United States et al v. Google LLC Document 357: Notice, Attachment 5

Virginia Eastern District Court
Case No. 1:23-cv-00108-LMB-JFA
Filed August 30, 2023

NOTICE by Google LLC re [354] Order on Motion to Seal,, NOTICE OF FILING UNREDACTED AND UNSEALED DOCUMENTS (Attachments: # (1) Supplement UNREDACTED Brief, # (2) Exhibit 2 UNSEALED, # (3) Exhibit 3 UNSEALED, # (4) Exhibit 5 UNSEALED, # (5) Exhibit 14 UNSEALED, # (6) Exhibit 15 UNSEALED)(Reilly, Craig)

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Page 1 PageID#
EXHIBIT FILED UNDER SEAL
FILED PURSUANT TO COURT ORDER DOC. 354
Page 2 PageID# HIGHLY CONFIDENTIAL
Page
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
_____________________
UNITED STATES,
)1:23-cv-00108-LMB-JFA
et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
GOOGLE LLC,
)
)
Defendants.
)
_____________________)
VIDEOTAPED DEPOSITION OF
KENDALL OLIPHANT
August 9, 9:32 a.m.
Reported by: Bonnie L. Russo
Job No. Veritext Legal Solutions
800-567-
FILED PURSUANT TO COURT ORDER DOC.
973-410-4098
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Page
Paul, Weiss, Rifkind, Wharton & Garrison, LLP 2001 K Street, N.W.
Washington, D.C.
Pursuant to Notice, when were present on behalf of the respective parties:
Videotaped Deposition of Kendall Oliphant
held at:
APPEARANCES (CONTINUED):
Also Present:
Glen Fortner, Videographer
Michael A. Cannon, Chief Counsel for Economic
Affairs, United States Department of Commerce
Also Present Via Remotely:
Julia Wood, DOJ
Jeannie S. Rhea, Paul, Weiss, Rifkind, Wharton
& Garrison, LLP
Page
Page
APPEARANCES:

On behalf of the Plaintiffs:

EXAMINATION OF KENDALL OLIPHANT

BY MS. GOODMAN

RACHEL ZWOLINSKI, ESQUIRE

VICTOR LIU, ESQUIRE

ALVIN CHU, ESQUIRE

UNITED STATES DEPARTMENT OF JUSTICE

1331 Pennsylvania Avenue, N.W.

Washington, D.C.
rachel.zwolinski@usdoj.gov

On behalf of the Defendant:

MARTHA L. GOODMAN, ESQUIRE

ANNELISE CORRIVEAU, ESQUIRE

PAUL, WEISS, RIFKIND, WHARTON &

PAGE

EXHIBITS

INDEX

Exhibit 13 E-Mail Chain dated 1-17-
CENSUS-ADS-0000244816-
Exhibit 14 Integrated Communications

Contract

Version
10-5-
GARRISON, LLP

CENSUS-ADS-0000387420-
2001 K Street, N.W.

Washington, D.C.

mgoodman@paulweiss.com

Attachment

acorriveau@paulweiss.com

CENSUS-ADS-0000248031-


Exhibit 15 E-Mail dated 9-14-
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EXHIBITS (CONTINUED):
Exhibit 16 E-Mail Chain dated 6-9-Attachment
CENSUS-ADS-0000168193-Exhibit 17 Order 15 - Media Strategy
2020 Census Integrated
Communications Contract
11-5-CENSUS-ADS-0000709936-Exhibit 18 2020 Census
Integrated Communications
Campaign Update
Congressional Staff Briefing
5-1-CENSUS-ADS-0000094975-
EXHIBITS (CONTINUED):
Exhibit 19 Campaign Optimization
Daily Report
4-3-Day 23 of Self-Response
CENSUS-ADS-0000709885-Exhibit 20 2020 Census Integrated
Communications Plan
Final Report
5-27-
Exhibit 21 Award/ Contract
8-24-CENSUS-ADS-0000273284-Exhibit 22 2020 Census Integrated
Communications Contract
Acquisition Plan
Master Contract YA1323-16-CQ-CENSUS-ADS-0000724090-
Exhibit 24 Department of Commerce
U.S. Census Bureau
Determination and Findings
CENSUS-ADS-0000243622-
Exhibit 25 E-Mail Chain dated 3-3-CENSUS-ADS-0000204155-Exhibit 26 E-Mail Chain dated 7-7-CENSUS-ADS-0000709244-Exhibit 27 E-Mail Chain dated 9-2-Attachment
CENSUS-ADS-0000710075-
Page
Page
EXHIBITS (CONTINUED):
Exhibit 23 Order 15: Media Buying
Process for Census PMO
CENSUS-ADS-0000696413-
EXHIBITS (CONTINUED):
Exhibit 28 Order 15: 2020 Census
Paid Media Campaign Final
Buy List
10-30-CENSUS-ADS-0000080950-Exhibit 29 United States Census 2020 Census Evaluation Report
CENSUS-ADS-0000074490-Exhibit 30 2020 Census Program Internal Memorandum Series:
2023i.01.20c
1-6-CENSUS-ADS-0000074369-Exhibit 31 E-Mail Chain dated 12-7-22 CENSUS-ADS-0000245053-Exhibit 32 Order for Supplies or
Services
CENSUS-ADS-0000075450-(Exhibits bound separately.)
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about agreeing to the terms of service for
Google ads?
A. Yes.
Q. Okay. Mr. Benson -- well, first of
all, Mr. Benson, he is at Reingold. What is
Reingold?
A. Reingold is a small business that
was a subcontractor on the integrated
communications contract, specifically focused
on the purchase of digital advertising.
Q. And when you say "they are a
subcontractor," who are they a subcontractor
of?
A. The prime contractor of record was
VMLY&R.
Q. So is it accurate to say there was
no contract directly between the census bureau
and Reingold?
MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: Yes, that is correct.
BY MS. GOODMAN:

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Q. Mr. Ryan -- Mr. Benson of Reingold
writes back: "Kendall, please see attached
media authorization form example per our
conversation just now."
Do you recall a conversation with
Mr. Benson with respect to this request to him?
A. Yes.
Q. And what did you and Mr. Benson
discuss?
A. Exactly the media authorization
form.
Q. And -- and so what -- well, what did
Mr. Benson say in response to your questions?
A. He said that every media
authorization form had that -- that disclaimer
in there -- or I'm not sure if it is called a
disclaimer but had that note in there
authorizing the particular agency to purchase
advertising.
As a subcontractor to VMLY&R, they
had the authority to purchase advertising on
behalf of the census bureau.
Q. Okay. And does anything in the
media authorization form that is attached to
that e-mail say anything about Google?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Media authorization
forms only provide an authorization to expend
money in a specific media category, not to a
specific vendor.
BY MS. GOODMAN:
Q. And so is it accurate that this
media authorization form does not say anything
about Google?
A. Correct.
Q. And is it accurate that this media
authorization form does not say anything about
what vendor to use for the purchase of, in this
instance, digital display, programmatic,
digital paid social, and digital add-opts, ad
serving?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: That is correct.
BY MS. GOODMAN:

Q. Why doesn't it say anything about
what vendor he used for the purchase of these
categories of advertising?
MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: If we are so
restrictive to direct funding to a specific
vendor -- well, let me change that.
We don't direct payment to a
specific vendor. We ask the agencies to buy
media in that -- with that -- buy that type of
media, and we trust that our agencies who
negotiate the best price with whichever vendors
will give us or meet the requirements that we
need for that particular type of media to reach
the audience in the way we need to reach them.
That does not mean it has to be
Google. It could have been somebody else. So
we do not tie their hands by specifically
stating Google.
BY MS. GOODMAN:
Q. In your conversation with Mr. Benson
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with respect to this document we're looking at,

Exhibit 13, did you say anything about the

request from Department of Commerce about the

use of Google ads?

MS. ZWOLINSKI: Objection. Form.

THE WITNESS: The only thing I said

was in here. He did not ask any further

questions. I did not offer any additional

information, but I like to clarify why I am

asking a question.

BY MS. GOODMAN:
Q.
Okay. Do you know why the

Department of Commerce was asking about the use

of Google ads and digital advertising in the

2020 census on January 17, 2023?

MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: I -- this would have

had to have come out of a conversation I had

with Mike and --

MS. ZWOLINSKI: Objection.
Objection. Privilege.

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The conversation -- so the
conversation, this came out of a conversation
between you and Mike, your attorney?
THE WITNESS: Yes.
MS. ZWOLINSKI: Yeah. Objection.
Privilege.
BY MS. GOODMAN:
Q. Without answering with respect to -I am not asking for my particular
communications between you and Mr. Cannon.
My question is as what this e-mail
says: "DOC is asking whether we use Google ads
in our digital advertising for 2020."
What is your understanding of why
DOC was asking that question?
MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: DOC asked a lot of
questions. It could have been anything. I
think it was -- my understanding is, it was
just what was said. Did we actually
understand, were we given -- did they give us
the ultimate -- did we agree to the terms and
my understanding was that we did on the -- on
the media authorization form or MAF.
I -- yes, that was my understanding
of the conversation.
BY MS. GOODMAN:
Q. Okay. Do you know why that question
was being asked in and around January 17, 2023?
MS. ZWOLINSKI: Objection. Form.
Privilege.
MS. GOODMAN: It's not calling for
privileged communications. I'm -MS. ZWOLINSKI: It depends on which
-- where is her basis for knowing what question
was being asked, right? You are asking for the
reason the question is being asked, and I don't
-- that could be calling for privileged
information.
MS. GOODMAN: The way that I am
asking the question is not calling for a
privileged communication between Ms. Oliphant
and any counsel at the Department of Commerce.

BY MS. GOODMAN:
Q. My question to you is your personal
understanding. Do you have a personal
understanding one way or another about why this
question was posed to you in and around January
17, 2023?
A. My understanding it was posed to me
because of my involvement with the media buying
for the 2020 census.
Q. And do you know why Department of
Commerce was asking about Google ads and
digital advertising for the 2020 -- 2020 census
in January of 2023?
MS. ZWOLINSKI: Objection.
Privilege. If -BY MS. GOODMAN:
Q. If you can answer that question
without relying on privileged communications -on communications between yourself and lawyers
for the Department of Commerce, that's what I
am asking for in your answer.
A. I can't answer.
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Q. Is that because you only have an
understanding based on privileged
communications?
A. Yes.
Q. Okay. And with whom are those -did those privileged communications take place?
A. Commerce lawyer, Mike Cannon.
Q. Any lawyers from the Department of
Justice?
A. No.
Q. Okay. Do you know what date this
lawsuit was filed?
A. Honestly, no.
Q. It was filed on January 24, 2023.
A. Okay.
Q. I will state that for the record.
So with that sort of time period in
mind, do you recall any conversations prior to
January 24, 2023, with any lawyers for the
Department of Justice with respect to using
Google in the census's digital advertising paid
media for the 2020 census?

Page
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MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I don't recall.
BY MS. GOODMAN:
Q. Is it typical in your day-to-day
work to speak with lawyers from the Department
of Justice?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I do not speak to
anybody from Justice that -- I don't -- no, it
is not.
BY MS. GOODMAN:
Q. And so if you did speak with lawyers
from the Department of Justice, is that
something you might remember because it is not
usual in the course of your work?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I may remember
speaking to them. I may not necessarily
remember timing.
BY MS. GOODMAN:
Q. Okay. And do you have any
recollection of a timing -- the timing during
-- strike that.
What is your best recollection of
when, if at all, you spoke with lawyers from
the Department of Justice about the census
bureau's use of Google in the 2020 census?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: It would have had to
have been somewhere in the time frame of when
the -- when the suit was filed.
BY MS. GOODMAN:
Q. Do you recall any conversations
prior to January of 2023?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I don't recall.
BY MS. GOODMAN:
Q. I will represent to you that the
United States Department of Justice has been
investigating Google's advertising practices
for the last three years. So over that -meaning the '21 -- 2021, 2022, 2023.
In the years 2021 or 2022, do you
recall any conversation with any lawyer from

the Department of Justice about census bureau's
use of Google for the 2020 census?
A. No.
MS. ZWOLINSKI: Objection. Form.
BY MS. GOODMAN:
Q. So as of January 17, 2023, that we
-- that you sent this e-mail to Mr. Benson, at
this time, did you anticipate participating in
litigation on behalf of the United States
against Google?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I did not.
BY MS. GOODMAN:
Q. At this time in January of 2023, did
you have any knowledge or awareness of any
investigation by the Department of Justice of
-- of Google with respect to its advertising
businesses?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Can you be more
specific?
BY MS. GOODMAN:
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Q.
Have you ever -- strike that.
To what extent, if any, were you
aware in January of 2023, that the Department
of Justice Antitrust Division was investigating
Google?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I guess when they
actually filed the suit.
BY MS. GOODMAN:
Q. And so prior to January 24, 2023,
when the Department of Justice filed the
lawsuit, you were not aware of any
investigation that the antitrust division was
doing of Google, correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I honestly -- I don't
recall.
BY MS. GOODMAN:
Q. You don't recall any awareness of an
investigation; is that right?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I didn't recall when

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the lawsuit was filed, so the timing, I can't
-- no. I don't recall. I don't -- I'm not
aware.
BY MS. GOODMAN:
Q. Prior to -- strike that.
In the course of your work as the
COR for Order 15, did you ever form a view that
Google's -- Google was engaging in
anticompetitive conduct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No, I did not.
BY MS. GOODMAN:
Q. And did you ever seek the legal
advice of the antitrust division with respect
to any anticompetitive conduct on the part of
Google?
MS. ZWOLINSKI: Objection. Form and
privileged.
MS. GOODMAN: It's a yes or no
question. It's not privileged. I am asking
whether she sought legal advice.
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No.
BY MS. GOODMAN:
Q. So for the record, your testimony is
that you never sought the legal advice of the
antitrust division with respect to
anticompetitive on the part of -anticompetitive conduct on the part of Google;
is that correct?
A. That is correct.
Q. Have you received a litigation hold
in this case?
A. Yes.
Q. And approximately when did you
receive that hold?
A. For context. We have a lot going
on. I can't honestly tell you when I first
started hearing about it or when I first
started -- when I got the litigation hold.
If I go through my e-mail, I can
tell you, but off the top of my head, we have
way too many deadlines that we are trying to
meet for this to be -- until it became a big

thing, a real thing, for it -- it just -- it
just seemed like it was information seeking, so
I don't know.
MS. ZWOLINSKI: Counsel, we've been
going over -- we've been going for over an
hour. Can we take a break.
MS. GOODMAN: Yeah, once I finish
this line of questioning, I am happy to break.
MS. ZWOLINSKI: How much time do you
anticipate that line of questioning taking?
MS. GOODMAN: A few more minutes.
MS. ZWOLINSKI: Okay.
BY MS. GOODMAN:
Q. You -- in your prior answer, you
said that it seemed like it was just
information seeking.
What did you mean by that?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: We get asked questions
all the time. It was just responding to a
request.
BY MS. GOODMAN:
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Q. When you say "it was just responding
to a request," you are talking about what
specifically?
A. We can go back to the e-mail that
you provided, Bates census ad 0000244816. I
was asked a question. I followed up to make
sure that my answer -- that the answer I
thought was correct was actually correct. This
is standard procedures.
Q. And when you say "standard
procedures," can you elaborate?
A. If I am unsure of the answer -- we
don't purchase media. So if I am unsure of the
answer, I go back to the media buyers to
clarify before I provide an answer to whoever
is requesting that information.
Q. And when you receive a request from
the Department of Commerce, is that a standard
occurrence as well?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: For clarity, are you
asking is it -- is it a standard occurrence for

THE WITNESS: Until the lawsuit was
filed and I was asked to participate -formally asked to participate.
BY MS. GOODMAN:
Q. And so is it fair to say you were
formally asked to participate after the lawsuit
was filed?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I don't recall.
BY MS. GOODMAN:
Q. And do you recall who asked you to
participate in the lawsuit?
MS. ZWOLINSKI: Objection.
Foundation.
THE WITNESS: Small group, but I'm
not sure who.
BY MS. GOODMAN:
Q. When you say "a small group," is
there sort of a group of potential people that
you are thinking of, it might have been one of
them?
A. No. I am really thinking about
Page
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me to receive requests from the Department of
Commerce?
BY MS. GOODMAN:
Q. Yes.
A. Yes.
Q. And is it a standard occurrence to
receive -- strike that.
Earlier in a prior answer, you also
said that -- when I asked you when you received
a litigation hold, you said that you receive
multiple requests and lots of things are going
on and you don't recall, but you -- do you
recall that testimony?
MS. ZWOLINSKI: Objection to form.
THE WITNESS: That was when I was
giving you context.
BY MS. GOODMAN:
Q. Okay. And you also said "until it
became a big thing, a real thing."
What -- what were you referring to
there?
MS. ZWOLINSKI: Objection. Form.

this.
It would have been legal counsel
through commerce, Mike Cannon.
Q. And as of January 17, 2023, in
Exhibit 13 that we are looking at, had you been
asked to formally participate in the lawsuit by
that -- around that time?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I don't recall.
BY MS. GOODMAN:
Q. When you say you don't recall, do
you mean, I don't recall being asked prior to
January 17, 2023 to participate in this
lawsuit?
A. Define "participation."
Q. Well, how do you understand it?
A. Anytime -- my understanding of
participation is actually getting to the point
where I am here doing a deposition. That is
what I am considering participation.
Q. Would you also consider
participation in signing off on interrogatory
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responses?
A. Yes.
Q. Okay.
MS. ZWOLINSKI: Objection.
THE WITNESS: Sorry.
BY MS. GOODMAN:
Q. Would you also consider
participation collecting documents?
A. I consider collecting documents
responding to a request which is what we do all
the time. That does not necessarily mean
participation.
Q. Do you respond -- have you responded
to any requests to collect documents where the
requests were made by the Department of
Justice?
MS. ZWOLINSKI: Objection. Form,
and objection. Privilege.
MS. GOODMAN: I am asking whether
she had -- whether Ms. Oliphant has had to
collect documents at the request of the
antitrust division of the Department of

(A short recess was taken.)

THE VIDEOGRAPHER: Going back on the

Justice. That is not -- it's a yes or no
question. It does not call for privileged
legal advice or any fact or opinion or work
product. She can answer that question.
MS. ZWOLINSKI: You can answer.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. And when approximately in time do
you recall receiving any requests to collect
documents from the antitrust division of the
Department of Justice?
A. I don't know.
Q. Okay. Sitting here today, do you
recall any request to you to participate in
this lawsuit in the way that we have described
it prior to January 24, 2023?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: I don't recall.
MS. GOODMAN: Okay. We can take a
break now.
THE VIDEOGRAPHER: Going off the
record. The time is 10:49.
BY MS. GOODMAN:
Q.
Ms. Oliphant, did you discuss the

substance of your deposition with your counsel

on the break?

MS. ZWOLINSKI: You can say that -just one second. Sorry.
MS. GOODMAN: It's again a yes or no
question.
MS. ZWOLINSKI: That isn't really

the relevant factor. Let me -- you can answer

that question but don't discuss the substance

of anything that we discussed.

You can answer whether or not you

discussed your deposition during the break, but

none of the substance.

THE WITNESS: Can you be more

specific in -- what do you mean. What do you

mean by discussing the deposition?

BY MS. GOODMAN:
Page
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record. The time is 11:08.

Q. Did you discuss with your counsel on
the break the matters to which you had
testified in the previous hour sitting here in
this deposition?
A. No.
Q. So earlier, we talked about a master
contract.
Do you -- what is the official name
of that master contract for the 2020 census?
A. It is the 2020 census integrated
communications contract.
Q. For shorthand, can we call that the
master contract today?
A. You sure can.
Q. And that contract -- the master
contract was issued to Young & Rubicam; is that
correct?
A. Yes. And you'll note that at some
point, they changed their name to VMLY&R.
Q. What is the best acronym to use
today for -A. Prime.
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Q.
Prime contractor?

A.
Just prime contractor. That's easy.
Q.
Okay. And we'll refer to Young &

Rubicam which is also known as VMLY&R as the

prime contractor?

A.

you.

Q.
Y&R?

A.
Yeah.

Q.
And various task orders were issued

Prime or Y&R, whichever works for
under the master contract, correct?

A.
Yes.

Q.
And Order 15 which relates to paid

media, that was also issued to Y&R, correct?

A.
Yes.

Q.
And Order 8 under the master

contract, which relates to recruiting of census

workers, that was also issued to Y&R, correct?

A.
Yes.
Q.
Okay. Order 15, describe for me at
a high level what Order 15 covers.
A.
Order 15 covered the development of

Page
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the media strategy, plans, purchasing -- I am
looking forward, strategy, plan, purchasing and
evaluation. By evaluation, that is comparing
planned versus actual.
Q. When you say "planned versus
actual," are you referring to planned media
spend as compared to actual media spend?
A. Yes.
Q. Okay. And did Order 15 contemplate
Y&R entering into subcontracting relationships?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: For context. When the
communications contract was competed, Y&R -when they were awarded the contract, the
contract -- they came with their entire team in
place.
The RFP for the contract
specifically requested the ability to create
messaging to reach numerous languages in their
native tongue.
The previous census -- well -- so
Y&R came to the table with their contractors
already as part of their team with the
understanding that each contractor had a role.
You had a number of contractors that were
audience-specific and they were required -their role was to create communications to
reach their audience because that was their
specialty, and in some cases, they also bought
media.
Most of the media they purchased was
local and hyper local. Y&R, the agency itself,
did not buy media. They brought subcontractors
on to plan and purchase the media.
BY MS. GOODMAN:
Q. And that was permitted under Order
15, correct?
A. Yes, it was.
Q. And as a result, the census bureau
did not contract directly with any of the
subcontractors or entities who were purchasing
the media; is that correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: The census bureau

contracted with Y&R and to -- to perform all
the requirements under the communications
contract, which included planning and
purchasing media. As such, Y&R contracted -subcontracted with other agencies to assist
them. They were purchasing media on behalf of
the census bureau.
BY MS. GOODMAN:
Q. And so those other agencies who were
purchasing media on behalf of the census
bureau, with respect to those agencies, there
is no contract between the census bureau and
those agencies who were purchasing media on
behalf of the census bureau, correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No direct contracts,
yes, correct.
BY MS. GOODMAN:
Q. And so after the master contract was
awarded, the communications contract, I think
you also referred to it, then Order 15 was
agreed to; is that correct?
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MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Yes. It was awarded.
BY MS. GOODMAN:
Q. And that was also as awarded to
Young & Rubicam?
A. For context. The prime contract was
awarded to Young & Rubicam, and thus, all
orders under the prime contract are
automatically awarded to Young & Rubicam.
Q. And Order 15 pertains to media
planning and buying, correct?
A. Correct.
Q. And so by virtue of Order 15,
pertaining to media planning and buying being
awarded to Young & Rubicam, there was no
separate order between the census bureau and
any other agency on whose -- who was making
paid media purchases, correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Correct.
BY MS. GOODMAN:
Q. And as part of agreeing to Order
Page
Page
with Y&R, they had to complete a technical
proposal; is that correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: That is correct.
BY MS. GOODMAN:
Q. And what does the technical proposal
entail?
A. The government, the census bureau in
this case, defines the requirements. The
requirements are shared with Y&R and they
provide a proposal in response to those
requirements.
The census bureau or the government
reviews their proposal to make sure it's in
line with the requirements. If negotiations
are required, they are done between the
contractor, the contracting officer -- Y&R, the
contracting officer and the CORs before a final
proposal is accepted.
(Deposition Exhibit 14 was marked
for identification.)
BY MS. GOODMAN:
Q. So I am going to hand you what I
have marked as Exhibit 14,
CENSUS-ADS-0000387420 through 387490.
And take a look at it, and just -can you confirm for me that this is the
technical proposal that Y&R submitted for Order
15?
Ms. Oliphant, you see the first page
says: "Integrated communication contract,
revised technical proposal, Version 2, October
5, 2018"?
A. Yes, I do.
Q. Okay. Any reason to doubt that this
is the technical proposal submitted by Y&R?
A. I have no doubt this is the
technical proposal submitted from Y&R. For
context, every -- multiple technical proposals
were received as additional work was added. I
am verifying this was for the first initial
technical proposal.
Q. Okay.
A. That's --

Q. And sitting here today, do you
recall technical proposals issued with respect
to Order 15 after October 5, 2018?
A. Yes. They would -- ideally, they
would be considered modifications, so it would
be -- if we wanted to do additional work for
some reason that was in scope of the order but
was in addition to what had already been
planned, approved and funded, Y&R would -- we
would have to provide the requirements to Y&R.
They would still have to provide a
technical and a price proposal. We would still
go through the same process. It should be
adequately or appropriately marked. I am just
making sure.
Q. Okay. I want to direct your
attention to Page 6 of this document,
Bates-labeled 25 at the end.
A. Uh-huh.
Q. And in the first full paragraph
beginning: "Supplementing these workshops."
Do you see where I am?
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to reach people in the next census does it
matter to you to understand how effective open
web display advertising was in reaching your
campaign goals?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. And why is that?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: In the over -- we have
to evaluate every type of media and how
effective it was.
Again, most people do not remember
where they heard an ad. What the digital ads
that the -- the clickable ads allowed you to do
was to actually trace their steps. So it's a
little bit easier to determine if it generated
the action you wanted it to generate.
You can't do that necessarily
through TV or print or radio or out of home,
but that does not mean they were not as
effective at driving engagement.

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BY MS. GOODMAN:
Q. And for purposes of understanding
the effectiveness of digital ads, nothing in
this document speaks specifically to open web
display advertising; is that correct?
MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: Not using the
terminology, no.
BY MS. GOODMAN:
Q. And you don't use that terminology
because it's not something you've encountered
in the industry; is that right?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: It may -- I may have
encountered it in the industry, but in order to
ensure that everybody understood what we were
talking about, we used plain language and tried
to steer away from industry jargon, and that
would be considered industry jargon because
it's too broad of a category and doesn't -- we
understand digital way easier than we
understand open display, if that makes sense.
In order to -- plain language is
extremely important, extremely important. And
to get the buy in internally and externally, we
need to be able to understand what we did and
be able to discuss what we did. And that
discussion could be held by anybody, so it
needs to be terminology that they can relate
to.
BY MS. GOODMAN:
Q. And to your -- is it your testimony
that open web display advertising is
terminology that is not relatable?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: It depends on the
audience. It's not that it's not relatable.
It's just that you have to consider the
audience.
The bulk of those reviewing these
have no media background. They don't
understand. They understand digital. Their
watches are digital. Their clocks are digital.

Their thermostats are digital. They don't
understand open web advertising.
BY MS. GOODMAN:
Q. Okay. And if we turn to page ending
in Bates 86, this includes a table of
advertisement formats, correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. And none of the types listed -- none
of the formats listed here are specifically
identified as open web display advertisements;
is that correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: That is correct.
BY MS. GOODMAN:
Q. And can you -- of the -- of the
items here in Table 2, which, from your point
of view, constitute open web display
advertising, if any?
MS. ZWOLINSKI: Objection. Form.
Foundation.
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THE WITNESS: I don't know.
MS. GOODMAN: And, Counsel, for the
record, we've not found the data underlying
this study in your productions, so we'd ask you
to produce it or direct us to the Bates number
where it's produced.
Okay. Handing you Exhibit 31,
CENSUS-ADS-245053 through 55.
(Deposition Exhibit 31 was marked
for identification.)
BY MS. GOODMAN:
Q. And this is an e-mail exchange with
yourself, Lizannette Vélez, and Steven Scheid,
correct?
A. Scheid.
Q. Scheid?
A. Scheid.
Q. And Steven Scheid is the author of
the digital study we were just looking at?
A. He was one of them, yes.
Q. And if I direct your attention to
your December 6, 2022 e-mail on the second

Page
Page
page -A. Uh-huh.
Q. -- you write that -- well, strike
that.
Mr. Scheid is asking if there is a
way to include in the requirements contract
specific data that you would want to receive in
order to analyze it, correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. And your response to him is: "The
limitation is we are asking for information
five years before it is needed, and so much can
change in that time frame."
Do you see that?
A. Yes.
Q. What did you mean by that?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: We conducted market
research for the 2020 ICC in 2015. That's five
years before the media runs. A lot changes in
five years.
So if we stick to the same schedule
for 2030, assuming we are doing a paid
communications effort in 2030, we would be
seeking requirements in Year 5, 2025, again,
five years before the actual census is done and
before the ads run.
We will reach out to him for the
requirements, but we will have to be very clear
in that the requirements he is asking for in
2025 may not make sense in 2030. It may be -what's -- what's collected may be different in
2030 than what he is -- because it may be a
completely different way of doing things,
different -- industry standards change based
upon the type of media and how media is
deployed on a regular basis.
So this is managing expectations
that we will absolutely reach out in a
requirements gathering session, because we
reach out across the bureau, but there is no
guarantee that what he is asking for he will

get because things change.
BY MS. GOODMAN:
Q. And with respect to digital
advertising specifically, what have you
observed in the course of your time at the
census bureau in terms of the pace of change?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Well, in 2000 we did
not use any digital advertising. In 2010 we
used a very small percentage of digital
advertising. In 2020 we used a significantly
more percentage of -- of the media buy for
digital advertising.
The way digital is evolving and,
just based upon my observations, with print
becoming more obsolete and moving to digital,
with TV moving to more digital- and
streaming-type deliveries, with radio moving
more from -- more from terrestrial to digital
or satellite, it would appear that the
trajectory for the use of digital would be
growing exponentially.
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But that is my opinion. It's not
based on any real data that I can quote, and we
will do market research when we're ready to
start the process to determine. And part of
that market research is reaching out to
industry experts about the direction of -- of
advertising and vehicles to use. We don't
purport to know that ourselves. We always ask
those questions.
BY MS. GOODMAN:
Q. And Lizannette writes as well on
Page 1, and her second -- sorry. In her third
paragraph, she writes: "Since digital planning
analytics is something that is constantly
changing and evolving, my suggestion is to have
the staff from DSSD that will be working
directly with 2030 ICC sit down with the CNMP
analytics team."
Do you see that?
A. Yes.
Q. Do you agree with Mr. Vélez that
digital planning and analytics is something

Page
Page
that is constantly changing and evolving?
A. Absolutely.
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Absolutely.
BY MS. GOODMAN:
Q. And I'm sorry. Flipping back to
your e-mail in the third paragraph, you write:
"We do not direct them in the solution because
given the speed with which this industry
changes, the contractor may be able to provide
a better solution than that which we have
determined."
What industry are you referring to
here?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: The advertising
industry.
BY MS. GOODMAN:
Q. Okay. And are you referring to
anything more specifically than the advertising
industry?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No.
BY MS. GOODMAN:
Q. Okay. And in your last paragraph,
you write: "We may have the opportunity to
conduct additional market research specifically
around the characteristics of digital ads."
Do you see that?
A. Yes.
Q. What kinds of market research around
the characteristics of digital ads were you
contemplating could possibly be performed?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: When we conduct market
research, what we have done in the past is we
formulate the questions that we are seeking
answers to, and in addition to -- what is it?
We post them because this is -- it's -- it's
like an FRN. I can't remember what that stands
for. Federal Register Notice.
We -- we're not specific -- we don't
pick and choose to whom we send the questions.
We post the questions through a Federal

Register Notice and ask industry to respond.
What I was saying there is we have in the past
done pretty generic around what do you think is
the best structure for the contract, do you
think this is something that can be done by a
small business as the prime, things like that,
where do you see advertising, what new trends
are available.
We could actually do one
specifically around digital media focusing on
what DSSD is interested in learning and
formulate questions around what kind of data
are available to help assist in understanding
X, Y, and Z.
And then we take that information,
and we include it, one, in our market research
report but also as -- we take parts of that to
help write the requirements for the master
contract in a way that is not specific but
provides the flexibility to -- that does not
lock them into statistics or formats -- types
of data that are available in 2025 that may
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change in 2030.

Does that --

BY MS. GOODMAN:
Q.
That does make sense. Thank you.

And so the market research report

for the 2020 census, is it correct that that

was facilitated through a Federal Register

Notice and industry participants responding?

MS. ZWOLINSKI: Objection. Form.

THE WITNESS: I believe so.

MS. GOODMAN: Okay. Let's take a

break.
THE VIDEOGRAPHER: Going off the
record. The time is 18:04.

(A short recess was taken.)

THE VIDEOGRAPHER: Going back on the

record. The time is 18:19.
(Deposition Exhibit 32 was marked
for identification.)
MS. GOODMAN: Ms. Oliphant, I am

handing you Exhibit 32, CENSUS-ADS-
through 75493.

Page
Page
BY MS. GOODMAN:
Q. And do you recognize this document
as the final Order 15 contract?
And I can direct your attention the
page ending in Bates 52 at the top.
A. I think this -- I believe this was
the original. There have been multiple
modification since then, so I wouldn't say this
is the final because the final would include
all the modifications.
Q. Okay. At least this version of
the -- or this original contract did not fix
the price for any particular media buy; is that
correct?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No media buys were
only fixed price. Only labor.
BY MS. GOODMAN:
Q. And it didn't fix the quantity of
media to be purchased, correct?
A. No, it did not.
MS. ZWOLINSKI: Objection.
BY MS. GOODMAN:
Q. All right. Setting that document
aside, I want to circle back to just ask you
one more question with respect to your
participation in this lawsuit, sort of just to
reorient you to that portion of the day during
your deposition. Okay.
And my question to you is whether -did you ever seek legal advice from an attorney
at the antitrust division in and around January
of 2023?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Can you be more
specific.
BY MS. GOODMAN:
Q. I can try.
Have you ever sought the counsel -or sought legal advice from an attorney at the
antitrust division of the Department of
Justice?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: No.

BY MS. GOODMAN:
Q. Okay. And if you need to seek legal
advice in the course of your work, to whom do
you turn?
MS. ZWOLINSKI: Objection. Form.
THE WITNESS: Department of
Commerce.
BY MS. GOODMAN:
Q. And has the antitrust division
provided you any legal advice in the course of
your participation in this lawsuit?
MS. ZWOLINSKI: Objection. Form.
And -THE WITNESS: How do you define -MS. ZWOLINSKI: You can answer.
THE WITNESS: How do you define
"legal advice"?
BY MS. GOODMAN:
Q. If you have a -- if there is a legal
issue that you are confronting in the course of
your work or need counsel on or you have a
legal question, has the antitrust division
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provided you legal advice?
MS. ZWOLINSKI: Objection. Form. THE WITNESS: No.
BY MS. GOODMAN:
Q. Okay. And is your answer the same in January of 2023?
MS. ZWOLINSKI: Objection. Form. THE WITNESS: Yes.
BY MS. GOODMAN:
Q. Okay. And in the course of your
participation in this lawsuit if you've had
questions about your participation in this
lawsuit, have you turned to the attorneys at the antitrust division with your questions? MS. ZWOLINSKI: Objection. Form. THE WITNESS: No.
BY MS. GOODMAN:
Q. To whom have you turned, if anyone? A. Commerce.
Q. And is that Mr. Cannon?
A. That's Mr. Cannon, yes.
Q. Do you consider the lawyers for the
Page
Page
antitrust division to be lawyers for the census

bureau?

MS. ZWOLINSKI: Objection. Form.
Foundation.

THE WITNESS: I do not.

BY MS. GOODMAN:

Q.

Why not?
MS. ZWOLINSKI: Objection. Form.
Foundation.

THE WITNESS: Since census has their

own lawyers and we have commerce lawyers, and I

believe the commerce lawyers would be more --

more sort of categorized in that way versus

DOJ.

BY MS. GOODMAN:
Q.
Okay. And is your answer the same

with respect to your participation in this

lawsuit as a representative of the census

bureau?

MS. ZWOLINSKI: Objection. Form.
Foundation.
THE WITNESS: Yes.
MS. GOODMAN: I have no further
questions. I'll pass the witness.
MS. ZWOLINSKI: We have no
questions.
MS. GOODMAN: Okay. Thank you so
much for your time, Ms. Oliphant. I very much
appreciate it.
THE WITNESS: You're welcome. Thank
you.
THE VIDEOGRAPHER: Off the record.
MS. GOODMAN: Yes.
THE VIDEOGRAPHER: This marks the
end of the deposition of Kendall Oliphant. We
are going off the record at 18:24.
(Whereupon, the proceeding was
concluded at 6:24 p.m.)

CERTIFICATE OF NOTARY PUBLIC
I, Bonnie L. Russo, the officer before
whom the foregoing deposition was taken, do
hereby certify that the witness whose testimony
appears in the foregoing deposition was duly
sworn by me; that the testimony of said witness
was taken by me in shorthand and thereafter
reduced to computerized transcription under my
direction; that said deposition is a true
record of the testimony given by said witness;
that I am neither counsel for, related to, nor
employed by any of the parties to the action in
which this deposition was taken; and further,
that I am not a relative or employee of any
attorney or counsel employed by the parties
hereto, nor financially or otherwise interested
in the outcome of the action.
<%11937,Signature%>
Notary Public in and for
the District of Columbia
My Commission expires: August 14,
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ACKNOWLEDGMENT OF DEPONENT
I, KENDALL OLIPHANT, do hereby certify that

I have read the foregoing transcript of my

testimony taken on 8/9/23, and further certify

that it is a true and accurate record of my

testimony (with the exception of the

corrections listed below):

Page
Line
Correction

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

____
____
__________________

______________________
KENDALL OLIPHANT
SUBSCRIBED AND SWORN TO BEFORE ME
THIS _____DAY OF ________________, 2023.
__________________ ______________________
(NOTARY PUBLIC)
MY COMMISSION EXPIRES:
Job No. CSPage
Rachel Zwolinski, Esq.
rachel.zwolinski@usdoj.gov
August 10, RE: United States, Et Al v. Google, LLC
8/9/2023, Kendall Oliphant (#6031956)
The above-referenced transcript is available for
review.
Within the applicable timeframe, the witness should
read the testimony to verify its accuracy. If there are
any changes, the witness should note those with the
reason, on the attached Errata Sheet.
The witness should sign the Acknowledgment of
Deponent and Errata and return to the deposing attorney.
Copies should be sent to all counsel, and to Veritext at
erratas-cs@veritext.com
Return completed errata within 30 days from
receipt of testimony.
If the witness fails to do so within the time
allotted, the transcript may be used as if signed.
Yours,
Veritext Legal Solutions
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