Page 1 PageID#
EXHIBIT FILED UNDER SEAL
FILED PURSUANT TO COURT ORDER DOC. 354Page 2 PageID#
MARTHA L. GOODMAN
TELEPHONE
FACSIMILE
(202) 223-(202) 330-
E-MAIL: mgoodman@paulweiss.com
July 31,
By Email
Michael Wolin
Trial Attorney
Antitrust Division
U.S. Department of Justice
450 Fifth Street, NW, Suite Washington, D.C. Michael.Wolin@usdoj.gov
Re:
United States et al. v. Google LLC, No. 1:23-cv-108-LMB-JFA (E.D. Va.)
Dear Michael:
Thank you for speaking with us on Wednesday, July 26, 2023 regarding ATR’s
June 26, 2023 privilege log. We write to memorialize our conversation, and make
specific requests of ATR regarding their improper assertions of privilege.
On our call, we discussed ATR’s assertions of the attorney-client privilege over
communications between members of the DOJ Antitrust Division (“ATR”) and
employees of four federal agencies: the General Services Administration (“GSA”), the
U.S. Office of Personnel Management (“OPM”), the Office of Management and Budget
(“OMB”), and United States Postal Service Office of the Inspector General (“USPSOIG”).
We asked you to provide the basis for ATR’s claim of attorney-client privilege
over communications with these non-FAA agencies, to which you replied that ATR’s
FILED PURSUANT TO COURT ORDER DOC. 354Page 3 PageID#
Michael Wolin
client “is the United States.” When I asked if everyone in the United States government
is ATR’s client, you replied, “I think it includes large portions of the executive branch
and we are entitled to have confidential communications with them to provide legal
advice.” We asked that you articulate the basis, including any factual information and
legal authority you are relying on, for your position that ATR had an attorney-client
relationship with these non-FAA agencies at the time the communications occurred
between the specific non-FAA employee involved in each record on ATR’s log.
Although we did not discuss it on the call, ATR’s communications with employees at the
Office of Justice Programs (“OJP”) reflected on the log are also covered by Google’s
requests in this regard.
We also discussed ATR’s privilege log descriptions, which fail to support a claim
of attorney-client privilege. And while it was not the focus of Wednesday’s call, these
generic descriptions also fail to support work product and deliberative process privilege
claims. Each of ATR’s descriptions is one of two boilerplate formulations set forth
below, depending on whether ATR is the recipient or sender of the email:
● Non-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.”
● ATR Sender: “Confidential communication to counsel for United States providing
information requested for the purpose of 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 and 2 of the Sherman Act and Section 4A of the Clayton Act.”
These descriptions do not establish that the sender sought ATR’s legal advice, or
that ATR was providing legal advice to the non-ATR agencies, or that the non-ATR
agencies sought to become clients of ATR. What they show is that ATR was gathering
facts from a third party that just so happened to be another federal agency, presumably as
part of its ongoing investigation; no privilege attaches to such communications. This is
also self-evident by the subject lines of the emails, such as “inquiry from Department of
Justice, Antitrust Division” or “request for information from DOJ Antitrust.”
FILED PURSUANT TO COURT ORDER DOC. 354Page 4 PageID#
Michael Wolin
Unsolicited outreach from an ATR lawyer to an employee at another federal
agency does not establish an attorney-client relationship between ATR and the other
federal agency; nor does it indicate that ATR provided any legal advice based upon
confidential client communications. Likewise, responses by individual employees to
unprompted ATR contact do not, on their own, show that the agency provided
confidential information for the purpose of obtaining legal advice. This applies equally
to both the FAAs on whose behalf the United States is seeking damages, as well as the
non-FAA agencies (including OJP) on ATR’s log.
Documents produced by the FAAs to date also demonstrate that ATR has
improperly asserted privilege. See, for example, the following documents: USPS-ADS0000139901; CMS-ADS-00002500903; USPS-ADS-0000139659.
These documents also show that ATR’s assertions of attorney-work product
protection and the deliberative process privilege are unsubstantiated. The documents
make clear, for instance, that the information requests are substantially similar to
information requests ATR made of third parties and which ATR is obligated to produce
as part of its investigative file. Additionally, per the documents, ATR simply requested
factual information and did not engage in any deliberation or otherwise render legal
advice or an opinion in any of the communications on ATR’s log.
Cases establishing that ATR’s attorney-client, work-product, and deliberativeprocess privilege assertions are improper include: United States v. Booz Allen Hamilton
Inc., 2022 WL 3921019 (D. Md. Aug. 31, 2022); Stonehill v. U.S. Dep’t of Just. Tax Div.,
2022 WL 407145 (D.D.C. Feb. 10, 2022); Cause of Action Inst. v. U.S. Dep’t of Just.,
330 F. Supp. 3d 336 (D.D.C. 2018); Jones v. Murphy, 256 F.R.D. 510 (D. Md. 2008);
and United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603 (D.D.C. 1979). These cases
show exploring facts with employees of agencies are not protected by the privileges ATR
asserts. We also point you to the Antitrust Division Manual, 5th ed., at VII-44 in
particular (deliberative process privilege “does not apply to essentially factual
information unless such information is so intertwined with the analysis or so clearly
reflects the internal deliberative process employed by the Division as to make segregation
of factual portions impossible”; attorney-client privilege “seldom arises with regard to
Division documents” and only “may apply in certain circumstances to communications”
with other government agencies).
Accordingly, Google makes the following asks of ATR, to all be completed by
August 4, 2023:
First, we request that ATR produce without redaction all documents on its June
26, 2023 log.
Second, we request that ATR provide a list of custodians at ATR whose files were
searched for purposes of responding to Google’s RFP 5. We note that only 6 ATR
employees are reflected on the June 26, 2023 log. But there are 15 ATR attorneys listed
FILED PURSUANT TO COURT ORDER DOC. 35Page 5 PageID#
Michael Wolin
on the United States’ January 24, 2023 complaint. And there are 13 ATR attorneys who
have entered appearances in this case. Have these attorneys’ files been searched for
communications responsive to Google’s RFP 5 as well as for documents that should
comprise ATR’s investigatory file? Please provide us with a list of all ATR employees
whose files were searched for documents responsive to Google’s RFP 5 and for
collection and production of the investigatory file.
Third, we request that ATR prepare a privilege log for documents over which
ATR is asserting a privilege pursuant to V.8.b and V.8.e of the ESI Order (Dkt. 142).
While these provisions exempt logging of “Documents or communications sent solely
between counsel for the United States (or persons employed by the United States
Department of Justice)” and “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,” we have serious concerns, including
based upon the emails FAAs have produced, that ATR is wrongly asserting a blanket
privilege over its pre-complaint communications with lawyers throughout the entirety of
the United States government and before any lawyer-client relationship was established.
We are also concerned that ATR is using the ESI order—negotiated and entered months
before DOJ produced a single document—to conceal the fact of ATR’s improper
privilege assertions from Google. In this regard, we remind you of your arguments to the
Court in March that the FAAs were not jointly investigating or prosecuting this case. See
Dkt. 92.
If ATR refuses to comply with these requests, we ask for a response by August 4,
2023 articulating, with factual and legal support, when the attorney-client relationship
between ATR and each agency reflected on the log was established, as well as further
supporting factually and legally your claims of attorney-client, work-product and
deliberative-process protections.
As ATR well knows, these privileges are to be construed narrowly because they
impede the search for truth. ATR also knows it is improper to create the appearance of
privilege by, among other things, routing communications through attorneys, or including
attorneys without a request for or provision of legal advice. And ATR knows that it bears
the burden of establishing its claims of privilege. Its failure to do so is impeding
Google’s right to discover relevant information.
Google reserves all rights.
Sincerely,
/s/ Martha L. Goodman
Martha L. Goodman
FILED PURSUANT TO COURT ORDER DOC. 354
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EXHIBIT 5
FILED UNDER SEAL
FILED PURSUANT TO COURT ORDER DOC. 354
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Case 1:23-cv-00108-LMB-JFA Document 357-4 Filed 08/30/23 Page 2 of 5 PageID# 5324
MARTHA L. GOODMAN
TELEPHONE
FACSIMILE
(202) 223-7341
(202) 330-5921
E-MAIL: mgoodman@paulweiss.com
July 31, 2023
By Email
Michael Wolin
Trial Attorney
Antitrust Division
U.S. Department of Justice
450 Fifth Street, NW, Suite 800
Washington, D.C. 20530
Michael.Wolin@usdoj.gov
Re:
United States et al. v. Google LLC, No. 1:23-cv-108-LMB-JFA (E.D. Va.)
Dear Michael:
Thank you for speaking with us on Wednesday, July 26, 2023 regarding ATR’s
June 26, 2023 privilege log. We write to memorialize our conversation, and make
specific requests of ATR regarding their improper assertions of privilege.
On our call, we discussed ATR’s assertions of the attorney-client privilege over
communications between members of the DOJ Antitrust Division (“ATR”) and
employees of four federal agencies: the General Services Administration (“GSA”), the
U.S. Office of Personnel Management (“OPM”), the Office of Management and Budget
(“OMB”), and United States Postal Service Office of the Inspector General (“USPSOIG”).
We asked you to provide the basis for ATR’s claim of attorney-client privilege
over communications with these non-FAA agencies, to which you replied that ATR’s
FILED PURSUANT TO COURT ORDER DOC. 354
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Case 1:23-cv-00108-LMB-JFA Document 357-4 Filed 08/30/23 Page 3 of 5 PageID# 5325
Michael Wolin
2
client “is the United States.” When I asked if everyone in the United States government
is ATR’s client, you replied, “I think it includes large portions of the executive branch
and we are entitled to have confidential communications with them to provide legal
advice.” We asked that you articulate the basis, including any factual information and
legal authority you are relying on, for your position that ATR had an attorney-client
relationship with these non-FAA agencies at the time the communications occurred
between the specific non-FAA employee involved in each record on ATR’s log.
Although we did not discuss it on the call, ATR’s communications with employees at the
Office of Justice Programs (“OJP”) reflected on the log are also covered by Google’s
requests in this regard.
We also discussed ATR’s privilege log descriptions, which fail to support a claim
of attorney-client privilege. And while it was not the focus of Wednesday’s call, these
generic descriptions also fail to support work product and deliberative process privilege
claims. Each of ATR’s descriptions is one of two boilerplate formulations set forth
below, depending on whether ATR is the recipient or sender of the email:
● Non-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.”
● ATR Sender: “Confidential communication to counsel for United States providing
information requested for the purpose of 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.”
These descriptions do not establish that the sender sought ATR’s legal advice, or
that ATR was providing legal advice to the non-ATR agencies, or that the non-ATR
agencies sought to become clients of ATR. What they show is that ATR was gathering
facts from a third party that just so happened to be another federal agency, presumably as
part of its ongoing investigation; no privilege attaches to such communications. This is
also self-evident by the subject lines of the emails, such as “inquiry from Department of
Justice, Antitrust Division” or “request for information from DOJ Antitrust.”
FILED PURSUANT TO COURT ORDER DOC. 354
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 357-4 Filed 08/30/23 Page 4 of 5 PageID# 5326
Michael Wolin
3
Unsolicited outreach from an ATR lawyer to an employee at another federal
agency does not establish an attorney-client relationship between ATR and the other
federal agency; nor does it indicate that ATR provided any legal advice based upon
confidential client communications. Likewise, responses by individual employees to
unprompted ATR contact do not, on their own, show that the agency provided
confidential information for the purpose of obtaining legal advice. This applies equally
to both the FAAs on whose behalf the United States is seeking damages, as well as the
non-FAA agencies (including OJP) on ATR’s log.
Documents produced by the FAAs to date also demonstrate that ATR has
improperly asserted privilege. See, for example, the following documents: USPS-ADS0000139901; CMS-ADS-00002500903; USPS-ADS-0000139659.
These documents also show that ATR’s assertions of attorney-work product
protection and the deliberative process privilege are unsubstantiated. The documents
make clear, for instance, that the information requests are substantially similar to
information requests ATR made of third parties and which ATR is obligated to produce
as part of its investigative file. Additionally, per the documents, ATR simply requested
factual information and did not engage in any deliberation or otherwise render legal
advice or an opinion in any of the communications on ATR’s log.
Cases establishing that ATR’s attorney-client, work-product, and deliberativeprocess privilege assertions are improper include: United States v. Booz Allen Hamilton
Inc., 2022 WL 3921019 (D. Md. Aug. 31, 2022); Stonehill v. U.S. Dep’t of Just. Tax Div.,
2022 WL 407145 (D.D.C. Feb. 10, 2022); Cause of Action Inst. v. U.S. Dep’t of Just.,
330 F. Supp. 3d 336 (D.D.C. 2018); Jones v. Murphy, 256 F.R.D. 510 (D. Md. 2008);
and United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603 (D.D.C. 1979). These cases
show exploring facts with employees of agencies are not protected by the privileges ATR
asserts. We also point you to the Antitrust Division Manual, 5th ed., at VII-44 in
particular (deliberative process privilege “does not apply to essentially factual
information unless such information is so intertwined with the analysis or so clearly
reflects the internal deliberative process employed by the Division as to make segregation
of factual portions impossible”; attorney-client privilege “seldom arises with regard to
Division documents” and only “may apply in certain circumstances to communications”
with other government agencies).
Accordingly, Google makes the following asks of ATR, to all be completed by
August 4, 2023:
First, we request that ATR produce without redaction all documents on its June
26, 2023 log.
Second, we request that ATR provide a list of custodians at ATR whose files were
searched for purposes of responding to Google’s RFP 5. We note that only 6 ATR
employees are reflected on the June 26, 2023 log. But there are 15 ATR attorneys listed
FILED PURSUANT TO COURT ORDER DOC. 354
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Case 1:23-cv-00108-LMB-JFA Document 357-4 Filed 08/30/23 Page 5 of 5 PageID# 5327
Michael Wolin
4
on the United States’ January 24, 2023 complaint. And there are 13 ATR attorneys who
have entered appearances in this case. Have these attorneys’ files been searched for
communications responsive to Google’s RFP 5 as well as for documents that should
comprise ATR’s investigatory file? Please provide us with a list of all ATR employees
whose files were searched for documents responsive to Google’s RFP 5 and for
collection and production of the investigatory file.
Third, we request that ATR prepare a privilege log for documents over which
ATR is asserting a privilege pursuant to V.8.b and V.8.e of the ESI Order (Dkt. 142).
While these provisions exempt logging of “Documents or communications sent solely
between counsel for the United States (or persons employed by the United States
Department of Justice)” and “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,” we have serious concerns, including
based upon the emails FAAs have produced, that ATR is wrongly asserting a blanket
privilege over its pre-complaint communications with lawyers throughout the entirety of
the United States government and before any lawyer-client relationship was established.
We are also concerned that ATR is using the ESI order—negotiated and entered months
before DOJ produced a single document—to conceal the fact of ATR’s improper
privilege assertions from Google. In this regard, we remind you of your arguments to the
Court in March that the FAAs were not jointly investigating or prosecuting this case. See
Dkt. 92.
If ATR refuses to comply with these requests, we ask for a response by August 4,
2023 articulating, with factual and legal support, when the attorney-client relationship
between ATR and each agency reflected on the log was established, as well as further
supporting factually and legally your claims of attorney-client, work-product and
deliberative-process protections.
As ATR well knows, these privileges are to be construed narrowly because they
impede the search for truth. ATR also knows it is improper to create the appearance of
privilege by, among other things, routing communications through attorneys, or including
attorneys without a request for or provision of legal advice. And ATR knows that it bears
the burden of establishing its claims of privilege. Its failure to do so is impeding
Google’s right to discover relevant information.
Google reserves all rights.
Sincerely,
/s/ Martha L. Goodman
Martha L. Goodman
FILED PURSUANT TO COURT ORDER DOC. 354
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