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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S BRIEF IN OPPOSITION TO
THE UNITED STATES’ MOTION FOR A PROTECTIVE ORDER
Plaintiff United States seeks to preclude Google LLC (“Google”) from “conducting a Rule
30(b)(6) deposition of a representative of the Department of Justice, Antitrust Division in this
matter.” United States’ Mem. ISO Mot. for a Protective Order 15, ECF No. 322. DOJ cites the
“Shelton rule” to argue that Google is improperly trying to depose the United States’ “litigation
counsel.” Mot. 1. That is wrong, and ignores the simple principle that when the government
brings an enforcement action, it too is subject to a Rule 30(b)(6) deposition. Google served its
Rule 30(b)(6) notice on the United States seeking to obtain facts about the government’s
investigatory meetings and communications, which ostensibly formed part of the factual basis for
Plaintiffs’ case. Such facts, discoverable and relevant on that basis alone, are also likely to reveal
material bearing heavily on any or all of five pivotal issues in this case, including (i) the effects of
Google’s conduct on consumers; (ii) Google’s legitimate business justifications for its alleged
conduct; (iii) witness credibility and bias; (iv) the definition of the relevant markets at issue and
Google’s market share in those markets; and (v) the remedies sought by the United States. DOJPage 2 PageID#
is inappropriately and prematurely attempting to avoid responding to factual discovery on these
pivotal issues.
At bottom, this civil antitrust enforcement action is governed by the discovery rules that apply
to all civil litigation, including cases where the United States is a litigant. Because the information
sought is relevant and non-privileged, the Court should allow Google to depose DOJ about the
factual underpinnings of this lawsuit or to obtain equivalent discovery by another feasible method.
BACKGROUND
Google’s Rule 30(b)(6) Notice to the United States: Google served a Rule 30(b)(6) notice
on the United States with 41 topics directed to a variety of relevant factual issues. See ECF No.
321-1. The United States did not serve objections to that notice, but did engage in extensive meetand-confer negotiations with Google on refining, defining, and narrowing the topics. The topics
fall into three broad categories:
First, numerous topics are directed to the eight “Federal Agency Advertisers” (“FAAs”), and
are not at issue in this motion.1 These topics have been refined and narrowed through the parties’
continuing meet-and-confer negotiations, and a Rule 30(b)(6) deposition of the Centers for
Medicare and Medicaid Services went forward on August 25 without issue.
Second, three topics are directed to affirmative defenses concerning the role of Assistant
Attorney General Jonathan Kanter in conceiving and initiating this action: Topics 31, 37, and 38.
Those topics are the subject of another motion by Plaintiffs, which will be heard by the District
Judge on September 8. See ECF Nos. 317 & 319. That motion seeks a merits ruling on two of
These topics largely focus on whether each FAA satisfies the “direct purchaser” rule of federal
antitrust law. See, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 745-48 (1977) (only “direct
purchasers” have standing to sue); Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006)
(“Those who purchase indirectly or through intermediaries are barred from recovering for antitrust
injuries.”). Page 3 PageID#
Google’s affirmative defenses, which purportedly would moot the need for that discovery. In the
alternative, Plaintiffs seek a protective order on Topics 31, 37, and 38, as well as other pending
discovery. See ECF No. 318 at 8 n.13 & 22-27. Because those topics are already at issue before
the District Judge, this Court need not—and should not—consider them as part of this motion.
Third, in addition to Topics 31 and 37-38, Topics 25, 28-29, 33-36, and 39-41 were also
directed to the United States’ Antitrust Division at the Department of Justice. Of these, Google
has already dropped Topics 28, 35, and 41 during the meet-and-confer process, and now agrees to
also withdraw Topic 25. That leaves only six topics at issue in this motion:
Topic 29: Your involvement and communications with any third parties concerning
the Investigation and/or this Action.
Topic 33: Your responses to Google’s Interrogatories.
Topic 34: Your responses to Google’s Requests for Admission.
Topic 36: All communications, including written, oral, face-to-face, telephonic,
videoconference, or otherwise with any representative of the European
Commission concerning the Investigation or this Action.
Topic 39: Your market share calculations as alleged in the Complaint for the
alleged publisher ad server market, ad exchange alleged market, and alleged market
for advertiser ad networks for open web Display Advertising.
Topic 40: The equitable remedies You seek, including any coordination or
communications between You and the European Commission regarding such
remedies.
Meet-and-Confer Negotiations: After Google served its Rule 30(b)(6) notice on the United
States on July 20, the parties engaged in several meet-and-confer negotiations and exchanged
letters. Negotiations progressed, but were complicated after the United States served its expansive
Rule 30(b)(6) notice upon Google on August 9—almost three weeks after Google served its Rule
30(b)(6) notice on the United States. See ECF No. 312-1.
On August 18—as the parties were negotiating over their dueling Rule 30(b)(6) notices, and
after they had already discussed agreement to a standstill on motion practice concerning the Page 4 PageID#
parties’ respective notices—DOJ abruptly informed Google that it would instead file a motion for
judgment on the pleadings or to strike certain affirmative defenses to which those topics pertained,
or move for a protective order. Based on DOJ’s changed position, Google understood there to be
an impasse in what had seemingly been productive negotiations, and both sides filed motions on
August 18. Then, on August 22, DOJ went a step further and filed this second motion for a
protective order, which overlaps in part with its earlier-filed motion for judgment on the pleadings
or for a protective order.
Since those motions have been filed, the parties have resumed their meet-and-confer
discussions in an effort to narrow areas of disagreement with respect to their Rule 30(b)(6) notices.
While the parties have made progress on other topics, DOJ continues to steadfastly refuse to
present a witness to testify on behalf of the United States on these topics, absent a court order.
ARGUMENT
The Court should deny the United States’ motion for three reasons. First, although this is a
civil antitrust enforcement action, the discovery rules apply to the United States as to any other
private litigant. No exception or limitation in the Federal Rules of Civil Procedure or the Local
Civil Rules gives the United States a free pass under Rule 30(b)(6) or forecloses discovery into the
topics now at issue. And case law recognizes that a defendant in an enforcement action has a right
to a Rule 30(b)(6) deposition of the enforcer, even if the designee is an attorney. Second, the topics
at issue seek relevant discovery. Third, the United States’ arguments about privileged and
protected information are conclusory, overblown, and premature—and certainly do not justify a
blanket protective order precluding deposition discovery. Rather, assertions of privilege should
be handled on a question-by-question basis. Page 5 PageID#
Alternatively, if the Court is inclined to grant any part of the United States’ motion, it should
instead enter an order under Rule 26(c)(1)(C) “prescribing a discovery method other than the one
selected” by Google for certain topics, which may be answered by written responses or satisfied
by further document productions, instead of through designee testimony. Indeed, Google sought
to obtain written interrogatory responses on many of the at-issue topics, but to date, DOJ has not
provided complete answers. Simply granting the United States’ motion outright, however, would
unjustly preclude Google from pursuing relevant factual discovery from the DOJ on these topics
by any means.
I.
GOVERNING PRINCIPLES OF PROCEDURAL LAW SUPPORT DENYING
THE UNITED STATES’ MOTION.
Despite the United States’ rhetoric about “harassing” discovery practices, Google is using
ordinary discovery tools in the ordinary way. Generally, the parties in a civil action “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
Fed. R. Civ. P. 26(b)(1). The parties are free to use the discovery tools in “any sequence” that
suits the needs of the case. Fed. R. Civ. P. 26(d)(3)(A). Subject to the limitations in the Federal
Rules and Local Civil Rules, the parties may also choose which discovery tools to use and how to
use them, unless the Court “determines that: (i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). One of those routine discovery
tools is deposition under Rule 30(b)(6), which allows a party to serve a deposition notice on an
organization, including a governmental litigant, to provide deposition testimony on specific topics
stated in the notice. Page 6 PageID#
These rules apply to this civil antitrust enforcement action as they do to any other civil
action. “The government as a litigant is, of course, subject to the rules of discovery”—including
in civil antitrust enforcement actions. United States v. Procter & Gamble Co., 356 U.S. 677, (1958) (civil antitrust enforcement action); accord, e.g., Doe v. Mast, 2023 WL 4492466, at *(W.D. Va. July 12, 2023) (quoting Procter & Gamble’s statement of this rule). Thus, in civil
antitrust enforcement actions, as in any other civil action, the “instruments of discovery serve a
useful purpose [of making] a trial less a game of blindman’s buff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable extent.” Procter & Gamble, 356 U.S. at
682 (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The United States’ requested relief
would thwart this “useful purpose.”
In suggesting that Google should resort to third-party discovery instead of using the
ordinary tools of party discovery, Mot. 14, the United States flips the process on its head. For
starters, “if the party seeking discovery can obtain the information from another party in the
litigation, it must do so rather than burden a nonparty.” Sziber v. Dominion Energy, Inc., WL 6332784, at *2 (E.D. Va. Sept. 14, 2021).2 That principle applies even more forcefully here:
it would be more efficient and less burdensome in the aggregate for DOJ, the party common to
communications with over 300 industry participants, to provide a single set of testimony about
those meetings than it would for Google to seek similar discovery from over 300 nonparties. And
even if Google could (or already had) efficiently gathered such information from nonparties, this
does not justify protection from Rule 30(b)(6), because Rule 30(b)(6) testimony is uniquely
“designed to bind the corporation or agency.” SEC v. Merkin, 283 F.R.D. 689, 697 (S.D. Fla.)
See also, e.g., Sherrill v. DIO Transp., Inc., 317 F.R.D. 609, 615 (D.S.C. 2016) (“‘If documents
are available from a party, it has been thought preferable to have them obtained pursuant to Rule
34 rather than subpoenaing them from a nonparty witness.’” (quoting 8A Charles Alan Wright, et
al., Federal Practice and Procedure § 2204 at 365 (2d ed. 1994))). Page 7 PageID#
(citing New Jersey v. Sprint Corp., 2010 WL 610671, at *2-3 (D. Kan. Feb. 19, 2010)), objections
overruled, 283 F.R.D. 699 (S.D. Fla. 2012).
Moreover, because the United States has voluntarily filed a civil enforcement action, it is
subject to a Rule 30(b)(6) designee deposition on factual issues in its capacity as an investigator—
even if the designee will be an attorney. That follows from the rule that when an agency
“voluntarily br[ings] an action against [a] [d]efendant,” that defendant “is entitled to broad
discovery to understand and prepare a defense against [the agency’s] allegations.” SEC v.
McCabe, 2015 WL 2452937, at *4 (D. Utah May 22, 2015).
In providing that broad discovery, the agency must comply with Rule 30(b)(6), which
“expressly applies to a government agency and provides neither an exemption from Rule 30(b)(6)
nor special consideration concerning the scope of discovery, especially when [the agency]
voluntarily initiates an action.” SEC v. Kramer, 778 F. Supp. 2d 1320, 1327 (M.D. Fla. 2011)
(quotation marks omitted); Merkin, 283 F.R.D. at 694 (“[J]ust like any party litigating in federal
court, Merkin has the right to take a [Rule] 30(b)(6) deposition from the SEC.”). Applying that
principle, courts reject government efforts to “defeat the provisions of [Rule] 30(b)(6)” merely by
claiming that the agency’s designee will be someone “with an ‘esq.’ after his name.” McCabe,
2015 WL 2452937, at *4. Courts thus require government agencies to designate Rule 30(b)(6)
deponents to testify “about non-privileged, pre-litigation factual matters,” rather than “litigation
strategy.” United States v. Newman, 531 F. Supp. 3d 181, 192-93 (D.D.C. 2021) (quotation marks
omitted); see also EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2010 WL 2572809, at
*5 (D. Md. June 22, 2010) (observing that courts allow Rule 30(b)(6) testimony by agency
designees “as to the facts the investigator learned during her investigation,” and specifically Page 8 PageID#
require deponents to answer questions concerning interviews conducted during the agency’s
investigation).The plain rule that “the work product doctrine does not extend to protect underlying facts,
[or] the persons from whom that party has learned such facts,” Gualtieri v. TD Bank, Nat’l Ass’n,
2011 WL 13302505, at *2 (M.D. Fla. Mar. 10, 2011), applies equally to the government as to any
other civil plaintiff. The Court should accordingly rebuff the United States’ effort to sidestep the
normal discovery process.
II.
THE TOPICS ARE RELEVANT AND TYPICAL OF RULE 30(b)(6)
DISCOVERY.
Each of the topics at issue seeks relevant information. The United States does not attempt
to show otherwise. Instead, the United States makes only a process objection (that “litigation
counsel” should not be deposed) and a premature and overbroad privilege objection (that all
questions on all topics will seek work product). Neither objection warrants a protective order as
to any testimony of these topics.
Topic 29: Your involvement and communications with any third parties concerning
the Investigation and/or this Action.
Google seeks information about non-privileged, pre-litigation factual matters and the DOJ’s
communications with nonparties about this litigation. In a civil enforcement action, pre-litigation
communications and interviews with third parties who are actual or potential witnesses are
permissible subjects for discovery and are a proper topic for a Rule 30(b)(6) deposition. See supra
pp. 6-8; see also EEOC v. Jewel Food Stores, Inc., 231 F.R.D. 343, 346 (N.D. Ill. 2005)
In McCormick & Schmick’s, the court ultimately granted the EEOC’s motion for a protective
order because the EEOC had already produced its investigative file, “including all witness
statements contained therein.” 2010 WL 2572809, at *6. Here, the vast majority of
communications with third parties produced as part of DOJ’s investigative materials are basic
logistical/scheduling communications, and do not contain the substance of the third parties’
statements to DOJ. Page 9 PageID#
(compelling answers to interrogatories seeking the identities of persons who had made statements
relating to claims in the case and detailing the substance of information those third parties
possessed, because such “factual information that a lawyer obtains when investigating a case” does
not constitute work product). Thus, there are no procedural or substantive grounds for precluding
Google from obtaining testimony through a Rule 30(b)(6) deposition on this topic.
Topic 33: Your responses to Google’s Interrogatories.
Google seeks testimony about the factual basis for, or further explanation of, certain
interrogatory answers served by DOJ. A Rule 30(b)(6) deposition may be sought to follow up on
a party’s interrogatory answers. See FDIC v. Brudnicki, 2013 WL 5814494, at *3 (N.D. Fla. Oct.
29, 2013). Google is willing to narrow this topic to Interrogatories No. 3 (“Identify all persons
other than Google with whom You communicated as part of the Investigation, including the
person’s title, employer or affiliation, and the date(s) of Your communication(s)”) and No. (“From the start of Your Investigation until August 25, 2023, Identify each and every
Communication between the Department of Justice on the one hand, and any Potential Witness or
the European Commission on the other hand, related to the subject matters of the Investigation or
of the Action.”).4 Like Topic 29, these interrogatories and the follow-up Rule 30(b)(6) deposition
seek permissible fact discovery.
Topic 34: Your responses to Google’s Requests for Admission.
On behalf of all FAAs, DOJ served one-size-fits-all responses to Google’s Requests for
Admission (“RFAs”). The first set of RFAs were aimed at ascertaining whether the FAAs were
direct purchasers entitled to seek antitrust damages. See ECF Nos. 291 & 292 (Google’s motion
Google expects to reach an agreement with the United States whereby both parties either (i)
withdraw their respective topics concerning prior responses to discovery requests or (ii) accept
written responses in lieu of Rule 30(b)(6) designee testimony on such topics. Page 10 PageID#
to compel RFA responses); supra p. 2 & n.1 (discussing direct-purchaser rule). Based on the
response to the first set of RFAs, Google served a second set of RFAs, the responses to which are
due September 6, 2023. As with DOJ’s interrogatory answers, Google seeks to follow up on these
issues through a Rule 30(b)(6) deposition, which appears to be the most efficient method to clarify
the United States’ admissions and bind the United States to them.Topic 36: All communications, including written, oral, face-to-face, telephonic,
videoconference, or otherwise with any representative of the European
Commission concerning the Investigation or this Action.
DOJ’s communications with foreign enforcement agencies are not privileged. Ctr. for Int’l
Env’t L. v. Off. of U.S. Trade Rep., 237 F. Supp. 2d 17, 23-31 (D.D.C. 2002) (communications
between United States agency and foreign government are not protected by FOIA Exemption 5,
which includes legal privileges). Further, by communicating with or disclosing materials to the
European Commission, DOJ has waived any privilege over such communications and materials.
DOJ recognizes as much, having already produced email communications between itself and the
EC. Although both DOJ and the European Commission were investigating Google’s ad tech
business at the time of the communications or disclosures, a shared target is not a sufficient basis
to warrant common-interest protection: “[t]he common interest rule does not apply merely because
one party has an interest in a litigation involving another party” or because there exists a “common
problem.” Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013). Instead, the interests
of the parties must be “identical.” Glynn v. EDO Corp., 2010 WL 3294347, at *7 (D. Md. Aug.
20, 2010); see also Bank of Am. N.A. v. Terra Nova Ins. Co., 211 F. Supp. 2d 493, 496-(S.D.N.Y. 2002) (“Because the interests of the parties were not identical, the common interest
As with Topic 33, Google expects to reach an agreement with the United States whereby both
parties either (i) withdraw their respective topics concerning prior responses to discovery requests
or (ii) accept written responses in lieu of Rule 30(b)(6) designee testimony on such topics. Page 11 PageID#
doctrine does not apply.”). Because DOJ and the European Commission are separate sovereign
regulators applying different sets of laws with different legal standards for liability in potentially
different geographic markets, their interests are nowhere near “identical.”
Topic 39: Your market share calculations as alleged in the Complaint for the
alleged publisher ad server market, ad exchange alleged market, and alleged
market for advertiser ad networks for open web Display Advertising.
In antitrust litigation, “definition of the relevant geographic and product market may be
critical, and it may determine the existence of market power requisite to prove liability and may
also determine the scope of relevant evidence.” Annotated Manual for Complex Litigation § 30.1,
at 521 (4th ed. 2023). Determining the relevant markets and the alleged market shares within each
relevant market is a fact-intensive inquiry involving “factual question[s],” McWane, Inc. v. FTC,
783 F.3d 814, 825 (11th Cir. 2015), rather than questions of law. Courts thus do not force
defendants to wait until expert reports are exchanged, but instead regularly allow Rule 30(b)(6)
testimony on the facts on which a plaintiff based its market-share allegations. See Lenox MacLaren
Surgical Corp. v. Medtronic, Inc., 2015 WL 3635422, at *2 (D. Colo. June 11, 2015) (Rule
30(b)(6) deposition of plaintiff ordered to “identify with specificity the facts that support its market
control/share claims”); see also Balt. Aircoil Co. v. SPX Cooling Techs. Inc., 2016 WL 4426681,
at *21 (D. Md. Aug. 22, 2016) (plaintiff provided Rule 30(b)(6) designee “on the topic of market
share,” including the sources behind its ‘market share assumptions’”); All Star Carts & Vehicles,
Inc. v. BFI Can. Income Fund, 887 F. Supp. 2d 448, 456-57 (E.D.N.Y. 2012) (plaintiff provided
Rule 30(b)(6) designee “to substantiate [its] contentions as to market share[s]” and identify the
factual sources of alleged market shares).
The Court should do the same here. Plaintiffs have alleged three separate, intricately defined
product markets, see Am. Compl. ¶¶ 282-289 (publisher ad servers), 290-296 (ad exchanges), 297303 (advertiser ad networks), and two alternative geographic markets: nationwide and worldwide, Page 12 PageID#
id. ¶¶ 280-281. Plaintiffs allege that Google’s market share in one of the alleged relevant markets
is as much as 90%. Id. ¶ 285. Google disagrees: it contends that the alleged relevant markets do
not reflect “commercial realities,” United States v. Grinnell Corp., 384 U.S. 563, 572 (1966), but
were instead contrived to target Google. This factual dispute is at the center of the case.
Google also served written interrogatories on the United States seeking to understand the
basis for the market share allegations in the Complaint. Ex. A (Interrogatory Nos. 18, 19, 20). To
date, the United States has not provided a complete answer to these interrogatories, saying that
pre-complaint investigatory materials support their calculations. That answer does not comply
with the United States’ obligations under the Federal Rules of Civil Procedure.
Given the detailed factual inquiries involved in market definition, which is a necessary
predicate for determining market share, Google must be able to gather information concerning the
United States’ evidentiary basis for its market share allegations. As in Lenox, Baltimore Aircoil,
and All Star Carts, Rule 30(b)(6) designee testimony on such matters is proper. Alternatively,
Google would accept supplemental written responses to its Interrogatory Nos. 18, 19, and 20 that
actually answer the questions as posed.
Topic 40: The equitable remedies You seek, including any coordination or
communications between You and the European Commission regarding such
remedies.
Rule 26(b)(1) allows discovery relevant to “any party’s claim.” That provision allows for
discovery of damages and other remedies, just “as it [allows discovery] of other facts essential” to
the case. Sinclair Refin. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 693 (1933). The
United States seeks damages and equitable relief, such as divestiture of certain Google services.
Discovery about potential equitable remedies is therefore relevant and may be pursued. And the
testimony Google seeks on this topic—involving communications with foreign regulators—is not
privileged. See supra pp. 10-11. Page 13 PageID#
On Plaintiffs’ motion, the Court has ordered that “additional discovery as to equitable
remedies” may be sought following a finding of liability. ECF No. 283 (emphasis added). Given
that order, Google anticipates the parties will agree that deposition testimony on equitable
remedies sought by either party will be deferred until later, if necessary, following findings of
liability.
III.
THE SHELTON RULE DOES NOT APPLY
In Shelton v. American Motors Corp., the Eighth Circuit held that the deposition of opposing
counsel should be “limited to where the party seeking to take the deposition has shown that (1) no
other means exist to obtain the information than to depose opposing counsel; (2) the information
sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the
case.” 805 F.2d 1323, 1327 (8th Cir. 1986) (citation omitted). This is a rigid, preemptive rule:
opposing counsel or in-house counsel who is assisting with trial shall not be deposed unless the
three-part showing has been made.
The United States errs in seeking protection under Shelton, for two reasons. First, the Fourth
Circuit has not adopted the Shelton rule. Nor has Shelton been universally adopted. In fact, the
Second Circuit has rejected the rigid Shelton presumption in favor of “a flexible approach.” In re
Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71-72 (2d Cir. 2003). And while other Judges
in this District and elsewhere have applied Shelton in specific circumstances, many courts have
expressly declined to apply that rigid, preemptive rule in the circumstances of the case before them.
See, e.g., id.; Qad.inc. v. ALN Assocs., 132 F.R.D. 492, 495 (N.D. Ill. 1990); Pain Ctr. of SE Ind.,
LLC v. Origin Healthcare Sols., LLC, 2015 WL 3631692, at *2 (S.D. Ind. June 10, 2015) (citing
cases). These courts found the Shelton rule is overly protective of counsel and unnecessarily
suppresses facts. Second, the Shelton rule is particularly inappropriate where the noticed topics do Page 14 PageID#
not seek litigation strategy, but instead seek facts obtained in a pre-litigation investigatory phase.
See Buyer’s Direct Inc. v. Belk, Inc., 2012 WL 3278928, at *3 (E.D.N.C. Aug. 10, 2012) (finding
Shelton inapplicable where deposition sought non-privileged facts known to counsel because
Shelton “is applicable only where . . . the subject matter of the deposition concerns litigation
strategy” (emphasis added)).
Rejecting Shelton’s blanket proscription for a more balanced approach makes perfect sense
here. As courts have recognized, prospectively barring an attorney deposition “on the ground that
any information sought is subject to the attorney-client privilege” is “improper and premature.”
Scovill Mfg. Co. v. Sunbeam Corp., 61 F.R.D. 598, 603 (D. Del. 1973).
Indeed, “[t]he
circumstances are rare which justify an order that a deposition not be taken at all, and the existence
of privilege is not one of those circumstances.” Id. Rather than precluding the deposition, courts
allow the deposition to go forward and instruct the defending attorneys to “object to questions
[they] consider[] improper and advise [the deponent] not to answer.” Id; accord Smith v. City of
Greensboro, 2021 WL 10280229, at *4 (M.D.N.C. Aug. 2, 2021) (recognizing that any “danger
of invasion of . . . privilege . . . can be sufficiently managed via objection during questioning” and
was remote when deponent was “an experienced attorney,” who “undoubtedly understands the
reach of the attorney-client privilege and is unlikely to inadvertently disclose privileged
information or litigation strategy”).6 Privilege objections should be made in response to individual
questions, not preemptively in a vacuum.
See also, e.g., Appvion, Inc. v. P.H. Glatfelter Co., 2016 WL 1261090, at *1 (E.D. Wis. 2016)
(“To the extent some of the information sought would be privileged, the attorney being deposed
(themselves also represented by counsel) will be equipped to navigate those waters.”); Kaiser v.
Mut. Life Ins. Co. of N.Y., 161 F.R.D. 378, 380 (S.D. Ind. 1994) (“[D]eponents are expected . . . to
assert their objections during the deposition and to allow questioning parties to develop
circumstantial facts in order to explore the propriety of the assertion of the privilege, immunity, or
other objection.”); Cooper v. Welch Foods, Inc., 105 F.R.D. 4, 6 (W.D.N.Y. 1984) (finding that
deposition of attorney should be taken and privileges should be asserted as appropriate at the Page 15 PageID#
DOJ cannot avoid that reality by claiming that all questions on certain topics would
necessarily seek opinion work product, while all questions on other topics would necessarily seek
fact work product. See Mot. 11-14. That assertion is not even speculation; it is simply wrong.
See supra pp. 8-12 (explaining how the topics seek non-privileged facts). Yet even if some
questions would elicit protected information, the proper time to address that is at the deposition—
a fact DOJ knows full well given that it deposed a Google witness on work-product-related topics
to effectively elicit a “verbal privilege log,” see ECF No. 245-2, Ex. B at 136:24 (Rule 30(b)(6)
Dep. of Alphabet), with counsel for Google raising privilege objections on a question-by-question
basis if a question sought protected information.
As in Scovill, Smith, and other cases, the Court should not wield a meat cleaver now to bar
the deposition. Google has no intention of attempting to elicit privileged information in this
deposition, and will take great care to elicit only facts. The Court should thus require DOJ to wield
a scalpel at the deposition to object to any question it reasonably believes calls for privileged
information, despite Google’s best efforts not to pose such questions.
CONCLUSION
For these reasons, the Court should deny the United States’ motion for a protective order. In
the alternative, the Court should allow Google to pursue this relevant discovery through methods
other than deposition testimony, such as via written responses, including supplementation of
existing discovery responses.
deposition itself); In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 429, 437-38 (E.D. Pa.
1981) (“If the questions to be asked of Mr. Griffin delve into privileged areas then his recourse
will be to object and refuse to answer. Such an objection and refusal to answer should of course
be predicated upon a sufficient demonstration that the matter inquired into is privileged. . . . In any
event, the Court cannot rule in a vacuum, prior to the deposition, that every question to be asked
will seek to elicit privileged information.”). Page 16 PageID#
Dated: August 30,
Respectfully submitted,
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
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Counsel for Defendant Google LLC
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Case 1:23-cv-00108-LMB-JFA Document 359 Filed 08/30/23 Page 1 of 16 PageID# 5375
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
- against -
Civil Action No. 1:23-cv-00108
(LMB) (JFA)
GOOGLE LLC,
Defendant.
GOOGLE LLC’S BRIEF IN OPPOSITION TO
THE UNITED STATES’ MOTION FOR A PROTECTIVE ORDER
Plaintiff United States seeks to preclude Google LLC (“Google”) from “conducting a Rule
30(b)(6) deposition of a representative of the Department of Justice, Antitrust Division in this
matter.” United States’ Mem. ISO Mot. for a Protective Order 15, ECF No. 322. DOJ cites the
“Shelton rule” to argue that Google is improperly trying to depose the United States’ “litigation
counsel.” Mot. 1. That is wrong, and ignores the simple principle that when the government
brings an enforcement action, it too is subject to a Rule 30(b)(6) deposition. Google served its
Rule 30(b)(6) notice on the United States seeking to obtain facts about the government’s
investigatory meetings and communications, which ostensibly formed part of the factual basis for
Plaintiffs’ case. Such facts, discoverable and relevant on that basis alone, are also likely to reveal
material bearing heavily on any or all of five pivotal issues in this case, including (i) the effects of
Google’s conduct on consumers; (ii) Google’s legitimate business justifications for its alleged
conduct; (iii) witness credibility and bias; (iv) the definition of the relevant markets at issue and
Google’s market share in those markets; and (v) the remedies sought by the United States. DOJ
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is inappropriately and prematurely attempting to avoid responding to factual discovery on these
pivotal issues.
At bottom, this civil antitrust enforcement action is governed by the discovery rules that apply
to all civil litigation, including cases where the United States is a litigant. Because the information
sought is relevant and non-privileged, the Court should allow Google to depose DOJ about the
factual underpinnings of this lawsuit or to obtain equivalent discovery by another feasible method.
BACKGROUND
Google’s Rule 30(b)(6) Notice to the United States: Google served a Rule 30(b)(6) notice
on the United States with 41 topics directed to a variety of relevant factual issues. See ECF No.
321-1. The United States did not serve objections to that notice, but did engage in extensive meetand-confer negotiations with Google on refining, defining, and narrowing the topics. The topics
fall into three broad categories:
First, numerous topics are directed to the eight “Federal Agency Advertisers” (“FAAs”), and
are not at issue in this motion.1 These topics have been refined and narrowed through the parties’
continuing meet-and-confer negotiations, and a Rule 30(b)(6) deposition of the Centers for
Medicare and Medicaid Services went forward on August 25 without issue.
Second, three topics are directed to affirmative defenses concerning the role of Assistant
Attorney General Jonathan Kanter in conceiving and initiating this action: Topics 31, 37, and 38.
Those topics are the subject of another motion by Plaintiffs, which will be heard by the District
Judge on September 8. See ECF Nos. 317 & 319. That motion seeks a merits ruling on two of
1
These topics largely focus on whether each FAA satisfies the “direct purchaser” rule of federal
antitrust law. See, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 745-48 (1977) (only “direct
purchasers” have standing to sue); Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006)
(“Those who purchase indirectly or through intermediaries are barred from recovering for antitrust
injuries.”).
2
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Google’s affirmative defenses, which purportedly would moot the need for that discovery. In the
alternative, Plaintiffs seek a protective order on Topics 31, 37, and 38, as well as other pending
discovery. See ECF No. 318 at 8 n.13 & 22-27. Because those topics are already at issue before
the District Judge, this Court need not—and should not—consider them as part of this motion.
Third, in addition to Topics 31 and 37-38, Topics 25, 28-29, 33-36, and 39-41 were also
directed to the United States’ Antitrust Division at the Department of Justice. Of these, Google
has already dropped Topics 28, 35, and 41 during the meet-and-confer process, and now agrees to
also withdraw Topic 25. That leaves only six topics at issue in this motion:
Topic 29: Your involvement and communications with any third parties concerning
the Investigation and/or this Action.
Topic 33: Your responses to Google’s Interrogatories.
Topic 34: Your responses to Google’s Requests for Admission.
Topic 36: All communications, including written, oral, face-to-face, telephonic,
videoconference, or otherwise with any representative of the European
Commission concerning the Investigation or this Action.
Topic 39: Your market share calculations as alleged in the Complaint for the
alleged publisher ad server market, ad exchange alleged market, and alleged market
for advertiser ad networks for open web Display Advertising.
Topic 40: The equitable remedies You seek, including any coordination or
communications between You and the European Commission regarding such
remedies.
Meet-and-Confer Negotiations: After Google served its Rule 30(b)(6) notice on the United
States on July 20, the parties engaged in several meet-and-confer negotiations and exchanged
letters. Negotiations progressed, but were complicated after the United States served its expansive
Rule 30(b)(6) notice upon Google on August 9—almost three weeks after Google served its Rule
30(b)(6) notice on the United States. See ECF No. 312-1.
On August 18—as the parties were negotiating over their dueling Rule 30(b)(6) notices, and
after they had already discussed agreement to a standstill on motion practice concerning the
3
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parties’ respective notices—DOJ abruptly informed Google that it would instead file a motion for
judgment on the pleadings or to strike certain affirmative defenses to which those topics pertained,
or move for a protective order. Based on DOJ’s changed position, Google understood there to be
an impasse in what had seemingly been productive negotiations, and both sides filed motions on
August 18. Then, on August 22, DOJ went a step further and filed this second motion for a
protective order, which overlaps in part with its earlier-filed motion for judgment on the pleadings
or for a protective order.
Since those motions have been filed, the parties have resumed their meet-and-confer
discussions in an effort to narrow areas of disagreement with respect to their Rule 30(b)(6) notices.
While the parties have made progress on other topics, DOJ continues to steadfastly refuse to
present a witness to testify on behalf of the United States on these topics, absent a court order.
ARGUMENT
The Court should deny the United States’ motion for three reasons. First, although this is a
civil antitrust enforcement action, the discovery rules apply to the United States as to any other
private litigant. No exception or limitation in the Federal Rules of Civil Procedure or the Local
Civil Rules gives the United States a free pass under Rule 30(b)(6) or forecloses discovery into the
topics now at issue. And case law recognizes that a defendant in an enforcement action has a right
to a Rule 30(b)(6) deposition of the enforcer, even if the designee is an attorney. Second, the topics
at issue seek relevant discovery. Third, the United States’ arguments about privileged and
protected information are conclusory, overblown, and premature—and certainly do not justify a
blanket protective order precluding deposition discovery. Rather, assertions of privilege should
be handled on a question-by-question basis.
4
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Alternatively, if the Court is inclined to grant any part of the United States’ motion, it should
instead enter an order under Rule 26(c)(1)(C) “prescribing a discovery method other than the one
selected” by Google for certain topics, which may be answered by written responses or satisfied
by further document productions, instead of through designee testimony. Indeed, Google sought
to obtain written interrogatory responses on many of the at-issue topics, but to date, DOJ has not
provided complete answers. Simply granting the United States’ motion outright, however, would
unjustly preclude Google from pursuing relevant factual discovery from the DOJ on these topics
by any means.
I.
GOVERNING PRINCIPLES OF PROCEDURAL LAW SUPPORT DENYING
THE UNITED STATES’ MOTION.
Despite the United States’ rhetoric about “harassing” discovery practices, Google is using
ordinary discovery tools in the ordinary way. Generally, the parties in a civil action “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
Fed. R. Civ. P. 26(b)(1). The parties are free to use the discovery tools in “any sequence” that
suits the needs of the case. Fed. R. Civ. P. 26(d)(3)(A). Subject to the limitations in the Federal
Rules and Local Civil Rules, the parties may also choose which discovery tools to use and how to
use them, unless the Court “determines that: (i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). One of those routine discovery
tools is deposition under Rule 30(b)(6), which allows a party to serve a deposition notice on an
organization, including a governmental litigant, to provide deposition testimony on specific topics
stated in the notice.
5
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These rules apply to this civil antitrust enforcement action as they do to any other civil
action. “The government as a litigant is, of course, subject to the rules of discovery”—including
in civil antitrust enforcement actions. United States v. Procter & Gamble Co., 356 U.S. 677, 681
(1958) (civil antitrust enforcement action); accord, e.g., Doe v. Mast, 2023 WL 4492466, at *4
(W.D. Va. July 12, 2023) (quoting Procter & Gamble’s statement of this rule). Thus, in civil
antitrust enforcement actions, as in any other civil action, the “instruments of discovery serve a
useful purpose [of making] a trial less a game of blindman’s buff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable extent.” Procter & Gamble, 356 U.S. at
682 (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The United States’ requested relief
would thwart this “useful purpose.”
In suggesting that Google should resort to third-party discovery instead of using the
ordinary tools of party discovery, Mot. 14, the United States flips the process on its head. For
starters, “if the party seeking discovery can obtain the information from another party in the
litigation, it must do so rather than burden a nonparty.” Sziber v. Dominion Energy, Inc., 2021
WL 6332784, at *2 (E.D. Va. Sept. 14, 2021).2 That principle applies even more forcefully here:
it would be more efficient and less burdensome in the aggregate for DOJ, the party common to
communications with over 300 industry participants, to provide a single set of testimony about
those meetings than it would for Google to seek similar discovery from over 300 nonparties. And
even if Google could (or already had) efficiently gathered such information from nonparties, this
does not justify protection from Rule 30(b)(6), because Rule 30(b)(6) testimony is uniquely
“designed to bind the corporation or agency.” SEC v. Merkin, 283 F.R.D. 689, 697 (S.D. Fla.)
2
See also, e.g., Sherrill v. DIO Transp., Inc., 317 F.R.D. 609, 615 (D.S.C. 2016) (“‘If documents
are available from a party, it has been thought preferable to have them obtained pursuant to Rule
34 rather than subpoenaing them from a nonparty witness.’” (quoting 8A Charles Alan Wright, et
al., Federal Practice and Procedure § 2204 at 365 (2d ed. 1994))).
6
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(citing New Jersey v. Sprint Corp., 2010 WL 610671, at *2-3 (D. Kan. Feb. 19, 2010)), objections
overruled, 283 F.R.D. 699 (S.D. Fla. 2012).
Moreover, because the United States has voluntarily filed a civil enforcement action, it is
subject to a Rule 30(b)(6) designee deposition on factual issues in its capacity as an investigator—
even if the designee will be an attorney. That follows from the rule that when an agency
“voluntarily br[ings] an action against [a] [d]efendant,” that defendant “is entitled to broad
discovery to understand and prepare a defense against [the agency’s] allegations.” SEC v.
McCabe, 2015 WL 2452937, at *4 (D. Utah May 22, 2015).
In providing that broad discovery, the agency must comply with Rule 30(b)(6), which
“expressly applies to a government agency and provides neither an exemption from Rule 30(b)(6)
nor special consideration concerning the scope of discovery, especially when [the agency]
voluntarily initiates an action.” SEC v. Kramer, 778 F. Supp. 2d 1320, 1327 (M.D. Fla. 2011)
(quotation marks omitted); Merkin, 283 F.R.D. at 694 (“[J]ust like any party litigating in federal
court, Merkin has the right to take a [Rule] 30(b)(6) deposition from the SEC.”). Applying that
principle, courts reject government efforts to “defeat the provisions of [Rule] 30(b)(6)” merely by
claiming that the agency’s designee will be someone “with an ‘esq.’ after his name.” McCabe,
2015 WL 2452937, at *4. Courts thus require government agencies to designate Rule 30(b)(6)
deponents to testify “about non-privileged, pre-litigation factual matters,” rather than “litigation
strategy.” United States v. Newman, 531 F. Supp. 3d 181, 192-93 (D.D.C. 2021) (quotation marks
omitted); see also EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2010 WL 2572809, at
*5 (D. Md. June 22, 2010) (observing that courts allow Rule 30(b)(6) testimony by agency
designees “as to the facts the investigator learned during her investigation,” and specifically
7
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require deponents to answer questions concerning interviews conducted during the agency’s
investigation).3
The plain rule that “the work product doctrine does not extend to protect underlying facts,
[or] the persons from whom that party has learned such facts,” Gualtieri v. TD Bank, Nat’l Ass’n,
2011 WL 13302505, at *2 (M.D. Fla. Mar. 10, 2011), applies equally to the government as to any
other civil plaintiff. The Court should accordingly rebuff the United States’ effort to sidestep the
normal discovery process.
II.
THE TOPICS ARE RELEVANT AND TYPICAL OF RULE 30(b)(6)
DISCOVERY.
Each of the topics at issue seeks relevant information. The United States does not attempt
to show otherwise. Instead, the United States makes only a process objection (that “litigation
counsel” should not be deposed) and a premature and overbroad privilege objection (that all
questions on all topics will seek work product). Neither objection warrants a protective order as
to any testimony of these topics.
Topic 29: Your involvement and communications with any third parties concerning
the Investigation and/or this Action.
Google seeks information about non-privileged, pre-litigation factual matters and the DOJ’s
communications with nonparties about this litigation. In a civil enforcement action, pre-litigation
communications and interviews with third parties who are actual or potential witnesses are
permissible subjects for discovery and are a proper topic for a Rule 30(b)(6) deposition. See supra
pp. 6-8; see also EEOC v. Jewel Food Stores, Inc., 231 F.R.D. 343, 346 (N.D. Ill. 2005)
3
In McCormick & Schmick’s, the court ultimately granted the EEOC’s motion for a protective
order because the EEOC had already produced its investigative file, “including all witness
statements contained therein.” 2010 WL 2572809, at *6. Here, the vast majority of
communications with third parties produced as part of DOJ’s investigative materials are basic
logistical/scheduling communications, and do not contain the substance of the third parties’
statements to DOJ.
8
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(compelling answers to interrogatories seeking the identities of persons who had made statements
relating to claims in the case and detailing the substance of information those third parties
possessed, because such “factual information that a lawyer obtains when investigating a case” does
not constitute work product). Thus, there are no procedural or substantive grounds for precluding
Google from obtaining testimony through a Rule 30(b)(6) deposition on this topic.
Topic 33: Your responses to Google’s Interrogatories.
Google seeks testimony about the factual basis for, or further explanation of, certain
interrogatory answers served by DOJ. A Rule 30(b)(6) deposition may be sought to follow up on
a party’s interrogatory answers. See FDIC v. Brudnicki, 2013 WL 5814494, at *3 (N.D. Fla. Oct.
29, 2013). Google is willing to narrow this topic to Interrogatories No. 3 (“Identify all persons
other than Google with whom You communicated as part of the Investigation, including the
person’s title, employer or affiliation, and the date(s) of Your communication(s)”) and No. 21
(“From the start of Your Investigation until August 25, 2023, Identify each and every
Communication between the Department of Justice on the one hand, and any Potential Witness or
the European Commission on the other hand, related to the subject matters of the Investigation or
of the Action.”).4 Like Topic 29, these interrogatories and the follow-up Rule 30(b)(6) deposition
seek permissible fact discovery.
Topic 34: Your responses to Google’s Requests for Admission.
On behalf of all FAAs, DOJ served one-size-fits-all responses to Google’s Requests for
Admission (“RFAs”). The first set of RFAs were aimed at ascertaining whether the FAAs were
direct purchasers entitled to seek antitrust damages. See ECF Nos. 291 & 292 (Google’s motion
4
Google expects to reach an agreement with the United States whereby both parties either (i)
withdraw their respective topics concerning prior responses to discovery requests or (ii) accept
written responses in lieu of Rule 30(b)(6) designee testimony on such topics.
9
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to compel RFA responses); supra p. 2 & n.1 (discussing direct-purchaser rule). Based on the
response to the first set of RFAs, Google served a second set of RFAs, the responses to which are
due September 6, 2023. As with DOJ’s interrogatory answers, Google seeks to follow up on these
issues through a Rule 30(b)(6) deposition, which appears to be the most efficient method to clarify
the United States’ admissions and bind the United States to them.5
Topic 36: All communications, including written, oral, face-to-face, telephonic,
videoconference, or otherwise with any representative of the European
Commission concerning the Investigation or this Action.
DOJ’s communications with foreign enforcement agencies are not privileged. Ctr. for Int’l
Env’t L. v. Off. of U.S. Trade Rep., 237 F. Supp. 2d 17, 23-31 (D.D.C. 2002) (communications
between United States agency and foreign government are not protected by FOIA Exemption 5,
which includes legal privileges). Further, by communicating with or disclosing materials to the
European Commission, DOJ has waived any privilege over such communications and materials.
DOJ recognizes as much, having already produced email communications between itself and the
EC. Although both DOJ and the European Commission were investigating Google’s ad tech
business at the time of the communications or disclosures, a shared target is not a sufficient basis
to warrant common-interest protection: “[t]he common interest rule does not apply merely because
one party has an interest in a litigation involving another party” or because there exists a “common
problem.” Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013). Instead, the interests
of the parties must be “identical.” Glynn v. EDO Corp., 2010 WL 3294347, at *7 (D. Md. Aug.
20, 2010); see also Bank of Am. N.A. v. Terra Nova Ins. Co., 211 F. Supp. 2d 493, 496-98
(S.D.N.Y. 2002) (“Because the interests of the parties were not identical, the common interest
5
As with Topic 33, Google expects to reach an agreement with the United States whereby both
parties either (i) withdraw their respective topics concerning prior responses to discovery requests
or (ii) accept written responses in lieu of Rule 30(b)(6) designee testimony on such topics.
10
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doctrine does not apply.”). Because DOJ and the European Commission are separate sovereign
regulators applying different sets of laws with different legal standards for liability in potentially
different geographic markets, their interests are nowhere near “identical.”
Topic 39: Your market share calculations as alleged in the Complaint for the
alleged publisher ad server market, ad exchange alleged market, and alleged
market for advertiser ad networks for open web Display Advertising.
In antitrust litigation, “definition of the relevant geographic and product market may be
critical, and it may determine the existence of market power requisite to prove liability and may
also determine the scope of relevant evidence.” Annotated Manual for Complex Litigation § 30.1,
at 521 (4th ed. 2023). Determining the relevant markets and the alleged market shares within each
relevant market is a fact-intensive inquiry involving “factual question[s],” McWane, Inc. v. FTC,
783 F.3d 814, 825 (11th Cir. 2015), rather than questions of law. Courts thus do not force
defendants to wait until expert reports are exchanged, but instead regularly allow Rule 30(b)(6)
testimony on the facts on which a plaintiff based its market-share allegations. See Lenox MacLaren
Surgical Corp. v. Medtronic, Inc., 2015 WL 3635422, at *2 (D. Colo. June 11, 2015) (Rule
30(b)(6) deposition of plaintiff ordered to “identify with specificity the facts that support its market
control/share claims”); see also Balt. Aircoil Co. v. SPX Cooling Techs. Inc., 2016 WL 4426681,
at *21 (D. Md. Aug. 22, 2016) (plaintiff provided Rule 30(b)(6) designee “on the topic of market
share,” including the sources behind its ‘market share assumptions’”); All Star Carts & Vehicles,
Inc. v. BFI Can. Income Fund, 887 F. Supp. 2d 448, 456-57 (E.D.N.Y. 2012) (plaintiff provided
Rule 30(b)(6) designee “to substantiate [its] contentions as to market share[s]” and identify the
factual sources of alleged market shares).
The Court should do the same here. Plaintiffs have alleged three separate, intricately defined
product markets, see Am. Compl. ¶¶ 282-289 (publisher ad servers), 290-296 (ad exchanges), 297303 (advertiser ad networks), and two alternative geographic markets: nationwide and worldwide,
11
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id. ¶¶ 280-281. Plaintiffs allege that Google’s market share in one of the alleged relevant markets
is as much as 90%. Id. ¶ 285. Google disagrees: it contends that the alleged relevant markets do
not reflect “commercial realities,” United States v. Grinnell Corp., 384 U.S. 563, 572 (1966), but
were instead contrived to target Google. This factual dispute is at the center of the case.
Google also served written interrogatories on the United States seeking to understand the
basis for the market share allegations in the Complaint. Ex. A (Interrogatory Nos. 18, 19, 20). To
date, the United States has not provided a complete answer to these interrogatories, saying that
pre-complaint investigatory materials support their calculations. That answer does not comply
with the United States’ obligations under the Federal Rules of Civil Procedure.
Given the detailed factual inquiries involved in market definition, which is a necessary
predicate for determining market share, Google must be able to gather information concerning the
United States’ evidentiary basis for its market share allegations. As in Lenox, Baltimore Aircoil,
and All Star Carts, Rule 30(b)(6) designee testimony on such matters is proper. Alternatively,
Google would accept supplemental written responses to its Interrogatory Nos. 18, 19, and 20 that
actually answer the questions as posed.
Topic 40: The equitable remedies You seek, including any coordination or
communications between You and the European Commission regarding such
remedies.
Rule 26(b)(1) allows discovery relevant to “any party’s claim.” That provision allows for
discovery of damages and other remedies, just “as it [allows discovery] of other facts essential” to
the case. Sinclair Refin. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 693 (1933). The
United States seeks damages and equitable relief, such as divestiture of certain Google services.
Discovery about potential equitable remedies is therefore relevant and may be pursued. And the
testimony Google seeks on this topic—involving communications with foreign regulators—is not
privileged. See supra pp. 10-11.
12
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On Plaintiffs’ motion, the Court has ordered that “additional discovery as to equitable
remedies” may be sought following a finding of liability. ECF No. 283 (emphasis added). Given
that order, Google anticipates the parties will agree that deposition testimony on equitable
remedies sought by either party will be deferred until later, if necessary, following findings of
liability.
III.
THE SHELTON RULE DOES NOT APPLY
In Shelton v. American Motors Corp., the Eighth Circuit held that the deposition of opposing
counsel should be “limited to where the party seeking to take the deposition has shown that (1) no
other means exist to obtain the information than to depose opposing counsel; (2) the information
sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the
case.” 805 F.2d 1323, 1327 (8th Cir. 1986) (citation omitted). This is a rigid, preemptive rule:
opposing counsel or in-house counsel who is assisting with trial shall not be deposed unless the
three-part showing has been made.
The United States errs in seeking protection under Shelton, for two reasons. First, the Fourth
Circuit has not adopted the Shelton rule. Nor has Shelton been universally adopted. In fact, the
Second Circuit has rejected the rigid Shelton presumption in favor of “a flexible approach.” In re
Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71-72 (2d Cir. 2003). And while other Judges
in this District and elsewhere have applied Shelton in specific circumstances, many courts have
expressly declined to apply that rigid, preemptive rule in the circumstances of the case before them.
See, e.g., id.; Qad.inc. v. ALN Assocs., 132 F.R.D. 492, 495 (N.D. Ill. 1990); Pain Ctr. of SE Ind.,
LLC v. Origin Healthcare Sols., LLC, 2015 WL 3631692, at *2 (S.D. Ind. June 10, 2015) (citing
cases). These courts found the Shelton rule is overly protective of counsel and unnecessarily
suppresses facts. Second, the Shelton rule is particularly inappropriate where the noticed topics do
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not seek litigation strategy, but instead seek facts obtained in a pre-litigation investigatory phase.
See Buyer’s Direct Inc. v. Belk, Inc., 2012 WL 3278928, at *3 (E.D.N.C. Aug. 10, 2012) (finding
Shelton inapplicable where deposition sought non-privileged facts known to counsel because
Shelton “is applicable only where . . . the subject matter of the deposition concerns litigation
strategy” (emphasis added)).
Rejecting Shelton’s blanket proscription for a more balanced approach makes perfect sense
here. As courts have recognized, prospectively barring an attorney deposition “on the ground that
any information sought is subject to the attorney-client privilege” is “improper and premature.”
Scovill Mfg. Co. v. Sunbeam Corp., 61 F.R.D. 598, 603 (D. Del. 1973).
Indeed, “[t]he
circumstances are rare which justify an order that a deposition not be taken at all, and the existence
of privilege is not one of those circumstances.” Id. Rather than precluding the deposition, courts
allow the deposition to go forward and instruct the defending attorneys to “object to questions
[they] consider[] improper and advise [the deponent] not to answer.” Id; accord Smith v. City of
Greensboro, 2021 WL 10280229, at *4 (M.D.N.C. Aug. 2, 2021) (recognizing that any “danger
of invasion of . . . privilege . . . can be sufficiently managed via objection during questioning” and
was remote when deponent was “an experienced attorney,” who “undoubtedly understands the
reach of the attorney-client privilege and is unlikely to inadvertently disclose privileged
information or litigation strategy”).6 Privilege objections should be made in response to individual
questions, not preemptively in a vacuum.
6
See also, e.g., Appvion, Inc. v. P.H. Glatfelter Co., 2016 WL 1261090, at *1 (E.D. Wis. 2016)
(“To the extent some of the information sought would be privileged, the attorney being deposed
(themselves also represented by counsel) will be equipped to navigate those waters.”); Kaiser v.
Mut. Life Ins. Co. of N.Y., 161 F.R.D. 378, 380 (S.D. Ind. 1994) (“[D]eponents are expected . . . to
assert their objections during the deposition and to allow questioning parties to develop
circumstantial facts in order to explore the propriety of the assertion of the privilege, immunity, or
other objection.”); Cooper v. Welch Foods, Inc., 105 F.R.D. 4, 6 (W.D.N.Y. 1984) (finding that
deposition of attorney should be taken and privileges should be asserted as appropriate at the
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DOJ cannot avoid that reality by claiming that all questions on certain topics would
necessarily seek opinion work product, while all questions on other topics would necessarily seek
fact work product. See Mot. 11-14. That assertion is not even speculation; it is simply wrong.
See supra pp. 8-12 (explaining how the topics seek non-privileged facts). Yet even if some
questions would elicit protected information, the proper time to address that is at the deposition—
a fact DOJ knows full well given that it deposed a Google witness on work-product-related topics
to effectively elicit a “verbal privilege log,” see ECF No. 245-2, Ex. B at 136:24 (Rule 30(b)(6)
Dep. of Alphabet), with counsel for Google raising privilege objections on a question-by-question
basis if a question sought protected information.
As in Scovill, Smith, and other cases, the Court should not wield a meat cleaver now to bar
the deposition. Google has no intention of attempting to elicit privileged information in this
deposition, and will take great care to elicit only facts. The Court should thus require DOJ to wield
a scalpel at the deposition to object to any question it reasonably believes calls for privileged
information, despite Google’s best efforts not to pose such questions.
CONCLUSION
For these reasons, the Court should deny the United States’ motion for a protective order. In
the alternative, the Court should allow Google to pursue this relevant discovery through methods
other than deposition testimony, such as via written responses, including supplementation of
existing discovery responses.
deposition itself); In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 429, 437-38 (E.D. Pa.
1981) (“If the questions to be asked of Mr. Griffin delve into privileged areas then his recourse
will be to object and refuse to answer. Such an objection and refusal to answer should of course
be predicated upon a sufficient demonstration that the matter inquired into is privileged. . . . In any
event, the Court cannot rule in a vacuum, prior to the deposition, that every question to be asked
will seek to elicit privileged information.”).
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Dated: August 30, 2023
Respectfully submitted,
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite 501
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
craig.reilly@ccreillylaw.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Daniel Bitton (pro hac vice)
Erica Spevack (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP PAUL, WEISS, RIFKIND, WHARTON &
55 2nd Street
GARRISON LLP
San Francisco, CA 94105
2001 K Street, NW
Telephone: (415) 490-2000
Washington, DC 20006-1047
Facsimile: (415) 490-2001
Telephone: (202) 223-7300
dbitton@axinn.com
Facsimile (202) 223-7420
kdunn@paulweiss.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER LLP Meredith Dearborn (pro hac vice)
1901 L Street, NW
PAUL, WEISS, RIFKIND, WHARTON &
Washington, DC 20036
GARRISON LLP
Telephone: (202) 912-4700
535 Mission Street, 24th Floor
Facsimile: (202) 912-4701
San Francisco, CA 94105
bjustus@axinn.com
Telephone: (646) 432-5100
Facsimile: (202) 330-5908
mdearnborn@paulweiss.com
Counsel for Defendant Google LLC
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