179158, at *2–3 (E.D. Va. Mar. 28, 2017) (communications between party and insurer were
“ordinary course” communications, not protected work product); Addi v. Corvias Mgmt.-Army,
LLC, 339 F.R.D. 594, 598 (D. Md. 2021) (requiring production of “raw information” collected by
contractors of a party in the ordinary course because they were not protected work product).
As independent companies, the advertising agencies are no different than any other third
parties Plaintiff has identified on its initial disclosures as having relevant information. For
example, if an FAA or other federal agency reached out to The Trade Desk, or Microsoft, or Meta,
that communication would be discoverable. Communications that the FAAs and other federal
agencies have had with advertising agencies are no different. The advertising agencies—just like
The Trade Desk, Microsoft, and Meta—are independent third parties, and communications that
the FAAs and other federal agencies had with them are discoverable, regardless of whether they
were as a result of communication with counsel. See Johnson v. Baltimore Police Dep’t, 2021
WL 1985014, at *4 (D. Md. May 18, 2018) (holding that documents and discussions with thirdparty prior to his deposition were not work product); S.E.C. v. Gupta, 281 F.R.D. 169, 173
(S.D.N.Y. 2012) (“Although work product protection applies more broadly than the strict
Google does not concede that the ad agencies are “agents” of the FAAs for any purpose
whatsoever, and reserves all rights to argue no principal-agent relationship exists between them.
8
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requirements of attorney-client privilege, the type of disclosure to a non-party witness presented
here falls beyond the ‘zone of privacy’ protection an attorney needs to prepare his case.”).
2.
ATR’s Pre-Litigation Outreach to Federal Agencies for Fact Gathering
Is Not Work Product.
ATR’s pre-suit communications with federal agencies regarding their display advertising
purchasing practices does not qualify as work product. As the subject lines of the emails listed on
the June 26 privilege log demonstrate, these communications were for the purpose of fact gathering
and, as such, belong in ATR’s investigative file, which is discoverable. The “driving force” behind
these communications was to understand how federal agencies purchase digital advertising. Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th
Cir. 1992). These communications are no different from DOJ’s communications with any third
party from which it solicited information related to its investigation and the subject matter of this
lawsuit, and Plaintiff has provided no basis to distinguish ATR’s communications with third
parties, which it has produced, see, e.g., Ex. 12 (DOJ-ADS-B-0000026658), and its
communications with federal agencies, which it has withheld. Many of the logged documents
appear to seek or relay information from departments and/or agencies that are not even parties to
this case. Spilker v. Medtronic, Inc., 2015 WL 12851391, at *2 (E.D.N.C. Jan. 6, 2015) (“several
courts have denied non-parties work product protection”) (collecting cases); see also Gupta, 281
F.R.D. at 173.9
At Plaintiff’s request, the Court ruled that discovery from agencies on whose behalf the
government does not seek damages constitutes non-party discovery. U.S. Br. re the Scope of Fed.
Agency Discovery in the Parties Joint Proposed Discovery Plan at 2 (Dkt. 92) (“The United States
does not seek damages on behalf of the entire federal government writ large, and for that reason,
if Google seeks, for its own purposes, to obtain discovery from other federal agencies on whose
behalf the United States is not seeking damages, it should do so through standard means of nonparty discovery.”); Rule 16(b) Scheduling Order ¶ 8 (Dkt. 94) (adopting plaintiffs’ proposal for
Section 6.G(iii), which states that “Current and former employees of the Federal Agency
Advertisers will be considered party witnesses . . . but current and former employees of any other
9
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3.
Even If Plaintiff’s Work Product Assertions Were Proper, the
Withheld Information Constitutes Only Factual Information for
Which Google Has a Substantial Need and Cannot Otherwise Obtain
Without Undue Hardship.
The documents and testimony Plaintiff seeks to shield from discovery reflect purely factual
information in communications involving non-parties. Google should be able to discover them
because it has a “substantial need,” and is unable “to secure the substantial equivalent of the
materials by alternate means without undue hardship.” Duck v. Warren, 160 F.R.D 80, 82 (E.D.
Va. 1995); In re Grand Jury Proceedings, 102 F.3d at 750.
First, substantial need has been found where materials sought relate to the government’s
ability to “define the ‘relevant market’ to prevail.” United States v. Booz Allen Hamilton, Inc.,
2022 WL 3921019 at *2-3 (D. Md. Aug. 31, 2022) (disclosure of factual information compelled
over work product assertion). FAA employees’ unvarnished views and reactions to ATR’s
inquiries regarding the FAAs’ purchases of digital advertising is critical evidence that could
contradict Plaintiff’s gerrymandered, overly narrow market definition, as could other information
provided by FAAs and other federal agencies in connection with ATR’s investigation.
The significance of the requested information is underscored by a document introduced
during the deposition of USPS’ Mr. Karpenko and his related testimony. After the Office of
Inspector General (“OIG”) asked Mr. Karpenko whether USPS “purchased any advertising on the
open web in third-party websites,” Mr. Karpenko asked for clarity on what the OIG was seeking
because he—a long-time marketing and advertising industry veteran for the USPS—did not
understand what OIG was asking. Ex. 13 at 2 (USPS-ADS-0000140586); (Karpenko Tr. at 57:1458:18). The OIG employee acknowledged that his use of the term “advertising on the open web
executive branch agency of the United States will be considered non-party witnesses.” See Joint
Proposed Discovery Plan (Dkt. 87)).
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in third-party websites” is “probably” “different[] than what you is [sic] commonly used in
advertising.” Ex. 13 at 2 (USPS-ADS-0000140586). This exchange is just one illustration of how
Plaintiff’s use of the term “open web display advertising,” the government’s proffered market
definition, defies the commercial realities of how industry participants define the market for
available advertising. Google has a substantial need for other similar communications reflecting
exchanges between ATR and federal agencies in the context of ATR’s outreach, and between
federal agencies and their ad agencies, as well as testimony regarding such communications in
order to demonstrate that Plaintiff’s alleged antitrust markets were manufactured solely for
purposes of this litigation and do not “correspond to the commercial realities of the industry.”
Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne LLC, 2011 WL
5872885, at *4 (E.D. Va. Nov. 22, 2011) (quoting Brown Shoe Co. v. United States, 370 U.S. 294,
336 (1962)).
Moreover, in evaluating substantial need, the “Fourth Circuit has recognized the special
value of contemporaneous statements.” Coogan v. Cornet Transp. Co., Inc., 199 F.R.D. 166, 16768 (D. Md. 2001) (finding that party had demonstrated “substantial need” for statement which
captured the defendant’s “immediate perceptions,” and was “uninfluenced by the passage of time
or his present status as a” party). These percipient fact witnesses’ immediate reactions to what
they perceived as routine, ordinary-course requests for information is vital discovery untainted by
any attorney-education of these witnesses. Ex. 14 (Oliphant Tr. 65:14-66:16). Nat’l Union, 967
F.2d at 985 (party seeking discovery has substantial need for “[s]tatements of either the parties or
witnesses taken immediately after the accident and involving a material issue in an action” because
they are “unique catalysts in the search for truth”).
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Second, Google is unable “to secure the substantial equivalent of the materials by alternate
means without undue hardship.” In re Grand Jury Proceedings, 102 F.3d at 750. Google has ten
party depositions, and twenty non-party depositions. Given the deposition limits in this case,
Google cannot depose each of the federal employees ATR communicated with or each of the
twenty ad agencies relevant to this case, which worked for eight different FAAs. Given the
breakneck speed of this case, limited discovery available, and scores of witnesses listed on
Plaintiff’s initial disclosures, substantial need is more than satisfied to overcome the government’s
work product claim with respect to the communications at issue. Booz Allen Hamilton, Inc., 2022
WL 3921019 at *2, 4 (finding substantial need where “the breakneck speed of this litigation has
diminished the availability of alternative sources for this information” and a “deposition’s
usefulness may be limited in this context without the requested documents”). Even if it were
possible to depose every federal employee ATR communicated with and every ad agency relevant
to this case, they “might not be able to recall sufficient detail” regarding the facts Google seeks to
discover. Fed. Elec. Comm’n v. Christian Coal., 178 F.R.D. 456, 466 (E.D. Va. 1998); e.g., APL
Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 13–14 (D. Md. 1980) (“it is not unlikely that the
documents from Aetna’s files reflecting its investigation of plaintiffs’ claim will themselves be
capable of establishing in the most effective way what information Aetna had in its possession
when Aetna decided to deny plaintiffs’ claim”); see also Fed. R. Civ. P. 26(b)(3), Adv. Cmte. note
(recognizing the need for discovery of witness statements from an investigative file giving a “fresh
and contemporaneous account”).10
Moreover, substantial need exists, where—as here—“the documents sought contain statements
that might impeach a witness.” Duck, 160 F.R.D. at 83. Plaintiff has asserted a claim for damages
on the basis that various government agencies “are buyers of open web display advertising” and
have incurred “monetary damages.” Am. Compl. ¶ 341 (Dkt. 120). Communications
demonstrating that ATR embarked on a beat-the-clock search for federal agencies who may have
been damaged, especially those that demonstrate agencies were not damaged or otherwise
10
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Third, to the extent they contain protected information (attorney impressions, for example),
the documents should be produced with those portions redacted. See In re Royal Ahold N.V. Secs.
& ERISA Litig., 230 F.R.D. 433, 437 (D. Md. 2005).
B.
Pre-Suit Communications Between ATR and Federal Employees Are Not
Protected by the Attorney-Client Privilege.
Because the attorney-client privilege “impedes the full and free discovery of the truth . . .
[it] is to be narrowly construed.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (cleaned
up). To establish that the privilege applies, the proponent must show that:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a court,
or his subordinate and (b) in connection with this communication is acting as a
lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in
some legal proceeding, and not (d) for the purpose of committing a crime or tort;
and (4) the privilege has been (a) claimed and (b) not waived by the client.
In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003) (citation omitted) (emphasis added).
This test applies equally to attorney-client privilege within the government as it does outside the
government. Stonehill v. U.S. Dep’t of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C.
Feb. 10, 2022) (citations omitted).
The June 26 privilege log demonstrates that beginning in late December 2022 and through
mid-January 2023, ATR reached out to a number of federal government employees with requests
for information. Neither ATR’s outreach, nor the responses by federal agency employees, are
privileged because (1) there was no attorney-client relationship between ATR and the agencies;
and (2) the communications were not for the purpose of seeking legal advice.
undermine Plaintiff’s factual assertions throughout the complaint, are “invaluable” information
and therefore satisfy the “‘substantial need’ required to overcome the work product immunity.”
Duck, 160 F.R.D. at 83.
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1.
At the Time of the Communications, the Federal Agencies Were Not,
and Were Not Seeking to Become, ATR’s Clients.
There is no factual or legal basis for ATR to assert that when it sent unsolicited emails to
federal agencies there was any attorney-client relationship between ATR and the agencies. In re
Grand Jury Subpoena: Under Seal, 415 F.3d 333, 339 (4th Cir. 2005) (the attorney client
relationship “hinges upon the client’s belief that he is consulting a lawyer in that capacity and his
manifested intention to seek professional legal advice”). ATR does not automatically have an
attorney-client relationship with all federal agencies; instead, ATR must meet the same burden as
any party that seeks to claim the attorney-client privilege. Stonehill, 2022 WL 407145, at *23
(government did not meet its burden of establishing privilege where “there is nothing indicating
that the IRS employee was a client or the attorneys were acting in their capacity as lawyers, or that
the communication was confidential or even legal in nature”). Just as a lawyer cannot create an
attorney-client relationship by sending letters to potential plaintiffs or class representatives, ATR
cannot create an attorney-client relationship with any employee in the federal government by
sending them an email. U.S. E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503, 508 (E.D. Cal. 2009)
(sending letters to potential members of a class action does not create an attorney-client
relationship). “At its core,” Plaintiff’s “argument regarding the existence of an attorney-client
relationship relies solely on the fact that it” reached out to the federal agencies “in order to further
develop the group of claimants on whose behalf it sued. That is not enough.” Id. Importantly,
that argument is also contrary to Plaintiff’s position that non-FAA federal agencies are not parties
for purposes of discovery. See infra note 9.
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2.
The Communications Were Not Made for the Purpose of the Federal
Agencies Securing Legal Advice.
Even if there were a preexisting attorney-client relationship between ATR and any of the
federal agencies reflected on the June 26, 2023 log, there is no evidence that any of these agencies
were seeking legal advice from ATR. Affirmative testimony from the FAA deponents to date
demonstrates exactly the opposite—that they were not seeking legal advice from ATR. The FAAs
responded to DOJ’s requests for information, but witnesses testified they did not seek legal advice
from DOJ. Ex. 14 (Oliphant Tr. at 64:3-12, 332:16-335:22) (“Q. Have you ever sought . . . legal
advice from an attorney at the antitrust division of the Department of Justice? . . . A. No. . . . Q.
Do you consider the lawyers for the antitrust division to be lawyers for the [C]ensus [B]ureau? . .
. A. I do not.”); Ex. 15 (Horning Rough Tr. at 2-3) (“Q. Have you ever requested legal advice from
the Department of Justice Antitrust Division?” “A. No.”)11; (Owens Tr. at 46:3-14, 89:4-7).
Rather, the FAA witnesses had no reason to seek legal advice from antitrust attorneys, as they have
uniformly testified they were not aware of any anticompetitive conduct by Google. Ex. 14
(Oliphant Tr. at 63:6-11), (Owens Tr. at 210:22-2:11:4; Karpenko Tr. at 139:3-8).12
The privilege assertions reflected in the rough transcript of the deposition of Mr. Horning, taking
place on the day on which this Motion is being filed, reflect the breadth and impropriety of
Plaintiff’s privilege assertions. E.g., Ex. 15 (Horning Rough Tr. at 2-19) (instructing witness not
to answer questions regarding his understanding of the reason for his conversations with ATR,
whether ATR ever “requested information about digital advertising purchases” (a yes or no
question), whether ATR lawyers present at the deposition explained to Mr. Horning the purpose
of a previous interview (a yes or no question), Mr. Horning’s understanding of the purpose of that
interview, Mr. Horning’s understanding as to the possibility of litigation during the time he was
having pre-suit discussions with ATR, and regarding communications between Mr. Horning and
individuals at the advertising agency DDB, who provide services for the Army).
11
Google originally intended to quote portions of the transcripts from the depositions of Mr.
Karpenko and Mr. Owens in support of this argument. Given Plaintiff’s last-minute clawback of
these transcripts, Google has not quoted from these transcripts, and has submitted them for in
camera review.
12
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Exhibit 13—a January 9, 2023 email exchange between Matthew Gardner, a USPS OIG
investigator, and Mr. Karpenko—illustrates exactly why Plaintiff’s privilege assertions are
improper. This document, which appears to be similar to documents listed on Plaintiff’s privilege
log, is clearly an inquiry requesting factual information, not a request for or provision of legal
advice. Mr. Gardner states that he is:
gathering information that pertains to an inquiry we are currently conducting. We are trying
to determine whether the U.S. Postal Service purchased any advertising on the open web
in third-party websites such as nytimes.com, cnn.com, or bloomberg.com. . . . We are
hoping to learn how these advertising services are purchased, which platforms are used to
go about making these purchases, and approximately how much money the USPS has spent
on this type of advertising over the past four years.
Ex. 13 at 2 (USPS-ADS-0000140586). In response, Mr. Karpenko informs Mr. Gardner that
“coincidentally, we have a meeting with DOJ tied to something very simila[r].” Ex. 13 at 2 (USPSADS-0000140586). Mr. Karpenko also testified that he suspected that OIG and ATR may have
been working in tandem given that DOJ was also making similar inquiries. (Karpenko Tr. 67:368:2. ).13
The subject line of the emails in Exhibit 13, “OIG Request for Assistance,” is just like the
June 26 privilege log entries where DOJ requests information, over which Plaintiff has asserted
attorney-client privilege, work product, and deliberative process privilege. Further, OIG itself
appears on the June 26 privilege log in eight entries, all of which were sent either the same day as
the email in Exhibit 13, or one day later. See Ex. 4 (June 26 privilege log) Rows 38, 44-50. The
only difference between the OIG email to which Mr. Karpenko testified and the OIG emails over
which ATR asserts privilege is that an ATR attorney is on them. But as Plaintiff knows, “[a]
Other documents produced by USPS reveal that ATR contacted USPS around the very same
time and regarding the same topic. For example, employees of USPS, including Chris Karpenko,
and attorneys from ATR met by Zoom on January 11, 2023. Ex. 16 (USPS-ADS-0000031693).
The subject of the conversation was: “Discussion with DOJ Regarding Digital Advertising.” Id.
13
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communication is not privileged simply because one of the parties is an attorney” and “simply
copying an attorney on a communication . . . [does not] cloak that communication with the
attorney-client privilege.” CSX Transp., Inc. v. Norfolk S. Ry. Co., 2020 WL 12862960, at *2
(E.D. Va. Aug. 21, 2020).
Far from revealing any federal agency’s request for legal advice, the communications in
question—as evidenced by the subject lines on the privilege log—only reflect DOJ seeking and
receiving factual information from the federal agencies, and facts are not privileged. The
communications should not reflect confidential information relayed by the FAA to ATR for the
purpose of the FAA seeking, or ATR providing, legal advice based on FAA witnesses’ express
denial that they were seeking legal advice from ATR. Ex. 14 (Oliphant Tr. at 64:3-66:9); Ex. 15
(Horning Rough Tr. at 2-3); (Karpenko Tr. at 49:7-51:4, 139:3-8; Owens Tr. at 46:3-24, 88:2589:7). Nor has ATR shown that it was providing legal advice to any federal agency based on such
communications. See Stonehill, 2022 WL 407145, at *23. Because “DOJ was simply exploring
the factual background” underlying its potential damages claim, “its correspondence with the
[agencies] may not be protected by attorney-client privilege.” United States v. Booz Allen
Hamilton, Inc., 2022 WL 3921019 at *3 (D. Md. Aug. 31, 2022).
C.
Plaintiff Fails To Show The Deliberative Process Privilege Applies To FactGathering Communications With Federal Employees.
The deliberative-process privilege is not a blanket protection for all inter-agency
communications—it only protects inter-agency communications or documents that are both
“predecisional” (i.e., “generated before the agency’s final decision on the matter”) and
“deliberative” (i.e., “they were prepared to help the agency formulate its position”). U.S. Fish &
Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021); Dipace v. Goord, 218 F.R.D. 399,
403 (S.D.N.Y. 2003); Ethyl Corp. v. E.P.A., 25 F.3d 1241, 1248-49 (4th Cir. 1994) (“When
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material could not reasonably be said to reveal an agency’s or official’s mode of formulating or
exercising policy-implicating judgment, the deliberative process privilege is inapplicable.”)
Further, the deliberative process privilege “protects advice and opinions,” not “facts unless they
would indirectly reveal the advice, opinions, and evaluations circulated within the agency as part
of its decision-making process.” Rein v. U.S. Pat. & Trademark Off., 553 F.3d 353, 371 n.26 (4th
Cir. 2009); see Ethyl Corp., 25 F.3d at 1250 (deliberative process privilege does not protect the
exchange of facts and information in the course of an investigation).
As reflected in Exhibit 13, which, as explained above, Google believes is representative of
the documents on the June 26 privilege log, emails ATR is withholding do not reflect advice or
opinions, but instead show ATR reaching out to agencies for factual information; the emails do
not reveal any decision being made. Likewise, both Ms. Oliphant’s and Mr. Karpenko’s deposition
testimony confirms that the communications in question reflect a fact-gathering mission, as
opposed to a decisional process. Ex. 14 (Oliphant Tr. at 64:3-66:9); (Karpenko Tr. at 49:7-51:4,
54:17-55:10, 136:3-9, 139:3-8). Nothing in these fact-gathering communications reflects “advice,
opinions, [or] evaluations,” and therefore it does not qualify as “deliberative.” Rein, 553 F.3d at
371 n.26; Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Balt., 508 F.2d 945, 948 (4th Cir. 1974)
(a document that “neither expressed an opinion nor made a recommendation,” but instead
“contains no more than inferences that are essentially similar to the findings which preceded it”
does not reflect “the deliberative processes of decision or policymaking”); Playboy Enters., Inc. v.
Dep’t of Justice, 677 F.2d 931, 935-36 (D.C. Cir. 1982) (report not protected by deliberative
process privilege where it reflected task force’s mission “to investigate the facts surrounding
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certain events”).
Even if the privilege did apply, the Court should still order these documents produced
because they are evidence going to, among other things, Plaintiff’s ability to prove its contrived
market definition, a core issue in the case, and the need for this highly relevant evidence far
outweighs any arguable deliberative process protection. Supra, § III.A.3; see NAACP v. Bureau
of Census, 401 F. Supp. 3d 608, 617 (D. Md. 2019) (validity of deliberative process depends “upon
a balancing of the public interest in nondisclosure with the need for the information as evidence,”
including by considering “the relevance of the evidence to the lawsuit” and “the government’s role
(if any) in the litigation”); Booz Allen Hamilton, Inc., 2022 WL 3921019 at *2-3 (disclosure of
factual information compelled over deliberative process assertion where materials were relevant
to DOJ’s ability to define “relevant market,” availability of alternative sources for information was
diminished by virtue of speed of litigation, and government was a party to the case).
Moreover, when “the government is a party to a case, it has a ‘more central role in the
litigation’ which ‘weighs in favor of disclosure.’” Booz Allen Hamilton, 2022 WL 3921019, at *2.
Here, disclosure is appropriate because ATR and the FAAs are parties to the action and the
documents are “of the nature that a non-governmental entity . . . would have to produce during
discovery.” F.D.I.C. v. Hatziyannis, 180 F.R.D. 292, 294 (D. Md. 1998); United States v. Ernstoff,
183 F.R.D. 148, 153 (D.N.J. 1998) (when government seeks affirmative relief it should be required
to turn over any documents that a private person would).
D.
In the Alternative, Google Requests that the Court Conduct an In Camera
Review.
Because Plaintiff’s assertions of privilege for the 57 documents on its June 26 log—based
on the log entries alone—and the documents clawed back at deposition and through Plaintiff’s
recent letters are improper, Plaintiff should be required to produce them. To the extent the Court
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needs additional information to assess Plaintiff’s privilege assertions, Google requests that the
Court conduct an in camera inspection of a sample of the withheld documents as well as the two
documents clawed back at Mr. Karpenko’s deposition. A court may conduct in camera review
where it would be helpful “for the Court correctly to apply the Fourth Circuit’s attorney-client
privilege law, including the limitations that are inherent in that body of law.” F.T.C v. Reckitt
Benckiser Pharm., Inc., 2015 WL 1062062, at *8 (E.D. Va. Mar. 10, 2015); see also Morrison v.
Cty. of Fairfax, 2014 U.S. Dist. LEXIS 189528, at *6 (E.D. Va. June 19, 2014) (“Clearly not all
communications involving an attorney are subject to the attorney-client privilege and those
communications must be reviewed individually to see if they satisfy the above requirements.”);
Asghari–Kamrani v. United Servs. Auto. Ass’n, 2017 WL 553402, at *6 (E.D. Va. Jan. 20, 2017)
(noting courts typically “must determine, from an examination of the documents or their
circumstances, whether they were prepared in anticipation of litigation or for trial”).
Here, Plaintiff has failed to carry its initial burden of demonstrating that the attorney-client
privilege, the work product doctrine, and/or the deliberative process privilege apply to the
documents at issue. But even if it had, Google has come forth with sufficient evidence to justify
in camera inspection of the documents. Where the party asserting the privileges have established
the factual basis for each of its claimed assertions, the party seeking in camera review must present
“a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may
reveal evidence that information in the materials is not privileged.” In re Zetia (Ezetimibe)
Antitrust Litig., 2019 WL 6122012, at *4 (E.D. Va. July 16, 2019) (internal quotations omitted).
Exhibits and testimony of FAA witnesses, as explained above, demonstrate exactly why Plaintiff’s
privilege assertions are improper.
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E.
There Is Good Cause to Modify Section V.8.e. of the Protective Order and
Require ATR to Provide an Individualized Log of Pre-Complaint
Communications with FAA Counsel.
The ESI Order states expressly: “Nothing in this order precludes any party from moving,
upon a showing of good cause, to modify these exclusions with respect to specific requests for
production.” Dkt. 142 at n.5. The June 26 privilege log, along with the testimony adduced in FAA
depositions thus far, calls into question whether Plaintiff is using the ESI order to conceal the fact
of Plaintiff’s improper privilege assertions from Google, providing “good cause” for modification
of Section V.8.e. Google therefore requests that Section V.8.e be amended to require Plaintiff to
produce an individualized privilege log for pre-litigation communications between ATR personnel
and FAA attorneys prior to January 24, 2023. The incremental burden to Plaintiff should be
marginal as the June 26 privilege log shows that ATR’s communications with federal agencies—
including some FAAs—related to the subject matter of the investigation began around December
23, 2022–just a month before it filed its Complaint. Moreover, Google has acted promptly and in
good faith in bringing this motion. Plaintiff informed Google on August 5, 2023 that it would not
produce an individualized privilege log for communications between DOJ personnel and FAA
attorneys prior to January 24, 2023 that are responsive to RFP 5, the parties met and conferred on
August 16, 2023, and Google filed its motion two days later.14
As a close analog to the instant request, the factors to be considered under the good cause
standard in Fed. R. Civ. P. 16(b)(4) and E.D. Va. Loc. Civ. R. 16(b) “include the danger of
prejudice to the non-moving party, the length of delay and its potential impact on judicial
proceedings, the reason for the delay, and whether the movant acted in good faith.” Roe v. Howard,
2017 WL 3709088, at *1 (E.D. Va. June 30, 2017) (citing Guerrero v. Deane, 2012 WL 3068767,
at *2 (E.D. Va. July 27, 2012) (emphasis added).
14
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IV.
CONCLUSION
Google respectfully requests that the Court grant this motion and order Plaintiff to produce
the 57 documents listed on the June 26 privilege log and the documents clawed back during Mr.
Karpenko’s deposition and through Plaintiff’s August 4, 2023 and August 17, 2023 letters. Google
also requests that the Court order Plaintiff to permit questioning of FAA witnesses on all
communications between the witness and employees of the FAA’s advertising agency
contractor(s).
Alternatively, Google seeks an in camera review of a sample of those documents by the
Court to assess Plaintiff’s privilege claims. In addition, Google requests that the Court modify
Section V.8.e. of the ESI Order to require Plaintiff to log communications between the ATR and
FAA counsel that predate January 24, 2023 and are responsive to Google’s Fifth Request for
Production or were part of the DOJ’s Investigative File.
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Dated: August 18, 2023
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
eric.mahr@freshfields.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street, NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
Counsel for Defendant Google LLC
Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite 501
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
craig.reilly@ccreillylaw.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-1047
Telephone: (202) 223-7300
Facsimile (202) 223-7420
kdunn@paulweiss.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA 94105
Telephone: (646) 432-5100
Facsimile: (202) 330-5908
mdearborn@paulweiss.com
Erin J. Morgan (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3387
Facsimile: (212) 492-0387
ejmorgan@paulweiss.com
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