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EXHIBIT FILED UNDER SEAL
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Liberty Square Building
450 5th Street, N.W.
CONFIDENTIAL
Martha L. Goodman
Paul, Weiss, Rifkind, Wharton & Garrison LLP
2001 K Street, NW
Washington, DC mgoodman@paulweiss.com
Re: United States, et al. v. Google LLC, No. 1:23-cv-00108-LMB-JFA
Dear Counsel:
I write in reply to your June 6, 2023 letter regarding the ongoing negotiations with
respect to the United States’ discovery responses related to FAAs, as well as your June 9, email memorializing our June 9, 2023 meet and confer.
As a preliminary matter, we write to address the comments in your June 6 letter
concerning the timing of the United States’ productions. As discussed during our June 9 meet
and confer, the United States is diligently working to process, review, and prepare documents for
production. In addition to the millions of investigatory file documents we produced in April,
which included over 67,000 pages from internal Antitrust Division files, we produced an initial
set of FAA documents on May 31. We anticipate being able to make substantial weekly
productions following that FAA production, including one last Friday and another today
containing collectively over 15,000 documents (140,000 pages) from Census and Air Force, and
an additional volume containing ~20,000 documents from USPS in the next few days. We note
that as of May 31, Google, despite having had the United States’ specific custodian and search
term proposals since early in the discovery period, had produced zero documents in response to
the United States’ document requests and had clawed back over a thousand documents produced
years earlier.
FAA Custodians
With respect to the summary laid out in your June 6 letter of the United States’ May custodian proposal, we confirm that your understanding is correct with a few clarifications: we
intend to search custodial emails for the January 1, 2018-January 24, 2023 period, using search
terms in the United States’ May 13 letter (plus revised Search String No. 19, as set out below),
for the period(s) that the individual custodian was in a relevant role at the FAA. Where the
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custodian was not in a relevant role (i.e., one involving digital advertising, or contracting related
to digital advertising, for the FAA), we do not intend to search those files, if they exist.
Regarding your questions concerning non-email custodial files, we respond to each
below:
1. Will the United States agree to search chats, instant messages, or other
ephemeral communications of the Appendix A custodians using the United
States’ proposed May 13 search terms?
• As a preliminary note, we do not agree with Google’s characterization of
chats and instant messages as “ephemeral communications” in this question,
as an ephemeral communication is one that is set up to be or is by its nature
temporary and/or auto-deleting across all senders and recipients. It is also a
designation that is agnostic to the form of communication (e.g., Gmail
confidential mode emails qualify as ephemeral or quasi-ephemeral messaging
under Sedona Conference guidance, whereas messages sent via many
common instant messaging platforms do not, see The Sedona Conference,
Commentary on Ephemeral Messaging, 22 SEDONA CONF. J. 435, 449-(2021)).
• Following a reasonable inquiry, we are not aware of any of the individuals in
Appendix A to your June 6 letter (or the additional custodians proposed
below) having used ephemeral messaging systems for business purposes.
• The United States will search available sources containing chats, instant
messages, or other forms of communication for each agreed upon custodian
that the United States is aware, based on reasonable inquiry, are likely to
contain responsive non-duplicative documents or communications based on
the individual custodian’s usage of messaging applications for business
purposes, if any.
• We note that the United States already indicated in our prior letters that we
intended to search Microsoft Teams documents and chats where applicable,
e.g., as part of Army’s central and custodial files. We are conducting a
reasonably diligent inquiry with respect to the documents maintained by the
individual custodians listed in Appendix A and do not intent to exclude from
our search any sources likely to contain non-duplicative responsive
documents, including chats and instant messages. Until the search terms
have been applied and the document reviewed for all custodians, we do not
know which custodians or FAAs will have responsive chats or instant
messages, but if we have reason to believe a custodian engages in substantive
communications regarding advertising via chat or instant message, we are
collecting those materials that exist and will include them in our search. As
of now, we have not identified responsive chats or instant messages outside
of Army central and custodial files.
2. For the custodians in Appendix A, please confirm that each custodian was in a
role involving “primary responsibility for decision-making and analysis
regarding digital advertising strategy, liaising with contractors related to open
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web display advertising, and/or contracting for advertising services,” over the
2019-2023 period, as reflected in the United States’ Interrogatory 12 responses.
If any particular custodian was not in such role for the entirety of the 20192023 period, please confirm the dates of their employment in such role and
confirm that you will identify their predecessor or successor and conduct the
same search, collection, and review of predecessor or successor custodial
documents.
• For many of the custodians in Appendix A, we have already included
predecessors or successors where applicable. Michael Bottenberg, for
example, succeeded Brian Pasco in the role of Digital Marketing Specialist at
USPS, and neither was in a relevant role at USPS during the period that the
other held the position, but together they cover the entire damages period.
• Army:
• For Army, as previously noted, the legacy recruiting and marketing
organization that existed prior to August 2019 was dismantled and a
team of new personnel was assembled to form the current Army
Enterprise Marketing Organization (AEMO) with little carryover from
the previous organization.
• As part of this reorganization effort, Army created new roles that had
previously not existed, and there is very little institutional knowledge
remaining about the legacy organization. As such, there is no
custodian or set of custodians capable of covering the entire period
from January 2019 to January 2023.
• As previously discussed, however, AEMO personnel routinely use
shared workspaces and file storage to communicate and work, and the
United States will be searching those central files, which will also
include any documents transferred over from the legacy organization.
We continue to take the position that these central files will provide
more than enough of the types of documents and communications
Google is seeking.
• In the interest of reaching an agreement on custodians swiftly to allow
us to reallocate resources currently devoted to these negotiations to
meeting our discovery obligations in a timely manner, however, we
propose to add two custodians to our search of Army files if doing so,
along with the other compromises and agreements set forth in this
letter, will facilitate swift resolution of these negotiations. Specifically,
the United States will agree to search the custodial files of Col. Matt
Weinrich, AEMO Chief of Staff, and Maj. Austin Dziengelewski, Data
and Performance Branch Chief. As Chief of Staff, Col. Weinrich
coordinates the work of AEMO’s various units. Prior to his retirement
last month, Maj. Dziengelewski reported to John Horning, one of the
original two custodians. Those four custodians collectively will cover
the period from August 2019 through January 2023 with respect to
internal and external email communications on a broad range of
strategic and operational substantive advertising topics, which are
further covered by AEMO’s robust central files.
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•
•
Veterans Affairs:
• Veterans Affairs is a bit different from the other FAAs in that it does
not have a centralized communications or recruiting organization for
which a primary function is coordinating advertising strategy and
outreach efforts, advertising campaigns, and advertising contractor
relationships. Rather, Veterans Affairs campaigns and advertising
contracts are managed directly by the program managers for the
overarching programming initiatives to provide services to veterans,
which encompass far more than advertising and communications.
• As such, many of the listed individuals were only in a relevant role
with respect to advertising during the periods in which their programs
ramped up and executed an ad campaign and had an active contract
with an ad agency for the campaign. It is for this reason that while the
key custodians for other FAAs are communications and marketing
professionals, many of the custodians for Veterans Affairs are doctors
of medicine and public health. Their primary role is to run public
health initiatives to deliver services to veterans, and the advertising
campaigns underlying the United States’ damages claims for Veterans
Affairs are incidental to that broader role.
• For these reasons, it is not reasonable to search most of the Veterans
Affairs custodial files outside of the period in which they were acting
as program manager for an advertising campaign and/or contract task
order involving digital advertising, because doing so would be
searching their files during a time period in which their role was not
sufficiently related to the issues in this case. Nor is it reasonable to
identify predecessors or successors who served in those roles during
periods in which they were not responsible for any aspect of digital
advertising for Veterans Affairs. Therefore, the United States will
search these custodians’ files during the period in which they were in a
relevant role with respect to advertising, and will only search
predecessors’ and successors’ files to the extent that those processors
and/or successors were in a relevant role with respect to advertising.
• It is our understanding that the Veterans Affairs custodians listed
below, with two additional predecessors not previously listed in
Appendix A, cover the entire periods of contract task orders/campaigns
associated with the listed programs during the damages period, in
addition to the entire damages period with respect to the Director of
National Veteran Outreach Office role.
The period during which the proposed custodians, including eight individuals
from Appendix B that the United States is proposing to add as part of a final
compromise to address Google’s stated concerns, were in a relevant role at
the FAA is included in the table below.
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Name
Barry Dickey
FAA
Air Force
Roberta Hatch Air Force
Clay Hawkins
Air Force
Lennox Morris Army
John Horning
Army
Matt Weinrich Army
Title
Chief of Strategic
Marketing, Air Force
Recruiting Services
Contracting Officer, Air
Force Recruiting
Services
Deputy for Strategic
Marketing – Air Force
Reserve (former)
National Media Branch
Chief, Army
Enterprise Marketing
Office
Director of Strategy,
Innovation, and Data,
Army Enterprise
Marketing Office
Chief of Staff, AEMO
Austin
Army
Dziengelewski
Allen Owens Navy
Data and Performance
Branch Chief
Chief Marketing
Officer, Navy
Recruiting Command
Adelina Lozzi
Navy
Contract Specialist
Kendall
Johnson
Census
Bureau
Executive Director for
2020 Integrated
Communications
Campaign
Period in Relevant Role(s)
Pre-2019-Present
Dec. 2021-Present
(all predecessors during
damages period were in
ministerial role, all for only
6-12 months each)
2021-post-Jan. This was a new position, no
predecessor; successor started
after litigation commenced.
June 2021-Present
~May 2021-Present
Aug. 2019-Present
~Aug. 2019-May Pre-2019-Present
The person who was in his
current role until Feb has retired, but Owens has
been in a relevant role the
entire time performing the
same functions, and he is the
best source for documents,
as he was the Director of
Marketing Operations,
Deputy CMO, and then
CMO, and has substantively
performed a similar role
with respect to advertising
during the damages period.
Pre-2019-Present
Pre-2019-present
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Contract Officers’
Representative for
Order 8 (national
recruiting)
Director of the Strategic
Christopher
CMS
Marketing Group,
Koepke
Office of
Communications
Barbara
CMS
Division Director,
Johanson
Division of Campaign
Management, Strategic
Marketing Group, Office
of Communications
Susan McMeen NHTSA
Director, Office of
Communications and
Consumer Information
Associate Administrator,
Julie Vallese
NHTSA
Communications and
Consumer Information
Susan
NHTSA
Associate Administrator,
Gorcowski
Communications and
Consumer Information
(former)
USPS
Executive Director,
Chris
Brand Marketing
Karpenko
Michael
USPS
Digital Marketing
Bottenberg
Specialist
Brian Pasco
USPS
Senior Media/Digital
Marketing Specialist and
Contracting Officer’s
Representative (former)
Michael A.
Veterans Director of National
Veteran Outreach Office,
Taylor
Affairs
OPIA; and
James Cole
Census
Bureau
Pre-2019-present
(campaign/contract task
order ended in late 2021)
Pre-2019-present
Jan. 2019-May 2019 (acting);
May 2020-present
Pre-2019-present
May 2020-present
Pre-2019-May 2020 (retired)
(emails have been preserved)
Pre-2019-present
2021-present
Pre-2019-2022 (succeeded by
Michael Bottenberg)
Jan. 2022-Present
Has access to a shared file
with important documents
with respect to advertising
Program Manager for
oversight used/accessed by
ChooseVA Outreach and his predecessor in the
Strategic Communication National Veteran Outreach
Contract/Task Order (Feb. Office, Joseph Curtin.
2020 – Feb. 2024)
Mr. Taylor’s previous role
was the Director of VA
Homeless Veterans Outreach
& Strategic Communications.
He was not involved in digital
advertising between 2019 and
January 2022.
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Joseph Curtin
Lyndon
Johnson
Koby South
Veterans Director of National
Veteran Outreach Office,
Affairs
OPIA (former)
Veterans Program Manager
Affairs
(former) for ChooseVA
Outreach and Strategic
Communication
Contract/Task Order (Feb.
2020 – Feb. 2024)
Pre-2019-Dec. 2021 (retired)
(emails were preserved)
Veterans
Affairs
Pre-2019-present
Aimee Johnson Veterans
(former
Affairs
employee)
Juliana
Hallows
Veterans
Affairs
Dr. Susan
Strickland
Veterans
Affairs
James David
Leamon
(former
employee)
Veterans
Affairs
Program Manager for
VHA General Mental
Health and Suicide
Prevention Awareness
and Education Outreach
Support Services
Contract/Task Order
(Sept. 2017 – Mar.
2023)
Program Manager for
Office of Mental Health
and Suicide Prevention
Corporate
Communications
Contract/Task Order
(Oct. 2019 - end of
conractOct. 2020)
Program Manager for
Office of Mental Health
and Suicide Prevention
Corporate
Communications
Contract/Task Order
(Sept. 2018 – Sept. 2019)
Program Manager for
PREVENTS
Contract/Task Order
(Sept. 2019 – Nov. 2021)
Program Manager for
“Keep it Secure”
Contract/Task Order
(June 2022 – June 2023)
Program Manager for
“Keep it Secure”
Contract/Task Order
(Dec. 2021 – Apr. 2022)
Feb. 2020 (start of contract)Dec. 2021 (succeeded by
Michael Taylor)
Sept. 2018 (start of contract)Sept. 2019 (end of contract)
Sept. 2019 (start of contract)Nov. 2021 (end of contract)
June 2022 (start of contract)present
Dec. 2021 (start of contract)April 2022 (end of contract)
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Dr. Todd
Burnett
Veterans
Affairs
Dr. Eric
Shuping
Veterans
Affairs
Darren
Sherrard
Veterans
Affairs
Program Manager for
Suicide Prevention
Communications Support
Contract/Task Order (Oct.
2022 – June 2023)
Program Manager for
Airborne Hazards and
Open Burn Pit Registry
Contract/Task Order
(Sept. 2019 – Mar. 2021)
Program Manager for
VHA Recruitment
Marketing & Advertising
Campaign
Oct. 2022-present
Sept. 2019 (start of contract)Mar. 2021 (end of contract)
Pre-2019-present
3. For former-employee custodians listed in Appendix A, please confirm the end
dates of their employment and confirm that you will identify their successor
and conduct the same search, collection, and review of their successor
custodial documents.
The successors for the former personnel in the relevant roles listed in Appendix A
are already listed (or have been added above), where they exist, as explained in
more detail above.
Google’s Proposed Additional Custodians
With respect to Appendix B, as discussed in our May 26 letter, these custodians are
generally either likely to have documents that are largely duplicative of a proposed custodian,
have a role that is primarily non-substantive in nature with respect to digital advertising, or are
being proposed as custodians above.
Name
Rico Lane
Clay Hawkins
Matt Weinrich
Austin Dziengelewski
Glenna Wood
FAA
Air Force
Air Force
Army
Army
Army
Comments
Would not have unique documents that would
not also be in Dickey’s files. Between
Mr. Dickey’s and Ms. Hatch’s emails and the
Air Force central files, Mr. Lane appears in over
19,000 documents already proposed to be
searched.
Proposed to add.
Proposed to add.
Proposed to add.
She is in the business management directorate
for AEMO, which handles back office functions.
Financial/invoicing documents are being
collected separately and her central files are
included in the AEMO central files. Including
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Daniel Flynn
Army
LeeAnn Craig
Army
Tom Bazemore
Army
Dean Stewart-Curry
Navy
Cheryl Aimes-Tillman Navy
Adelina Lozzi
Kevin Clauson
Navy
Navy
Stacey Jordon
Census Bureau
James Cole
Laura Salerno
Census Bureau
CMS
Teams, which they use routinely. Reports to
Weinrich, who we have proposed to add.
Reports to Morris, would have many duplicative
documents, would also be reflected in central
communications.
Reports to Morris, would have many duplicative
documents, would also be reflected in central
communications.
Reported to Maj. Dziengelewski until he retired
last month, and regularly communicated with
Maj. Dziengelewski via email and Teams. As
such, Maj. Dziengelewski’s files, along with
AEMO central files, which will include
communications from Maj. Bazemore, should
provide significant files for Maj. Bazemore.
Has a largely administrative/financial role
without substantive involvement in advertising.
When there is a procurement work statement,
Dean and his team (including Cheryl AimesTillman) handle internal routing documents that
validate whether there is money to support the
request. Approves financial documents before
submission to the comptroller. Invoices and
supporting documents are being searched as
central files.
Role is related to billing and invoicing, and any
relevant documents related to that would be in
the central files already being searched. Any
correspondence with the contractor is not
substantive but is with their government
contracts director and finance team.
Proposed to add.
He is Adelina Lozzi’s supervisor’s supervisor, in
a government contracting role without
substantive involvement in advertising, has no
direct contact with the contractor, and supervises
many contracts that have nothing to do with
advertising. Any documents he might have
would be duplicative of Adelina Lozzi’s files.
Deputy to Kendall Johnson working on Order
15, routinely uses central files, and is unlikely to
have significant unique content in her custodial
files.
Proposed to add.
Reports up to Chris Koepke, supervises Barbara
Johanson, and uses central files, so her
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Seth Edlavitch
CMS
Natalie Barg
CMS
Antoinette Bramlett
CMS
Jessica Beauchemin
CMS
Maya Owens
CMS
Arlene Jimenez
CMS
Cameron Smith
CMS
Maria (Jimena) Abreu CMS
Amy Bedsaul
CMS
Shelly Ray
CMS
Elizabeth Nilsson
NHTSA
Kil-Jae Hong
NHTSA
Mike Joyce
NHTSA
documents are unlikely to contain unique
responsive content.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Does not have knowledge or information about a
campaign or contract underlying The United
States’ damages claims.
Does not have knowledge or information about a
campaign or contract underlying The United
States’ damages claims.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled
“Elizabeth Nilsson” containing thousands of
documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled “KilJae Hong” containing thousands of documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
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Lori Millen
NHTSA
Shalene Starr
USPS
Kim Workinger
USPS
Dr. Barbara Van
Dahlen
Veterans Affairs
Lyndon Johnson
Lauren Grover
Veterans Affairs
Veterans Affairs
Rhett Herrera
Veterans Affairs
Christina Graham
Veterans Affairs
Lindi Sylvester
Veterans Affairs
searched, and uses central files, which are being
searched, including a central folder labeled
“Mike Joyce” containing thousands of
documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled
“Lori.Millen” containing hundreds of
documents. Over 50,000 documents in Susan
McMeen’s email files were sent to or from Lori
Millen.
Reports up to Chris Karpenko and supervises
Michael Bottenberg, so her documents are
unlikely to contain unique responsive content.
Responsible for the USPS.com website. Her
knowledge of display advertising is with respect
to coordinating creative and brand continuity so
that it aligns with USPS.com.
Former employee. She was a co-program
manager with Juliana Hallows on the
PREVENTS contract/task order, who was
responsible for managing files related to the
PREVENTS program, and so Dr. Van Dahlen’s
documents are unlikely to provide enough
unique content to justify collection and review.
Proposed to add.
Does not have knowledge or information about a
campaign or contract underlying the United
States’ damages claims.
Contents of custodial files related to relevant
role are likely to be duplicative of Koby South’s
documents, as all contract task orders/campaigns
on which he worked were also managed by
Koby South, and both would be included on
almost all responsive communications (over
200,000 documents in Koby South’s email files
were sent to or from Rhett Herrera).
Was responsible for contract maintenance or
financial contract matters without substantive
involvement in digital advertising.
Was responsible for contract maintenance or
financial contract matters without substantive
involvement in digital advertising.
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Search Terms
As explained in our meet and confer on June 9, the United States agrees to run the
following revised Search String No. 19 on agreed upon custodial and central files:
(Adsmovil OR Cisneros OR Aptive OR Brunet OR Tombras OR CVP OR
“Customer Value Partners” OR Edelman OR Dentsu OR Elevation OR
HCN OR “Hispanic Communications” OR “Hispanic Comms” OR IPG
OR Interpublic OR Reingold OR JRR OR MiQ OR “Media iQ” OR
Omnicom OR GMMB OR “Fleishman Hilliard” OR FleishmanHilliard
OR Stratacomm OR AdCouncil OR “Advertising Council” OR “District
Communications” OR “District Comms” OR DCG OR Trilogy OR
DXTRA OR “IW Group” OR IWG OR McCann OR UMWW OR
Matterkind OR Cadreon OR Kinesso OR Mindshare OR OMD OR
Wavemaker OR DDB OR “GSD&M” OR GSDM OR Ketchum OR
“Porter Novelli” OR Novelli OR “VMLY&R” VMLYR OR WPP OR
“Young & Rubicam” OR “Y&R” OR “Weber Shandwick” OR (GSA w/schedule)) AND (digital or web* OR online OR internet) AND display
RFP With respect to RFP 12, which asks for documents sufficient to show certain data related
to advertising purchases, we have explained that the FAAs do not maintain data in structured
databases that can be pulled in the format the Google is requesting, and instead has such
information, if at all, in the form of documents provided over time by their ad agency
contractors. The exception to this is Army, which has contractual rights to data maintained on its
behalf by its ad agency contractor, DDB. With respect to your request that we direct the ad
agencies to produce such data to Google, as we explained in our email on June 2, 2023, there is a
contractual relationship between the FAAs and their advertising agencies whereby the
advertising agencies purchase digital advertising on behalf of each FAA. Outside of that
contractual relationship, the FAAs do not control the actions of the advertising agencies, which
are independent companies that the United States has also served with Rule 45 subpoenas. We
also confirmed that (1) we have not asked any ad agency used by an FAA not to produce
documents pursuant to Google’s subpoenas, and (2) if any specific ad agency states it cannot
comply with Google’s subpoena due confidentiality or other obligations owed to an FAA, we
would address the situation expeditiously upon learning of it.
Your request in your June 9 email that “the United States specify what contractual or
other prohibitions preclude the FAAs from directing their ad agencies to produce the responsive
data” appears to ask the same question, which merits the same answer. We have asked ad
agencies to produce data via Rule 45 subpoenas, and where we have a contractual right to
“direct” production of such data, we are seeking it via the government contracting process.
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***
Please contact me at (202) 476-0293 or katherine.clemons@usdoj.gov if you have any
questions regarding this letter.
Sincerely,
/s/ Katherine Clemons
Katherine Clemons
Trial Attorney
Antitrust Division
U.S. Department of Justice
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Liberty Square Building
450 5th Street, N.W.
CONFIDENTIAL
Martha L. Goodman
Paul, Weiss, Rifkind, Wharton & Garrison LLP
2001 K Street, NW
Washington, DC 20006
mgoodman@paulweiss.com
Re: United States, et al. v. Google LLC, No. 1:23-cv-00108-LMB-JFA
Dear Counsel:
I write in reply to your June 6, 2023 letter regarding the ongoing negotiations with
respect to the United States’ discovery responses related to FAAs, as well as your June 9, 2023
email memorializing our June 9, 2023 meet and confer.
As a preliminary matter, we write to address the comments in your June 6 letter
concerning the timing of the United States’ productions. As discussed during our June 9 meet
and confer, the United States is diligently working to process, review, and prepare documents for
production. In addition to the millions of investigatory file documents we produced in April,
which included over 67,000 pages from internal Antitrust Division files, we produced an initial
set of FAA documents on May 31. We anticipate being able to make substantial weekly
productions following that FAA production, including one last Friday and another today
containing collectively over 15,000 documents (140,000 pages) from Census and Air Force, and
an additional volume containing ~20,000 documents from USPS in the next few days. We note
that as of May 31, Google, despite having had the United States’ specific custodian and search
term proposals since early in the discovery period, had produced zero documents in response to
the United States’ document requests and had clawed back over a thousand documents produced
years earlier.
FAA Custodians
With respect to the summary laid out in your June 6 letter of the United States’ May 26
custodian proposal, we confirm that your understanding is correct with a few clarifications: we
intend to search custodial emails for the January 1, 2018-January 24, 2023 period, using search
terms in the United States’ May 13 letter (plus revised Search String No. 19, as set out below),
for the period(s) that the individual custodian was in a relevant role at the FAA. Where the
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custodian was not in a relevant role (i.e., one involving digital advertising, or contracting related
to digital advertising, for the FAA), we do not intend to search those files, if they exist.
Regarding your questions concerning non-email custodial files, we respond to each
below:
1. Will the United States agree to search chats, instant messages, or other
ephemeral communications of the Appendix A custodians using the United
States’ proposed May 13 search terms?
• As a preliminary note, we do not agree with Google’s characterization of
chats and instant messages as “ephemeral communications” in this question,
as an ephemeral communication is one that is set up to be or is by its nature
temporary and/or auto-deleting across all senders and recipients. It is also a
designation that is agnostic to the form of communication (e.g., Gmail
confidential mode emails qualify as ephemeral or quasi-ephemeral messaging
under Sedona Conference guidance, whereas messages sent via many
common instant messaging platforms do not, see The Sedona Conference,
Commentary on Ephemeral Messaging, 22 SEDONA CONF. J. 435, 449-52
(2021)).
• Following a reasonable inquiry, we are not aware of any of the individuals in
Appendix A to your June 6 letter (or the additional custodians proposed
below) having used ephemeral messaging systems for business purposes.
• The United States will search available sources containing chats, instant
messages, or other forms of communication for each agreed upon custodian
that the United States is aware, based on reasonable inquiry, are likely to
contain responsive non-duplicative documents or communications based on
the individual custodian’s usage of messaging applications for business
purposes, if any.
• We note that the United States already indicated in our prior letters that we
intended to search Microsoft Teams documents and chats where applicable,
e.g., as part of Army’s central and custodial files. We are conducting a
reasonably diligent inquiry with respect to the documents maintained by the
individual custodians listed in Appendix A and do not intent to exclude from
our search any sources likely to contain non-duplicative responsive
documents, including chats and instant messages. Until the search terms
have been applied and the document reviewed for all custodians, we do not
know which custodians or FAAs will have responsive chats or instant
messages, but if we have reason to believe a custodian engages in substantive
communications regarding advertising via chat or instant message, we are
collecting those materials that exist and will include them in our search. As
of now, we have not identified responsive chats or instant messages outside
of Army central and custodial files.
2. For the custodians in Appendix A, please confirm that each custodian was in a
role involving “primary responsibility for decision-making and analysis
regarding digital advertising strategy, liaising with contractors related to open
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web display advertising, and/or contracting for advertising services,” over the
2019-2023 period, as reflected in the United States’ Interrogatory 12 responses.
If any particular custodian was not in such role for the entirety of the 20192023 period, please confirm the dates of their employment in such role and
confirm that you will identify their predecessor or successor and conduct the
same search, collection, and review of predecessor or successor custodial
documents.
• For many of the custodians in Appendix A, we have already included
predecessors or successors where applicable. Michael Bottenberg, for
example, succeeded Brian Pasco in the role of Digital Marketing Specialist at
USPS, and neither was in a relevant role at USPS during the period that the
other held the position, but together they cover the entire damages period.
• Army:
• For Army, as previously noted, the legacy recruiting and marketing
organization that existed prior to August 2019 was dismantled and a
team of new personnel was assembled to form the current Army
Enterprise Marketing Organization (AEMO) with little carryover from
the previous organization.
• As part of this reorganization effort, Army created new roles that had
previously not existed, and there is very little institutional knowledge
remaining about the legacy organization. As such, there is no
custodian or set of custodians capable of covering the entire period
from January 2019 to January 2023.
• As previously discussed, however, AEMO personnel routinely use
shared workspaces and file storage to communicate and work, and the
United States will be searching those central files, which will also
include any documents transferred over from the legacy organization.
We continue to take the position that these central files will provide
more than enough of the types of documents and communications
Google is seeking.
• In the interest of reaching an agreement on custodians swiftly to allow
us to reallocate resources currently devoted to these negotiations to
meeting our discovery obligations in a timely manner, however, we
propose to add two custodians to our search of Army files if doing so,
along with the other compromises and agreements set forth in this
letter, will facilitate swift resolution of these negotiations. Specifically,
the United States will agree to search the custodial files of Col. Matt
Weinrich, AEMO Chief of Staff, and Maj. Austin Dziengelewski, Data
and Performance Branch Chief. As Chief of Staff, Col. Weinrich
coordinates the work of AEMO’s various units. Prior to his retirement
last month, Maj. Dziengelewski reported to John Horning, one of the
original two custodians. Those four custodians collectively will cover
the period from August 2019 through January 2023 with respect to
internal and external email communications on a broad range of
strategic and operational substantive advertising topics, which are
further covered by AEMO’s robust central files.
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•
•
Veterans Affairs:
• Veterans Affairs is a bit different from the other FAAs in that it does
not have a centralized communications or recruiting organization for
which a primary function is coordinating advertising strategy and
outreach efforts, advertising campaigns, and advertising contractor
relationships. Rather, Veterans Affairs campaigns and advertising
contracts are managed directly by the program managers for the
overarching programming initiatives to provide services to veterans,
which encompass far more than advertising and communications.
• As such, many of the listed individuals were only in a relevant role
with respect to advertising during the periods in which their programs
ramped up and executed an ad campaign and had an active contract
with an ad agency for the campaign. It is for this reason that while the
key custodians for other FAAs are communications and marketing
professionals, many of the custodians for Veterans Affairs are doctors
of medicine and public health. Their primary role is to run public
health initiatives to deliver services to veterans, and the advertising
campaigns underlying the United States’ damages claims for Veterans
Affairs are incidental to that broader role.
• For these reasons, it is not reasonable to search most of the Veterans
Affairs custodial files outside of the period in which they were acting
as program manager for an advertising campaign and/or contract task
order involving digital advertising, because doing so would be
searching their files during a time period in which their role was not
sufficiently related to the issues in this case. Nor is it reasonable to
identify predecessors or successors who served in those roles during
periods in which they were not responsible for any aspect of digital
advertising for Veterans Affairs. Therefore, the United States will
search these custodians’ files during the period in which they were in a
relevant role with respect to advertising, and will only search
predecessors’ and successors’ files to the extent that those processors
and/or successors were in a relevant role with respect to advertising.
• It is our understanding that the Veterans Affairs custodians listed
below, with two additional predecessors not previously listed in
Appendix A, cover the entire periods of contract task orders/campaigns
associated with the listed programs during the damages period, in
addition to the entire damages period with respect to the Director of
National Veteran Outreach Office role.
The period during which the proposed custodians, including eight individuals
from Appendix B that the United States is proposing to add as part of a final
compromise to address Google’s stated concerns, were in a relevant role at
the FAA is included in the table below.
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Name
Barry Dickey
FAA
Air Force
Roberta Hatch Air Force
Clay Hawkins
Air Force
Lennox Morris Army
John Horning
Army
Matt Weinrich Army
Title
Chief of Strategic
Marketing, Air Force
Recruiting Services
Contracting Officer, Air
Force Recruiting
Services
Deputy for Strategic
Marketing – Air Force
Reserve (former)
National Media Branch
Chief, Army
Enterprise Marketing
Office
Director of Strategy,
Innovation, and Data,
Army Enterprise
Marketing Office
Chief of Staff, AEMO
Austin
Army
Dziengelewski
Allen Owens Navy
Data and Performance
Branch Chief
Chief Marketing
Officer, Navy
Recruiting Command
Adelina Lozzi
Navy
Contract Specialist
Kendall
Johnson
Census
Bureau
Executive Director for
2020 Integrated
Communications
Campaign
Period in Relevant Role(s)
Pre-2019-Present
Dec. 2021-Present
(all predecessors during
damages period were in
ministerial role, all for only
6-12 months each)
2021-post-Jan. 2023
This was a new position, no
predecessor; successor started
after litigation commenced.
June 2021-Present
~May 2021-Present
Aug. 2019-Present
~Aug. 2019-May 2023
Pre-2019-Present
The person who was in his
current role until Feb 2021
has retired, but Owens has
been in a relevant role the
entire time performing the
same functions, and he is the
best source for documents,
as he was the Director of
Marketing Operations,
Deputy CMO, and then
CMO, and has substantively
performed a similar role
with respect to advertising
during the damages period.
Pre-2019-Present
Pre-2019-present
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Contract Officers’
Representative for
Order 8 (national
recruiting)
Director of the Strategic
Christopher
CMS
Marketing Group,
Koepke
Office of
Communications
Barbara
CMS
Division Director,
Johanson
Division of Campaign
Management, Strategic
Marketing Group, Office
of Communications
Susan McMeen NHTSA
Director, Office of
Communications and
Consumer Information
Associate Administrator,
Julie Vallese
NHTSA
Communications and
Consumer Information
Susan
NHTSA
Associate Administrator,
Gorcowski
Communications and
Consumer Information
(former)
USPS
Executive Director,
Chris
Brand Marketing
Karpenko
Michael
USPS
Digital Marketing
Bottenberg
Specialist
Brian Pasco
USPS
Senior Media/Digital
Marketing Specialist and
Contracting Officer’s
Representative (former)
Michael A.
Veterans Director of National
Veteran Outreach Office,
Taylor
Affairs
OPIA; and
James Cole
Census
Bureau
Pre-2019-present
(campaign/contract task
order ended in late 2021)
Pre-2019-present
Jan. 2019-May 2019 (acting);
May 2020-present
Pre-2019-present
May 2020-present
Pre-2019-May 2020 (retired)
(emails have been preserved)
Pre-2019-present
2021-present
Pre-2019-2022 (succeeded by
Michael Bottenberg)
Jan. 2022-Present
Has access to a shared file
with important documents
with respect to advertising
Program Manager for
oversight used/accessed by
ChooseVA Outreach and his predecessor in the
Strategic Communication National Veteran Outreach
Contract/Task Order (Feb. Office, Joseph Curtin.
2020 – Feb. 2024)
Mr. Taylor’s previous role
was the Director of VA
Homeless Veterans Outreach
& Strategic Communications.
He was not involved in digital
advertising between 2019 and
January 2022.
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Joseph Curtin
Lyndon
Johnson
Koby South
Veterans Director of National
Veteran Outreach Office,
Affairs
OPIA (former)
Veterans Program Manager
Affairs
(former) for ChooseVA
Outreach and Strategic
Communication
Contract/Task Order (Feb.
2020 – Feb. 2024)
Pre-2019-Dec. 2021 (retired)
(emails were preserved)
Veterans
Affairs
Pre-2019-present
Aimee Johnson Veterans
(former
Affairs
employee)
Juliana
Hallows
Veterans
Affairs
Dr. Susan
Strickland
Veterans
Affairs
James David
Leamon
(former
employee)
Veterans
Affairs
Program Manager for
VHA General Mental
Health and Suicide
Prevention Awareness
and Education Outreach
Support Services
Contract/Task Order
(Sept. 2017 – Mar.
2023)
Program Manager for
Office of Mental Health
and Suicide Prevention
Corporate
Communications
Contract/Task Order
(Oct. 2019 - end of
conractOct. 2020)
Program Manager for
Office of Mental Health
and Suicide Prevention
Corporate
Communications
Contract/Task Order
(Sept. 2018 – Sept. 2019)
Program Manager for
PREVENTS
Contract/Task Order
(Sept. 2019 – Nov. 2021)
Program Manager for
“Keep it Secure”
Contract/Task Order
(June 2022 – June 2023)
Program Manager for
“Keep it Secure”
Contract/Task Order
(Dec. 2021 – Apr. 2022)
Feb. 2020 (start of contract)Dec. 2021 (succeeded by
Michael Taylor)
Sept. 2018 (start of contract)Sept. 2019 (end of contract)
Sept. 2019 (start of contract)Nov. 2021 (end of contract)
June 2022 (start of contract)present
Dec. 2021 (start of contract)April 2022 (end of contract)
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Dr. Todd
Burnett
Veterans
Affairs
Dr. Eric
Shuping
Veterans
Affairs
Darren
Sherrard
Veterans
Affairs
Program Manager for
Suicide Prevention
Communications Support
Contract/Task Order (Oct.
2022 – June 2023)
Program Manager for
Airborne Hazards and
Open Burn Pit Registry
Contract/Task Order
(Sept. 2019 – Mar. 2021)
Program Manager for
VHA Recruitment
Marketing & Advertising
Campaign
Oct. 2022-present
Sept. 2019 (start of contract)Mar. 2021 (end of contract)
Pre-2019-present
3. For former-employee custodians listed in Appendix A, please confirm the end
dates of their employment and confirm that you will identify their successor
and conduct the same search, collection, and review of their successor
custodial documents.
The successors for the former personnel in the relevant roles listed in Appendix A
are already listed (or have been added above), where they exist, as explained in
more detail above.
Google’s Proposed Additional Custodians
With respect to Appendix B, as discussed in our May 26 letter, these custodians are
generally either likely to have documents that are largely duplicative of a proposed custodian,
have a role that is primarily non-substantive in nature with respect to digital advertising, or are
being proposed as custodians above.
Name
Rico Lane
Clay Hawkins
Matt Weinrich
Austin Dziengelewski
Glenna Wood
FAA
Air Force
Air Force
Army
Army
Army
Comments
Would not have unique documents that would
not also be in Dickey’s files. Between
Mr. Dickey’s and Ms. Hatch’s emails and the
Air Force central files, Mr. Lane appears in over
19,000 documents already proposed to be
searched.
Proposed to add.
Proposed to add.
Proposed to add.
She is in the business management directorate
for AEMO, which handles back office functions.
Financial/invoicing documents are being
collected separately and her central files are
included in the AEMO central files. Including
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Daniel Flynn
Army
LeeAnn Craig
Army
Tom Bazemore
Army
Dean Stewart-Curry
Navy
Cheryl Aimes-Tillman Navy
Adelina Lozzi
Kevin Clauson
Navy
Navy
Stacey Jordon
Census Bureau
James Cole
Laura Salerno
Census Bureau
CMS
Teams, which they use routinely. Reports to
Weinrich, who we have proposed to add.
Reports to Morris, would have many duplicative
documents, would also be reflected in central
communications.
Reports to Morris, would have many duplicative
documents, would also be reflected in central
communications.
Reported to Maj. Dziengelewski until he retired
last month, and regularly communicated with
Maj. Dziengelewski via email and Teams. As
such, Maj. Dziengelewski’s files, along with
AEMO central files, which will include
communications from Maj. Bazemore, should
provide significant files for Maj. Bazemore.
Has a largely administrative/financial role
without substantive involvement in advertising.
When there is a procurement work statement,
Dean and his team (including Cheryl AimesTillman) handle internal routing documents that
validate whether there is money to support the
request. Approves financial documents before
submission to the comptroller. Invoices and
supporting documents are being searched as
central files.
Role is related to billing and invoicing, and any
relevant documents related to that would be in
the central files already being searched. Any
correspondence with the contractor is not
substantive but is with their government
contracts director and finance team.
Proposed to add.
He is Adelina Lozzi’s supervisor’s supervisor, in
a government contracting role without
substantive involvement in advertising, has no
direct contact with the contractor, and supervises
many contracts that have nothing to do with
advertising. Any documents he might have
would be duplicative of Adelina Lozzi’s files.
Deputy to Kendall Johnson working on Order
15, routinely uses central files, and is unlikely to
have significant unique content in her custodial
files.
Proposed to add.
Reports up to Chris Koepke, supervises Barbara
Johanson, and uses central files, so her
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Seth Edlavitch
CMS
Natalie Barg
CMS
Antoinette Bramlett
CMS
Jessica Beauchemin
CMS
Maya Owens
CMS
Arlene Jimenez
CMS
Cameron Smith
CMS
Maria (Jimena) Abreu CMS
Amy Bedsaul
CMS
Shelly Ray
CMS
Elizabeth Nilsson
NHTSA
Kil-Jae Hong
NHTSA
Mike Joyce
NHTSA
documents are unlikely to contain unique
responsive content.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Reports up to Barbara Johanson, whose custodial
files are being searched, and routinely uses
central files, which are being searched.
Does not have knowledge or information about a
campaign or contract underlying The United
States’ damages claims.
Does not have knowledge or information about a
campaign or contract underlying The United
States’ damages claims.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled
“Elizabeth Nilsson” containing thousands of
documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled “KilJae Hong” containing thousands of documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
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Lori Millen
NHTSA
Shalene Starr
USPS
Kim Workinger
USPS
Dr. Barbara Van
Dahlen
Veterans Affairs
Lyndon Johnson
Lauren Grover
Veterans Affairs
Veterans Affairs
Rhett Herrera
Veterans Affairs
Christina Graham
Veterans Affairs
Lindi Sylvester
Veterans Affairs
searched, and uses central files, which are being
searched, including a central folder labeled
“Mike Joyce” containing thousands of
documents.
Reports up to and regularly communicates with
Susan McMeen, whose custodial files are being
searched, and uses central files, which are being
searched, including a central folder labeled
“Lori.Millen” containing hundreds of
documents. Over 50,000 documents in Susan
McMeen’s email files were sent to or from Lori
Millen.
Reports up to Chris Karpenko and supervises
Michael Bottenberg, so her documents are
unlikely to contain unique responsive content.
Responsible for the USPS.com website. Her
knowledge of display advertising is with respect
to coordinating creative and brand continuity so
that it aligns with USPS.com.
Former employee. She was a co-program
manager with Juliana Hallows on the
PREVENTS contract/task order, who was
responsible for managing files related to the
PREVENTS program, and so Dr. Van Dahlen’s
documents are unlikely to provide enough
unique content to justify collection and review.
Proposed to add.
Does not have knowledge or information about a
campaign or contract underlying the United
States’ damages claims.
Contents of custodial files related to relevant
role are likely to be duplicative of Koby South’s
documents, as all contract task orders/campaigns
on which he worked were also managed by
Koby South, and both would be included on
almost all responsive communications (over
200,000 documents in Koby South’s email files
were sent to or from Rhett Herrera).
Was responsible for contract maintenance or
financial contract matters without substantive
involvement in digital advertising.
Was responsible for contract maintenance or
financial contract matters without substantive
involvement in digital advertising.
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Search Terms
As explained in our meet and confer on June 9, the United States agrees to run the
following revised Search String No. 19 on agreed upon custodial and central files:
(Adsmovil OR Cisneros OR Aptive OR Brunet OR Tombras OR CVP OR
“Customer Value Partners” OR Edelman OR Dentsu OR Elevation OR
HCN OR “Hispanic Communications” OR “Hispanic Comms” OR IPG
OR Interpublic OR Reingold OR JRR OR MiQ OR “Media iQ” OR
Omnicom OR GMMB OR “Fleishman Hilliard” OR FleishmanHilliard
OR Stratacomm OR AdCouncil OR “Advertising Council” OR “District
Communications” OR “District Comms” OR DCG OR Trilogy OR
DXTRA OR “IW Group” OR IWG OR McCann OR UMWW OR
Matterkind OR Cadreon OR Kinesso OR Mindshare OR OMD OR
Wavemaker OR DDB OR “GSD&M” OR GSDM OR Ketchum OR
“Porter Novelli” OR Novelli OR “VMLY&R” VMLYR OR WPP OR
“Young & Rubicam” OR “Y&R” OR “Weber Shandwick” OR (GSA w/3
schedule)) AND (digital or web* OR online OR internet) AND display
RFP 12
With respect to RFP 12, which asks for documents sufficient to show certain data related
to advertising purchases, we have explained that the FAAs do not maintain data in structured
databases that can be pulled in the format the Google is requesting, and instead has such
information, if at all, in the form of documents provided over time by their ad agency
contractors. The exception to this is Army, which has contractual rights to data maintained on its
behalf by its ad agency contractor, DDB. With respect to your request that we direct the ad
agencies to produce such data to Google, as we explained in our email on June 2, 2023, there is a
contractual relationship between the FAAs and their advertising agencies whereby the
advertising agencies purchase digital advertising on behalf of each FAA. Outside of that
contractual relationship, the FAAs do not control the actions of the advertising agencies, which
are independent companies that the United States has also served with Rule 45 subpoenas. We
also confirmed that (1) we have not asked any ad agency used by an FAA not to produce
documents pursuant to Google’s subpoenas, and (2) if any specific ad agency states it cannot
comply with Google’s subpoena due confidentiality or other obligations owed to an FAA, we
would address the situation expeditiously upon learning of it.
Your request in your June 9 email that “the United States specify what contractual or
other prohibitions preclude the FAAs from directing their ad agencies to produce the responsive
data” appears to ask the same question, which merits the same answer. We have asked ad
agencies to produce data via Rule 45 subpoenas, and where we have a contractual right to
“direct” production of such data, we are seeking it via the government contracting process.
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***
Please contact me at (202) 476-0293 or katherine.clemons@usdoj.gov if you have any
questions regarding this letter.
Sincerely,
/s/ Katherine Clemons
Katherine Clemons
Trial Attorney
Antitrust Division
U.S. Department of Justice
FILED PURSUANT TO COURT ORDER DOC. 354
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