NOTICE by Google LLC re [362] Order on Motion to Seal NOTICE OF FILING UNREDACTED AND UNSEALED DOCUMENTS (Attachments: # (1) Supplement UNREDACTED Reply Brief, # (2) Exhibit 19 UNSEALED, # (3) Exhibit 20 UNSEALED, # (4) Exhibit 22 UNSEALED)(Reilly, Craig)
Page 1 PageID#
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
v.
No. 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
GOOGLE LLC’S REPLY IN SUPPORT OF ITS
MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND TESTIMONY WRONGLY WITHHELD AS PRIVILEGED
Plaintiff’s position in this case would establish a sweeping application of
privilege–attorney-client, work product, and deliberative process–never before applied in any
case, and entirely at odds with the Fourth Circuit’s prescription that privilege “must be narrowly
construed and recognized only to the very limited extent that excluding relevant evidence has a
public good transcending the normally predominant principle of utilizing all rational means for
ascertaining truth.” In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003). The Plaintiff
proffers this unprecedented application of privilege because the facts withheld and clawed back
imperil their alleged market definition–and request for damages–in this case. Plaintiff has not
met its burden and Google is allowed to discover these facts.
First, Plaintiff’s attorney-client privilege claim depends on the Department of Justice
having an attorney-client relationship with every employee in every federal agency. But that is
not the law, nor does it make any sense. While the Department of Justice can represent federal
agencies, that alone does not establish an attorney-client relationship. To establish such a
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 2 PageID#
relationship, the normal rules for attorney-client privilege apply. At the time lawyers from the
Antitrust Division of the Department of Justice (“ATR”) reached out to employees at federal
agencies, no attorney-client relationship had been formed.
Nor were the Federal Agency
Advertiser (“FAA”) employees seeking legal advice in responding to ATR’s outreach.
Accordingly, those communications are discoverable.
Second, Plaintiff does not dispute that it is required to produce to Google its investigation
file, or that the documents it is withholding on the basis of privilege and work product are part of
that file. Opp. 3. In withholding these investigatory documents, which reflect the facts and
information provided by key industry participants–federal agencies who are buyers of
advertising and whose knowledge of the industry and how ad buying works are directly relevant
to market definition–Plaintiff is denying Google access to key factual evidence. Google is
entitled to the full investigatory file in order to defend itself, not just the portions that Plaintiff
selectively chooses to provide. In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493,
531-32 (S.D.N.Y. 1996) (applicable DOJ regulations enabling antitrust defendants to “obtain
CID information relevant to their defense” were “intended to afford Defendants in government
antitrust actions a full and fair opportunity to defend against such actions”); United States v.
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (under the fairness doctrine “selective disclosure” of
privileged communications “for tactical purposes waives the privilege”).
Contrary to Plaintiff’s claim that any document created by any individual “in direct
response to” an ATR attorney’s “questions” constitutes work product, Wolin Dec. ¶¶ 10, 12, 13,
14, that is not the law.
If it were, Plaintiff would be able to withhold the entirety of its
investigative file. Plaintiff does not take the position that it is entitled to do so, and has produced
communications, including communications with ATR attorneys, from its investigation with all
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 36Page 3 PageID#
third parties other than federal agencies and their ad agencies. That alone eviscerates a claim of
work product, which does not hinge on an attorney-client relationship; if communications with
some third parties are not work product (as Plaintiff concedes), communications with other third
parties are also not work product. Plaintiff’s argument is also untenable because it attempts to
insulate all FAA-related communications, including those between non-attorneys at federal
agencies and non-attorneys at ad agencies, as attorney work product even where no participant
on the communication is acting as an agent of an attorney or anticipates litigation. This is not a
close case like, for example, cases where courts consider communications with an investigator,
accountant, or PR firm directly hired by counsel expressly to assist a lawyer in litigation; here,
Plaintiff has insisted throughout this lawsuit that they “do not control” the ad agencies.
Third, the deliberative process privilege does not apply because the facts gathered in the
course of ATR’s investigation do not reflect employees’ personal views or policy-oriented
judgment, and therefore cannot hinder frank and independent discussion, a necessary
precondition for the deliberative process to apply. Tellingly, Plaintiff all but ignores a recent case
squarely on point where ATR made many of the same arguments it makes here and lost. United
States v. Booz Allen Hamilton Inc., 2022 WL 3921019 (D. Md. Aug. 31, 2022); see also Ethyl
Corp. v. U.S. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994).
Finally, the only evidence Plaintiff offers in support of its sweeping and novel privilege
claims is a self-serving attorney declaration, proffering that single attorney’s “beliefs”–rather
than any actual facts–establishing privilege. Such declaration is insufficient to meet Plaintiff’s
burden. In any event, the declaration is also directly contradicted by the sworn testimony of
FAA employees who disavow all necessary bases for Plaintiff’s privilege assertions.
Accordingly, Google respectfully requests its motion be granted.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 4 PageID#
I.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING THAT
THE DOCUMENTS AND TESTIMONY AT ISSUE ARE SUBJECT TO
ATTORNEY-CLIENT PRIVILEGE.A.
Plaintiff’s Contention that There Is at All Times an Attorney-Client
Relationship Between the Department of Justice and Every Employee at
Every Federal Agency Is Both Legally and Factually Incorrect.
Plaintiff argues that ATR’s statutory authority to bring antitrust claims on behalf of the
United States creates an attorney-client relationship with every agency within the executive
branch. Opp. 16. That is not the law. While the statutory provisions cited by Plaintiff provide
that ATR can represent a federal agency in litigation, the provisions do not establish that ATR
was representing the agencies in question at the time of the communications at issue. Cayuga
Nation v. U.S. Dep’t of Interior, 2022 WL 888178, at *8 (D.D.C. March 25, 2022) (rejecting
assertion that DOJ “is the legal representative” of federal agencies “whenever the Interest of the
United States are at issue” and denying claim of privilege because statutes providing that DOJ
“can represent” agencies in litigation “do not establish that the U.S. Attorneys were
representing” agency employees “in a legal capacity or providing privileged legal advice”).
Plaintiff has not presented any facts establishing the existence of an attorney-client
relationship with the federal agencies in question. Plaintiff advocates that a different standard for
the attorney-client privilege should apply to them. But that is not the case. Stonehill v. U.S.
Dep’t of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C. Feb. 10, 2022) (agency “must
Plaintiff’s August 7, 2023 Privilege log, Ex. 17 (excerpt showing 96 documents clawed back on
August 4, 2023 and highlighting entries over which Plaintiff has improperly asserted privilege),
asserts attorney-client privilege over 3 intra-agency communications that were clawed back on
August 4, 2023, which do not involve any lawyer from either ATR or the agency, asserting that
they are “confidential communications to counsel for United States.” Plaintiff appears to be
taking an inconsistent position given that it has only asserted attorney work product over similar
documents reflected on its August 23, 2023 privilege log–i.e., communications between Army
employees that do not involve any attorney, but were purportedly “prepared at the request of an
attorney.” Ex. 18 (Aug. 23, 2023 Privilege Log). Because the communications do not involve
counsel, Google requests that the Court find that such communications are not protected by the
attorney-client privilege. In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 5 PageID#
show” the standard for attorney-client privilege has been met). For purposes of determining
whether the privilege applies, it is the specific context of the communications that matters.
Cayuga Nation, 2022 WL 888178, at *8. Here, that context demonstrates the privilege does not
attach. FAA witnesses testified that they did not view lawyers at ATR to be their lawyers. Ex.
14 (Oliphant Dep. at 334:22-335:22) (“Q. Do you consider the lawyers for the antitrust division
to be lawyers for the census bureau? A. I do not.”); Ex. 19 (Horning Dep. at 7:11-8:23) (claiming
not to “have a personal opinion on who our counsel is” but that he has never “requested legal
advice from the Department of Justice Antitrust Division”).2 Certainly, if the FAAs who are
parties to this lawsuit do not view ATR lawyers to be their lawyers, federal agencies on whose
behalf ATR is not asserting claims would not either. In re Grand Jury Subpoena: Under Seal,
415 F.3d 333, 339 (4th Cir. 2005) (the attorney-client relationship “hinges upon the client’s belief
that he is consulting a lawyer in that capacity and his manifested intention to seek professional
legal advice”) (quoting United States v. Evans, 113 F.3d 1457, 1465 (7th Cir. 1997)). Plaintiff
has not presented any facts to meet their burden of establishing an attorney-client relationship.
In Booz Allen, a case entirely on-point which Plaintiff all but ignores, DOJ similarly
asserted attorney-client privilege protection over “the great majority of the documents,” claiming
that the NSA was its client. 2022 WL 3921019, at *3. DOJ later “changed the basis for many of
its privilege designations . . . . draw[ing] a line between the DOJ’s initial inquiries with the NSA,
where DOJ first played the role of an investigator.” Id. The court stated that this line was
“consistent” with its views on attorney-client privilege. Id. The communications at issue here,
like in Booz Allen, do not go beyond initial inquiries to agencies for the purpose of investigation.
Contrary to Plaintiff’s assertion, Google is not seeking to compel intra-agency communications
on which agency counsel appears, i.e., “communications between the FAAs’ internal counsel and
employees of those FAAs containing legal advice or requests for legal advice.” Opp. 4.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 6 PageID#
B.
The FAA and non-FAA Agencies Were Not Seeking Legal Advice.
Plaintiff’s unsolicited emails, questions, and requests for information do not reveal any
confidential information provided by the federal agencies. The Mead case cited in Plaintiff’s
brief makes clear that outreach from an attorney to a client is only privileged to the extent it
includes or “is based on confidential information provided by the client.” Mead Data Cent., Inc.
v. United States Dep’t of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977) (cited at Opp. 20); see
also Zander v. Dep’t of Justice, 885 F. Supp. 2d 1, 17 (D.D.C. 2012) (“Because it is an attorney’s
communication to his clients, the email falls within Mead Data’s additional limitation and is only
privileged if it rests on confidential information obtained from the clients. This email generally
does not rest on such information, and is hence subject to disclosure.”). Plaintiff’s claim that the
federal agencies were seeking legal advice when communicating with ATR is undermined by the
sworn testimony of the FAA witnesses. E.g., Ex. 14 (Oliphant Dep. 63:13-64:9) (“Q. And did
you ever seek the legal advice of the antitrust division with respect to any anticompetitive
conduct on the part of Google? A. No.”); Ex. 20 (Owens Dep. 88:25-89:7) (“Q. Prior to this
lawsuit, have you ever requested legal advice from the Department of Justice Antitrust Division?
A. No. Q. Prior to learning about this lawsuit, have you ever requested legal advice from the
Department of Justice Antitrust Division? A. No.”); Ex. 19 (Horning Dep. 8:2-23) (“Q. Have you
ever requested legal advice from the Department of Justice Antitrust Division?” “A. No.”).
Their testimony further demonstrates that the FAAs had no reason to seek legal advice
from ATR relating to the issues in this case, as none of them believed that Google acted
anticompetitively or caused them any harm. Ex. 14 (Oliphant Dep. at 63:5-11) (“Q. In the course
of your work as the COR for Order 15, did you ever form a view that Google was engaging in
anticompetitive conduct? A. No, I did not.”); Ex. 20 (Owens Dep. 210:22-211:4) (“Prior to the
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 7 PageID#
filing of this lawsuit in January of 2023, were you aware of any anticompetitive conduct on the
part of Google affecting Navy’s advertising?” “A. To my knowledge, No.”); Ex. 21 (Karpenko
Dep. 139:3-8) (“I was unaware of any anticompetitive conduct from Google.”); Ex. 22 (Koepke
Dep. 221:20-222:3) (“Q. Prior to having any conversation with any lawyer with respect to
Google Ads, any lawyer from the government, did you ever have any concerns that Google was
engaging in anticompetitive conduct related to display advertising? A. No.”); Ex. 19 (Horning
Dep. 17:11-18:9) (“Q. So using your definition of anticompetitive, which is in the context of
business practic[es] – practices meaning ‘not adhering to a competitive, fair practice,’ at this
time, January 5th of 2023, were you aware of any anticompetitive practices on the part of Google
affecting the Army’s advertising? A. I was not aware.”).
Rather, multiple FAA witnesses testified Google provided them with benefits. Ex. (Owens Dep. 212:11-12) (“We have found lots of value in many of the Google buys that we’ve
done.”); Ex. 21 (Karpenko Dep. 314:11-315:5) (“We have used Google because they do provide
a value for the postal services”); Ex. 22 (Koepke Dep. 116:18-117:4) (Google increased the
effectiveness of CMS’s display ads); Ex. 19 (Horning Dep. 190:3-191:11) (Google hosted an
educational event for Army marketers that was “helpful to the marketing team”).
II.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF DEMONSTRATING
THE DOCUMENTS AT ISSUE ARE PROTECTED WORK PRODUCT.
A.
Communications Between ATR and Federal Agencies Are Not Protected
Work Product.
Plaintiff concedes that the 57 documents it is withholding are from “the Antitrust
Division’s investigatory file.” Opp. 3. Plaintiff has produced the rest of its investigatory file,
including the same kinds of communications as those being withheld here with ATR
attorneys–communications with industry participants about the case. But the same work product
legal standard applies whether the industry participant is a federal agency or not. By Plaintiff’s
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 8 PageID#
logic, it could have, and should have, asserted work product over communications with every
other third party that “were about this case.” Opp. 7. Plaintiff did not because Google is entitled
to facts within ATR’s investigatory file–facts that are necessary for Google to adequately defend
itself.3 Plaintiff’s concession that communications with non-FAA third parties are not work
product and discoverable is fatal to its claim that FAA-related communications are work product.
Moreover, fundamental fairness dictates that all communications in the investigatory file be
produced so Google is on a level playing field with Plaintiff. Jones, 696 F.2d at 1072 (under
fairness doctrine “selective disclosure” of privileged communications “for tactical purposes
waives the privilege”); Williams v. Big Picture Loans, LLC, 2019 1983048, at *10 (E.D. Va. May
3, 2019) (“Selective disclosure occurs . . . when a party reveals one beneficial communication
but fails to reveal another, less helpful, communication on the same matter.”).
An illustration of Plaintiff’s false dichotomy is its tortured attempt to distinguish between
OIG and DOJ communications with USPS witness Mr. Karpenko. At his deposition, Plaintiff’s
counsel took the position that fact-finding communications between ATR and USPS employees
were privileged, but the same fact-finding inquiries between OIG lawyers and USPS employees
were not: “So there were two separate requests that the witness had. There’s a request from
OIG, which we are not claiming privilege over, but there is also a request from DOJ, and that–for
that we are claiming privilege because the–when he came out and when he did work on–culled
See H.R. Rep. No. 94-1343, at 15 (1976) (legislative history to amendment to Antitrust Civil
Process Act: “if a civil action based on the CID information is subsequently commenced the
defendants in the civil action may invoke their full discovery rights under the Federal Rules of
Civil Procedure, and obtain CID information relevant to their defense . . . . They will thus be
fully able to protect their rights at trial by interrogating, cross-examining, and impeaching CID
witnesses, both during pre-trial discovery, and at the trial itself”); In re NASDAQ Market-Makers
Antitrust Litig., 169 F.R.D. at 531-32 (“The plain language” of the Antitrust Division Manual,
which cites the House Report, “indicates that this regulation was intended to afford Defendants
in government antitrust actions a full and fair opportunity to defend against” civil actions
commenced upon information obtained by CID).
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 9 PageID#
up and gathered information, that would be work product.”
Ex. 21 (Karpenko Dep.
122:17-123:5). There is no principled basis to treat these communications differently.
Setting Plaintiff’s false distinctions aside, application of the legal standard dictates that
the communications at issue are not attorney work product. The Government acknowledges that
it is “witholding” the 57 documents at issue “from production of the Antitrust Division’s
investigatory file.” Opp. 3. “The work product doctrine withholds protection from documents
that would have been created in essentially similar form irrespective of the litigation.” In re
Capital One Consumer Data Security Breach Litig., 2020 WL 2731238, at *3 (E.D. Va. 2020)
(rejecting declaration that a report “would not have been prepared in a substantially similar form
and may not have been necessary at all without the threat of litigation”). Mr. Wolin’s conclusory
sworn statement is insufficient to demonstrate that these communications get special
work-product protection because ATR is now seeking damages on behalf of some of the agencies
ATR was communicating with as part of its investigation. Each of the FAA witnesses that
participated in ATR’s fact-finding investigation understood that they were gathering factual
information as part of an investigation. E.g., Ex. 14 (Oliphant Dep. 61:6-12) (“Q. did you
anticipate participating in litigation on behalf of the United States against Google?” A: “I did
not.”); id. (Oliphant Dep. 64:13-66:16) (stating she thought the “litigation hold” “was
information seeking”; “We get asked questions all the time,” following up with an ad agency
after receiving a request is “standard procedures” because “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”); Ex. 19 (Horning Dep. 18:22-19:5; 33:23-34:10) (answering “none” to the
question, “at the time of the discussion with DOJ on or around January 5th, 2023, what was your
understanding, if any, as to the possibility of litigation?” and testifying that he viewed the inquiry
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 10 PageID#
“as a routine request for information”). Nor is there any evidence in the record, including in Mr.
Wolin’s Declaration, that ATR informed federal agencies that it anticipated filing a lawsuit
against Google on their behalf. The federal agencies were simply responding to a fellow
agency’s information request.
None of Plaintiff’s cited cases support its claim to work-product protection over
communications with industry participants within the federal government. Plaintiff’s cases all
involve substantive documents prepared by a party or a party’s representative prepared in
anticipation of litigation or at the direction of counsel. See E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 2010 WL 11432920, at *1 (E.D. Va. Aug. 13, 2010) (denying motion to
compel materials “prepared by a professional accounting consultant” at the direction of counsel);
Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1219 (4th Cir. 1976) (documents at issue
involve those prepared by a “patent representative” and “former general house counsel”).Plaintiff has failed to provide any factual predicate for its work product claims. The
conclusory assertion in Mr. Wolin’s sworn statement that it is his belief that these
communications “would not have been created in the same form in the absence of anticipated
litigation,” is both speculative and unsupported by the facts. Wolin Decl. ¶¶ 10, 12, 13, 14. No
witness has testified that he or she anticipated litigation when they first spoke to ATR; each
witness who has been permitted to testify to any degree on these questions viewed the outreach
from Plaintiff as fact gathering requests as part of an investigation. E.g., Ex. 19 (Horning Dep.
18:22-19:5; 33:23-34:10) (had no understanding “at the time of the discussion with DOJ on or
around January 5th, 2023” “as to the possibility of litigation” and viewed the inquiry “as a
In another of Plaintiff’s cases, United States v. Berkeley Heartlab, Inc., the court ordered the
production of a draft memorandum prepared at the direction of counsel where the government
failed to assert work product protections over a “substantially identical final version.” 2017 WL
11673309, at *2 (D.S.C. Dec. 1, 2017).
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 11 PageID#
routine request for information”); Ex. 14 (Oliphant Dep. 61:6-12) (“Q. So as of January 17,
2023, that we – that you sent this email to Mr. Benson, at this time, did you anticipate
participating in litigation on behalf of the United States against Google?” A: “I did not.”); Ex. (Karpenko Dep. 50:18-51:4) (“Q: Before you learned of the lawsuit through a news feed that
came through your iPhone, did you know a lawsuit would be coming?” A: “I only knew of the
complaint as a complaint. I did not know if postal would be involved nor if I would be involved
in any of the complaint.”).
Further, Plaintiff cannot meet its burden because when Google tried to test the factual
predicate for Plaintiff’s privilege claim–the factual predicate missing from Mr. Wolin’s
declaration–Plaintiff’s counsel blocked Google from answering the following yes-or-no
questions by instructing the witnesses not to answer:
● “[D]id you make this request to Lisa Catucci and Mr. Knopf at UM at the direction of
your lawyer?” Ex. 21 (Karpenko Dep. 75:4-76:2)
● “Was there a meeting that prompted you to reach out to Universal McCann for a list
of third-party sites with attorneys for the United States Postal Service?” Ex. (Karpenko Dep. 93:2-9).
● “Has the Department of Justice ever requested information about digital advertising
purchases by the United States Army?” Ex. 19 (Horning Dep. 10:6-14).
● “Did the United States Antitrust Division lawyers present explain to you the purpose
of the interview?” Ex. 19 (Horning Dep. 15:16-25).
These examples are only illustrative; there are several more. E.g., Ex. 19 (Horning Dep.
35:9-36:12, 37:23-38:6); Ex. 22 (Koepke Dep. 256:5-16, 256:18-257:2, 259:6-262:18). Plaintiff,
who bears the burden, cannot on the one hand rely exclusively on the Government’s directives
and on the other, instruct witnesses not to answer questions establishing the existence of those
directives.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 12 PageID#
B.
Communications Between Federal Agencies and Their Advertising Agencies
Are Not Protected Work Product.
Google does not—as Plaintiff suggests—contend that ATR waived work product by
communicating with the ad agencies. Instead, communications between the FAAs and their ad
agencies are not attorney work product because the ad agencies are not the FAAs’ agents for the
purpose of this litigation, and the FAAs did not reach out to them as their agents in anticipation
of litigation. See Burwell v. Peyton, 2014 WL 12717390, at *3 (D. Vt. Apr. 17, 2014) (finding
that plaintiff’s therapists notes were not protected work product because there “was no evidence
that” the therapist “was acting as an agent of [plaintiff’s] attorney at the time” nor any legal basis
“to conclude that a doctor would be considered an attorney’s agent in these circumstances”).Plaintiff claims that “the advertising agencies here are not unrelated third parties”
because “they work directly with the federal agencies on the subject of this litigation and
maintain information regarding the federal agencies’ purchases necessary to the evaluation of
those purchases by counsel.” Opp. 11.
But this assertion does not make the ad agencies
“representatives” of a party for purposes of Rule 26’s work product protections.
Throughout discovery it has been Plaintiff’s position that the ad agencies are not
representatives of the FAAs or ATR for purposes of this litigation. Mot. 4, 8, 11. When Google
requested data related to the FAAs’ advertising purchases, Plaintiff “explained that the FAAs do
not maintain” the data, and “instead has such information, if at all, in the form of documents
provided over time by their ad agency contractors.” Ex. 2 at 12. When Google requested that
Plaintiff direct the ad agencies to produce the data, Plaintiff responded that although “there is a
Plaintiff’s attempts to distinguish Burwell fail. Opp. 11. Plaintiff fails to acknowledge that the
therapist's notes recorded a conversation between the plaintiff and his attorney to discuss the
plaintiff’s decision regarding whether to move forward with a lawsuit, which the court concluded
was “clearly” prepared in anticipation of litigation. Burwell, 2014 WL 12717390, at *2. Even so,
the court found the notes were not protected.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 13 PageID#
contractual relationship between the FAAs and their advertising agencies whereby the
advertising agencies purchase digital advertising on behalf of each FAA,” “[o]utside of that
contractual relationship, the FAAs do not control the actions of the advertising agencies, which
are independent companies that the United States has also served with Rule 45 subpoenas.” Id.
Plaintiff fails to address this point in its opposition. Plaintiff cannot have it both ways–they
cannot decline to produce documents requested because they are in the custody of the ad
agencies, who “the FAAs do not control,” id., and then claim that outreach from FAAs to ad
agencies constitutes work product because the ad agencies are the FAAs’ agents and
representatives in the context of this litigation.
For these reasons, the cases Plaintiff cites are inapposite. Opp. 9. None of the cases
involve situations where, as here, the work product doctrine is being used to shield the
fact-gathering efforts of a third party who was not retained by counsel. In re Allen, 106 F.3d
582, 608 (4th Cir. 1997), involves the opinion work product of an attorney’s typewritten
summary of a witness interview, a scenario clearly not at issue here. Front Royal Ins. Co. v. Gold
Players, Inc., 187 F.R.D. 252, 258-59 (W.D. Va. 1999), concerns the application of the work
product doctrine to the notes of an investigator hired by counsel and directed by counsel to
conduct witness interviews; here, the ad agencies were not hired nor directed by counsel. Id. at
259.C.
Internal FAA Non-Lawyer Communications Are Not Protected Work
Product.
Plaintiff claims work product protection over communications among U.S. Army
employees on which no attorney is the sender, recipient, or copyee, on the basis that these
Temporary Services, Inc. v. AIG, Inc., 2012 WL 13005977, at *2 (D.S.C. Jan. 18, 2012), also
cited by Plaintiffs, involves an investigation conducted by employees of defendant, at the
direction of defendant’s counsel, in connection with ongoing litigation and regulatory
proceedings. Id. at *1-2.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 14 PageID#
documents were “prepared at the request of an attorney in connection with gathering information
at request of and as directed by Department of Justice Antitrust Division.” Ex. 18 (Aug. 23,
2023 Privilege Log, entries 2903-2910). But again these claims fail because the declaration that
Plaintiff has submitted based on Mr. Wolin’s “belief” fails to set forth any factual predicate for a
privilege claim, and Plaintiff precluded Google from testing whether there is any factual
privilege for a work product claim. Supra section II.A; S.E.C. v. Nodurft, 2010 WL 11508139, at
*3 (M.D. Fla. Apr. 28, 2010) (an adversary “is entitled “ to “test the sufficiency of the privilege
asserted”). For example, counsel at Mr. Horning’s deposition refused to let the witness answer
the yes or no question, “Has the Department of Justice ever requested information about digital
advertising purchases by the United States Army?” Ex. 19 (Horning Dep. 10:6-14).
D.
Testimony Is Not Work Product.
Plaintiff’s attempt to claw back testimony as work product is not supported by law. Opp.
5. “Work product extends only to ‘documents and tangible things.’” Equal Rights Ctr. v. Lion
Gables Residential Trust, 2010 WL 2483613, at *9 (D. Md. June 15, 2010) (quoting Fed. R. Civ.
P. 26(b)(3)). Thus, Plaintiff “cannot invoke work product protection as a basis for withholding
the underlying facts identified in the allegedly protected documents” during depositions. Id.
Plaintiff’s claim of work product over Mr. Karpenko’s and Mr. Owens’s deposition testimony
must be rejected outright.
E.
Plaintiff’s Distinction Between Opinion Work Product and Factual
Information Would Swallow the Distinction.
“Opinion work product includes the mental impressions, conclusions, opinions, and legal
theories of a party’s attorney.” Galloway v. Sunbelt Rentals, Inc., 2015 WL 176615, at *2 (W.D.
Va. Jan 14, 2015). In contrast, information is factual in nature–not opinion work product–when
it involves “statements, interviews, chronologies, and correspondence.” Id.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 15 PageID#
Plaintiff has not met its burden of supporting its sweeping argument that the
communications at issue reflect opinion work product. Opp. 12. Plaintiff’s brief makes clear
these communications reflect facts, not opinions: “The information exchanged in these
communications included the nature and extent of purchases of digital advertising by those
agencies.” Opp. 7. Further, Mr. Wolin’s declaration says nothing about the documents on the
ATR privilege log which he reviewed reflecting any “mental impressions, conclusions, opinions,
or legal theories concerning the litigation.” Id. His declaration establishes just the opposite,
explaining that the communications were “undertaken to gather information about digital
advertising purchases to aid in the Antitrust Division’s investigation of Google’s digital
advertising practices.” Wolin Decl. ¶ 8. No evidence supports any claim that these documents in
their entirety reflect opinion work product. As Google stated in its opening brief, to the extent a
document contains “mental impressions, conclusions, opinions, or legal theories” of Plaintiff’s
counsel, that information may be redacted.
F.
Google Has a Substantial Need for the Documents and Testimony at Issue,
and Cannot Secure the Substantial Equivalent without Undue Hardship.
Google has a substantial need for the unvarnished facts as to how buyers of digital ads
view the industry, and how the purchasing of advertising works from the perspective of the FAAs
on whose behalf Plaintiff claims to be suing. Based on the few documents Google has been able
to question witnesses about in deposition and the surrounding testimony, Google has every
reason to believe that the improperly withheld documents will demonstrate that commercial
realities defy Plaintiff’s alleged antitrust markets, as limited to “open web display advertising.”
The OIG-USPS email which Plaintiff completely ignores in its opposition, Ex. 13, and
the related text message thread between USPS and its ad agency, Universal McCann, make this
point. Mr. Karpenko exchanged text messages with a Universal McCann employee asking, “do
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 16 PageID#
we do much advertising on third-party web sites, not Twitter/FB?” Ex. 24 (Karpenko Dep. Ex.
35). Mr. Karpenko asks the UM employee to give an example of a “third party site” because, as
he testified, “I didn’t necessarily understand what third-party site would mean to everyone and
was looking from the perspective of what UM might consider the term third-party site.” Id. Mr.
Karpenko testified he was “looking for more of an educational perspective from someone in the
media world of what they felt third party might mean.” Ex. 21 (Karpenko Dep. 98:1-5). The
UM employee also did not know what the term meant, stating, “Funny I don’t really know what
that term refers to?” Ex. 24 (Karpenko Dep. Ex. 35).7 These exchanges are evidence that
industry participants–whose views matter for purposes of defining the relevant antitrust
market–do not view the relevant antitrust markets in the way Plaintiff has alleged.
Further, in Exhibit 33 to the Karpenko deposition, the witness explains that their
advertising is “acquired through our media agency through USPS.” Ex. 13. This unvarnished
explanation, untainted by any lawyer preparation, is highly relevant to whether the FAAs are
indirect purchasers foreclosed from recovering damages under federal antitrust law. Google
therefore has reason to believe that other emails wrongly withheld as privileged contain similar,
unvarnished views of how digital ads are purchased—i.e., not directly from Google—which
directly undermines Plaintiff’s claim to be direct purchasers under the antitrust laws. Google has
a substantial need for these unvarnished views, untainted by attorney preparation; there is no
substantial equivalent. Subsequent to attorney preparation, witnesses have offered far different
answers than the plain admission of the kind reflected in Mr. Karpenko’s email. See, e.g., Ex.
In the very same text message thread, Mr. Karpenko writes, “I will send an email to you and
Michael. I won’t really provide the why for context.” Ex. 24 (Karpenko Dep. Ex. 35). The
government has clawed back the very email that Mr. Karpenko sent to the UM employees
referenced in his text during the deposition, and which the Court should readily determine
through in camera review is not privileged, just as Google lawyers determined when selecting
the document for use in deposition.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 17 PageID#
(Owens Tr. 221:20-222:2) (Q: “Did the navy purchase any display advertising directly from
Google?” McBirney: “Objection. Asked and answered. Calls for a legal conclusion. Lack of
foundation.”
A: “The Navy purchased advertising from Google via our contract with
VMLY&R.”).
Google has no way to obtain these documents or this testimony without undue hardship.
Plaintiff fails to appreciate that the limitation on the number of depositions in this case and the
expedited fact discovery period are precisely why Google is unable “to secure the substantial
equivalent of the materials by alternate means without undue hardship.” In re Grand Jury
Proceedings, 102 F.3d at 750.
Booz Allen, which Plaintiff relegates to a footnote, is directly on point. There, the court
acknowledged that the party seeking discovery of documents over which the government
asserted work product had the opportunity to take depositions, but noted that “a deposition’s
usefulness may be limited in this context without the requested documents,” and stated that “the
breakneck speed of this litigation has diminished the availability of alternative sources for this
information.” Booz Allen, 2022 WL 3921019, at *2.8 Multiple witnesses deposed to date have
failed to recall the time, place, or manner of relevant communications with government lawyers
absent any documents that could potentially aid in their recollection.
Likewise, Federal Election Commission supports Google’s arguments, and that is why
Plaintiff fails to address it. There, the court affirmed that a party was “unable without undue
hardship to obtain the substantial equivalent of the materials by other means,” in light of the
“limit on depositions in the D.C. litigation combined with the potential that the deponents might
Plaintiff’s claim that this case is distinguishable because the documents would have served as
key exhibits to the witness’s testimony undermines Plaintiff’s claim. Google is challenging the
clawback of documents that did serve as key exhibits during deposition examinations, and were
relevant to the testimony that Plaintiff has also improperly clawed back. E.g., Lion Gables
Residential Trust, 2010 WL 2483613, at *9 (testimony cannot be protected work product).
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 18 PageID#
not be able to recall sufficient detail regarding meetings that took place at least five years ago.”
Fed. Elec. Comm’n v. Christian Coal., 178 F.R.D. 456, 466-67 (E.D. Va. 1998). In that case, the
parties were “allowed to take up to fifty depositions in the underlying litigation,” which is almost
double the number of depositions each party may take in this case.
Moreover, FAA witnesses have already demonstrated their inability to recall with
sufficient detail communications that took place during the late 2022 - early 2023 time period.
E.g., Ex. 14 (Oliphant Dep. 60:2-14, 62:10-17, 69:4-9 (claiming not to recall any conversations
with DOJ or whether she was aware of any investigation the antitrust division was doing prior to
January 2023); id. at 71:8-18 (claiming not to recall receiving any requests to collect documents
from the antitrust division)); Ex. 21 (Karpenko Dep. 69:3-7 (claiming not to recall having
conversations with anyone from OIG with respect to digital ad spend by the postal service after
January 9, 2023); id. at 130:4-13 (claiming not to recall whether he had other conversations with
his ad agency contact, but suggesting such conversations may have been produced).
III.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING THE
COMMUNICATIONS AT ISSUE ARE PROTECTED BY THE DELIBERATIVE
PROCESS PRIVILEGE.
A.
Plaintiff Has Not Demonstrated that the Communications At Issue Reflect
Any Agency Employee’s Expression of Their Opinion.
Plaintiff fails to support with any evidence its claim of deliberative process privilege.
Nothing in the declaration of Mr. Wolin suggests that anything in the documents that Google
seeks “contains an employee’s personal views or explain how disclosure of the requested factual
information would hinder frank and independent discussion regarding any decision” on whether
to file suit or what the complaint should say. Booz Allen , 2022 WL 3921019 at *2. Again, just
the opposite: Mr. Wolin’s sworn statement is that these communications “were relevant inputs
into the decisional process within the Antitrust Division as to the scope and contents of our
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 19 PageID#
complaint against Google.” Wolin Decl. ¶ 8. In other words, the facts gathered in the course of
ATR’s investigation from the FAAs played a role in the ultimate decision making, but those facts
are not in and of themselves any employee’s “personal views” and those facts in and of
themselves would not “hinder frank and independent discussion.” Simply stated, the deliberative
process privilege does not protect “relevant inputs” that are not an agency employee’s
“policy-oriented judgment.” Ethyl Corp., 25 F.3d at 1248 (“the privilege does not protect a
document which is merely peripheral to actual policy formulation; the record must bear on the
formulation or exercise of policy-oriented judgment”).
B.
Plaintiff Incorrectly Treats the Deliberative Process Privilege as an Absolute
Privilege.
Plaintiff treats deliberative process as an absolute privilege, but it is not. A “court may
order disclosure after balancing ‘the public interest in nondisclosure with the need for the
information as evidence,” and finding defendants showed a compelling need for disclosure even
“assuming without deciding the Government has the right to assert the privilege.” Booz Allen,
2022 WL 3921019 at *2. In applying this test, courts consider four factors: (1) relevance of
evidence; (2) availability of alternative evidence on the same matters; (3) government’s role in
the litigation; and (4) the extent to which disclosure would hinder frank and independent
discussion regarding contemplated policies and decisions. Id. And Plaintiff ignores that where,
as here, the government is a party to the litigation in which disclosure of the requested
information is sought, the balance tips in favor of disclosure. E.g., id. (“Where the government
is a party to a case, it has a more central role in the litigation which weighs in favor of disclosure.
Here, the Department of Justice is not just a party but the plaintiff, which weakens the strength of
its privilege claim.”).
Plaintiff does not support legally or factually that, based on the balancing test, ATR’s
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 20 PageID#
interest in nondisclosure outweighs the public interest in disclosure. Plaintiff simply argues that
Google could get the same information by deposing agency employees “in the standard course of
discovery.” Opp. at 23. This is the precise argument that ATR made and the court rejected in
Booz Allen.
In that very recent case (ignored by Plaintiffs) involving this same Antitrust
Division, the court ordered disclosure of information relevant to market definition because there,
like here, the requested communications contain facts, as opposed to any employee’s “personal
views,” was relevant, “the breakneck speed of the litigation diminished the availability of
alternative sources for this information,” and “the Department of Justice is not just a party, but
the plaintiff, which weakens the strength of the privilege claim.” 2022 WL 3921019, at *2.
And, the final factor–whether frank and independent discussions would be hindered–weighed in
favor of disclosure because the documents at issue were “unmoored from any given employee’s
personal views.” Id. at *3.
CONCLUSION
For the foregoing reasons, Google’s motion to compel should be granted.
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362Page 21 PageID#
Dated: August 24, Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street, NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
Counsel for Defendant Google LLC
Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-Telephone: (202) 223-Facsimile (202) 223-kdunn@paulweiss.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearborn@paulweiss.com
Erin J. Morgan (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-Telephone: (212) 373-Facsimile: (212) 492-ejmorgan@paulweiss.com
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 1 of 21 PageID# 5443
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
v.
No. 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
GOOGLE LLC’S REPLY IN SUPPORT OF ITS
MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND TESTIMONY WRONGLY WITHHELD AS PRIVILEGED
Plaintiff’s position in this case would establish a sweeping application of
privilege–attorney-client, work product, and deliberative process–never before applied in any
case, and entirely at odds with the Fourth Circuit’s prescription that privilege “must be narrowly
construed and recognized only to the very limited extent that excluding relevant evidence has a
public good transcending the normally predominant principle of utilizing all rational means for
ascertaining truth.” In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003). The Plaintiff
proffers this unprecedented application of privilege because the facts withheld and clawed back
imperil their alleged market definition–and request for damages–in this case. Plaintiff has not
met its burden and Google is allowed to discover these facts.
First, Plaintiff’s attorney-client privilege claim depends on the Department of Justice
having an attorney-client relationship with every employee in every federal agency. But that is
not the law, nor does it make any sense. While the Department of Justice can represent federal
agencies, that alone does not establish an attorney-client relationship. To establish such a
1
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 2 of 21 PageID# 5444
relationship, the normal rules for attorney-client privilege apply. At the time lawyers from the
Antitrust Division of the Department of Justice (“ATR”) reached out to employees at federal
agencies, no attorney-client relationship had been formed.
Nor were the Federal Agency
Advertiser (“FAA”) employees seeking legal advice in responding to ATR’s outreach.
Accordingly, those communications are discoverable.
Second, Plaintiff does not dispute that it is required to produce to Google its investigation
file, or that the documents it is withholding on the basis of privilege and work product are part of
that file. Opp. 3. In withholding these investigatory documents, which reflect the facts and
information provided by key industry participants–federal agencies who are buyers of
advertising and whose knowledge of the industry and how ad buying works are directly relevant
to market definition–Plaintiff is denying Google access to key factual evidence. Google is
entitled to the full investigatory file in order to defend itself, not just the portions that Plaintiff
selectively chooses to provide. In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493,
531-32 (S.D.N.Y. 1996) (applicable DOJ regulations enabling antitrust defendants to “obtain
CID information relevant to their defense” were “intended to afford Defendants in government
antitrust actions a full and fair opportunity to defend against such actions”); United States v.
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (under the fairness doctrine “selective disclosure” of
privileged communications “for tactical purposes waives the privilege”).
Contrary to Plaintiff’s claim that any document created by any individual “in direct
response to” an ATR attorney’s “questions” constitutes work product, Wolin Dec. ¶¶ 10, 12, 13,
14, that is not the law.
If it were, Plaintiff would be able to withhold the entirety of its
investigative file. Plaintiff does not take the position that it is entitled to do so, and has produced
communications, including communications with ATR attorneys, from its investigation with all
2
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 3 of 21 PageID# 5445
third parties other than federal agencies and their ad agencies. That alone eviscerates a claim of
work product, which does not hinge on an attorney-client relationship; if communications with
some third parties are not work product (as Plaintiff concedes), communications with other third
parties are also not work product. Plaintiff’s argument is also untenable because it attempts to
insulate all FAA-related communications, including those between non-attorneys at federal
agencies and non-attorneys at ad agencies, as attorney work product even where no participant
on the communication is acting as an agent of an attorney or anticipates litigation. This is not a
close case like, for example, cases where courts consider communications with an investigator,
accountant, or PR firm directly hired by counsel expressly to assist a lawyer in litigation; here,
Plaintiff has insisted throughout this lawsuit that they “do not control” the ad agencies.
Third, the deliberative process privilege does not apply because the facts gathered in the
course of ATR’s investigation do not reflect employees’ personal views or policy-oriented
judgment, and therefore cannot hinder frank and independent discussion, a necessary
precondition for the deliberative process to apply. Tellingly, Plaintiff all but ignores a recent case
squarely on point where ATR made many of the same arguments it makes here and lost. United
States v. Booz Allen Hamilton Inc., 2022 WL 3921019 (D. Md. Aug. 31, 2022); see also Ethyl
Corp. v. U.S. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994).
Finally, the only evidence Plaintiff offers in support of its sweeping and novel privilege
claims is a self-serving attorney declaration, proffering that single attorney’s “beliefs”–rather
than any actual facts–establishing privilege. Such declaration is insufficient to meet Plaintiff’s
burden. In any event, the declaration is also directly contradicted by the sworn testimony of
FAA employees who disavow all necessary bases for Plaintiff’s privilege assertions.
Accordingly, Google respectfully requests its motion be granted.
3
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 4 of 21 PageID# 5446
I.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING THAT
THE DOCUMENTS AND TESTIMONY AT ISSUE ARE SUBJECT TO
ATTORNEY-CLIENT PRIVILEGE.1
A.
Plaintiff’s Contention that There Is at All Times an Attorney-Client
Relationship Between the Department of Justice and Every Employee at
Every Federal Agency Is Both Legally and Factually Incorrect.
Plaintiff argues that ATR’s statutory authority to bring antitrust claims on behalf of the
United States creates an attorney-client relationship with every agency within the executive
branch. Opp. 16. That is not the law. While the statutory provisions cited by Plaintiff provide
that ATR can represent a federal agency in litigation, the provisions do not establish that ATR
was representing the agencies in question at the time of the communications at issue. Cayuga
Nation v. U.S. Dep’t of Interior, 2022 WL 888178, at *8 (D.D.C. March 25, 2022) (rejecting
assertion that DOJ “is the legal representative” of federal agencies “whenever the Interest of the
United States are at issue” and denying claim of privilege because statutes providing that DOJ
“can represent” agencies in litigation “do not establish that the U.S. Attorneys were
representing” agency employees “in a legal capacity or providing privileged legal advice”).
Plaintiff has not presented any facts establishing the existence of an attorney-client
relationship with the federal agencies in question. Plaintiff advocates that a different standard for
the attorney-client privilege should apply to them. But that is not the case. Stonehill v. U.S.
Dep’t of Justice Tax Division, 2022 WL 407145, at *23 (D.D.C. Feb. 10, 2022) (agency “must
1
Plaintiff’s August 7, 2023 Privilege log, Ex. 17 (excerpt showing 96 documents clawed back on
August 4, 2023 and highlighting entries over which Plaintiff has improperly asserted privilege),
asserts attorney-client privilege over 3 intra-agency communications that were clawed back on
August 4, 2023, which do not involve any lawyer from either ATR or the agency, asserting that
they are “confidential communications to counsel for United States.” Plaintiff appears to be
taking an inconsistent position given that it has only asserted attorney work product over similar
documents reflected on its August 23, 2023 privilege log–i.e., communications between Army
employees that do not involve any attorney, but were purportedly “prepared at the request of an
attorney.” Ex. 18 (Aug. 23, 2023 Privilege Log). Because the communications do not involve
counsel, Google requests that the Court find that such communications are not protected by the
attorney-client privilege. In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).
4
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 5 of 21 PageID# 5447
show” the standard for attorney-client privilege has been met). For purposes of determining
whether the privilege applies, it is the specific context of the communications that matters.
Cayuga Nation, 2022 WL 888178, at *8. Here, that context demonstrates the privilege does not
attach. FAA witnesses testified that they did not view lawyers at ATR to be their lawyers. Ex.
14 (Oliphant Dep. at 334:22-335:22) (“Q. Do you consider the lawyers for the antitrust division
to be lawyers for the census bureau? A. I do not.”); Ex. 19 (Horning Dep. at 7:11-8:23) (claiming
not to “have a personal opinion on who our counsel is” but that he has never “requested legal
advice from the Department of Justice Antitrust Division”).2 Certainly, if the FAAs who are
parties to this lawsuit do not view ATR lawyers to be their lawyers, federal agencies on whose
behalf ATR is not asserting claims would not either. In re Grand Jury Subpoena: Under Seal,
415 F.3d 333, 339 (4th Cir. 2005) (the attorney-client relationship “hinges upon the client’s belief
that he is consulting a lawyer in that capacity and his manifested intention to seek professional
legal advice”) (quoting United States v. Evans, 113 F.3d 1457, 1465 (7th Cir. 1997)). Plaintiff
has not presented any facts to meet their burden of establishing an attorney-client relationship.
In Booz Allen, a case entirely on-point which Plaintiff all but ignores, DOJ similarly
asserted attorney-client privilege protection over “the great majority of the documents,” claiming
that the NSA was its client. 2022 WL 3921019, at *3. DOJ later “changed the basis for many of
its privilege designations . . . . draw[ing] a line between the DOJ’s initial inquiries with the NSA,
where DOJ first played the role of an investigator.” Id. The court stated that this line was
“consistent” with its views on attorney-client privilege. Id. The communications at issue here,
like in Booz Allen, do not go beyond initial inquiries to agencies for the purpose of investigation.
2
Contrary to Plaintiff’s assertion, Google is not seeking to compel intra-agency communications
on which agency counsel appears, i.e., “communications between the FAAs’ internal counsel and
employees of those FAAs containing legal advice or requests for legal advice.” Opp. 4.
5
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 7
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 6 of 21 PageID# 5448
B.
The FAA and non-FAA Agencies Were Not Seeking Legal Advice.
Plaintiff’s unsolicited emails, questions, and requests for information do not reveal any
confidential information provided by the federal agencies. The Mead case cited in Plaintiff’s
brief makes clear that outreach from an attorney to a client is only privileged to the extent it
includes or “is based on confidential information provided by the client.” Mead Data Cent., Inc.
v. United States Dep’t of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977) (cited at Opp. 20); see
also Zander v. Dep’t of Justice, 885 F. Supp. 2d 1, 17 (D.D.C. 2012) (“Because it is an attorney’s
communication to his clients, the email falls within Mead Data’s additional limitation and is only
privileged if it rests on confidential information obtained from the clients. This email generally
does not rest on such information, and is hence subject to disclosure.”). Plaintiff’s claim that the
federal agencies were seeking legal advice when communicating with ATR is undermined by the
sworn testimony of the FAA witnesses. E.g., Ex. 14 (Oliphant Dep. 63:13-64:9) (“Q. And did
you ever seek the legal advice of the antitrust division with respect to any anticompetitive
conduct on the part of Google? A. No.”); Ex. 20 (Owens Dep. 88:25-89:7) (“Q. Prior to this
lawsuit, have you ever requested legal advice from the Department of Justice Antitrust Division?
A. No. Q. Prior to learning about this lawsuit, have you ever requested legal advice from the
Department of Justice Antitrust Division? A. No.”); Ex. 19 (Horning Dep. 8:2-23) (“Q. Have you
ever requested legal advice from the Department of Justice Antitrust Division?” “A. No.”).
Their testimony further demonstrates that the FAAs had no reason to seek legal advice
from ATR relating to the issues in this case, as none of them believed that Google acted
anticompetitively or caused them any harm. Ex. 14 (Oliphant Dep. at 63:5-11) (“Q. In the course
of your work as the COR for Order 15, did you ever form a view that Google was engaging in
anticompetitive conduct? A. No, I did not.”); Ex. 20 (Owens Dep. 210:22-211:4) (“Prior to the
6
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 8
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 7 of 21 PageID# 5449
filing of this lawsuit in January of 2023, were you aware of any anticompetitive conduct on the
part of Google affecting Navy’s advertising?” “A. To my knowledge, No.”); Ex. 21 (Karpenko
Dep. 139:3-8) (“I was unaware of any anticompetitive conduct from Google.”); Ex. 22 (Koepke
Dep. 221:20-222:3) (“Q. Prior to having any conversation with any lawyer with respect to
Google Ads, any lawyer from the government, did you ever have any concerns that Google was
engaging in anticompetitive conduct related to display advertising? A. No.”); Ex. 19 (Horning
Dep. 17:11-18:9) (“Q. So using your definition of anticompetitive, which is in the context of
business practic[es] – practices meaning ‘not adhering to a competitive, fair practice,’ at this
time, January 5th of 2023, were you aware of any anticompetitive practices on the part of Google
affecting the Army’s advertising? A. I was not aware.”).
Rather, multiple FAA witnesses testified Google provided them with benefits. Ex. 20
(Owens Dep. 212:11-12) (“We have found lots of value in many of the Google buys that we’ve
done.”); Ex. 21 (Karpenko Dep. 314:11-315:5) (“We have used Google because they do provide
a value for the postal services”); Ex. 22 (Koepke Dep. 116:18-117:4) (Google increased the
effectiveness of CMS’s display ads); Ex. 19 (Horning Dep. 190:3-191:11) (Google hosted an
educational event for Army marketers that was “helpful to the marketing team”).
II.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF DEMONSTRATING
THE DOCUMENTS AT ISSUE ARE PROTECTED WORK PRODUCT.
A.
Communications Between ATR and Federal Agencies Are Not Protected
Work Product.
Plaintiff concedes that the 57 documents it is withholding are from “the Antitrust
Division’s investigatory file.” Opp. 3. Plaintiff has produced the rest of its investigatory file,
including the same kinds of communications as those being withheld here with ATR
attorneys–communications with industry participants about the case. But the same work product
legal standard applies whether the industry participant is a federal agency or not. By Plaintiff’s
7
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 9
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 8 of 21 PageID# 5450
logic, it could have, and should have, asserted work product over communications with every
other third party that “were about this case.” Opp. 7. Plaintiff did not because Google is entitled
to facts within ATR’s investigatory file–facts that are necessary for Google to adequately defend
itself.3 Plaintiff’s concession that communications with non-FAA third parties are not work
product and discoverable is fatal to its claim that FAA-related communications are work product.
Moreover, fundamental fairness dictates that all communications in the investigatory file be
produced so Google is on a level playing field with Plaintiff. Jones, 696 F.2d at 1072 (under
fairness doctrine “selective disclosure” of privileged communications “for tactical purposes
waives the privilege”); Williams v. Big Picture Loans, LLC, 2019 1983048, at *10 (E.D. Va. May
3, 2019) (“Selective disclosure occurs . . . when a party reveals one beneficial communication
but fails to reveal another, less helpful, communication on the same matter.”).
An illustration of Plaintiff’s false dichotomy is its tortured attempt to distinguish between
OIG and DOJ communications with USPS witness Mr. Karpenko. At his deposition, Plaintiff’s
counsel took the position that fact-finding communications between ATR and USPS employees
were privileged, but the same fact-finding inquiries between OIG lawyers and USPS employees
were not: “So there were two separate requests that the witness had. There’s a request from
OIG, which we are not claiming privilege over, but there is also a request from DOJ, and that–for
that we are claiming privilege because the–when he came out and when he did work on–culled
See H.R. Rep. No. 94-1343, at 15 (1976) (legislative history to amendment to Antitrust Civil
Process Act: “if a civil action based on the CID information is subsequently commenced the
defendants in the civil action may invoke their full discovery rights under the Federal Rules of
Civil Procedure, and obtain CID information relevant to their defense . . . . They will thus be
fully able to protect their rights at trial by interrogating, cross-examining, and impeaching CID
witnesses, both during pre-trial discovery, and at the trial itself”); In re NASDAQ Market-Makers
Antitrust Litig., 169 F.R.D. at 531-32 (“The plain language” of the Antitrust Division Manual,
which cites the House Report, “indicates that this regulation was intended to afford Defendants
in government antitrust actions a full and fair opportunity to defend against” civil actions
commenced upon information obtained by CID).
3
8
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 10
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 9 of 21 PageID# 5451
up and gathered information, that would be work product.”
Ex. 21 (Karpenko Dep.
122:17-123:5). There is no principled basis to treat these communications differently.
Setting Plaintiff’s false distinctions aside, application of the legal standard dictates that
the communications at issue are not attorney work product. The Government acknowledges that
it is “witholding” the 57 documents at issue “from production of the Antitrust Division’s
investigatory file.” Opp. 3. “The work product doctrine withholds protection from documents
that would have been created in essentially similar form irrespective of the litigation.” In re
Capital One Consumer Data Security Breach Litig., 2020 WL 2731238, at *3 (E.D. Va. 2020)
(rejecting declaration that a report “would not have been prepared in a substantially similar form
and may not have been necessary at all without the threat of litigation”). Mr. Wolin’s conclusory
sworn statement is insufficient to demonstrate that these communications get special
work-product protection because ATR is now seeking damages on behalf of some of the agencies
ATR was communicating with as part of its investigation. Each of the FAA witnesses that
participated in ATR’s fact-finding investigation understood that they were gathering factual
information as part of an investigation. E.g., Ex. 14 (Oliphant Dep. 61:6-12) (“Q. did you
anticipate participating in litigation on behalf of the United States against Google?” A: “I did
not.”); id. (Oliphant Dep. 64:13-66:16) (stating she thought the “litigation hold” “was
information seeking”; “We get asked questions all the time,” following up with an ad agency
after receiving a request is “standard procedures” because “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”); Ex. 19 (Horning Dep. 18:22-19:5; 33:23-34:10) (answering “none” to the
question, “at the time of the discussion with DOJ on or around January 5th, 2023, what was your
understanding, if any, as to the possibility of litigation?” and testifying that he viewed the inquiry
9
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 11
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 10 of 21 PageID# 5452
“as a routine request for information”). Nor is there any evidence in the record, including in Mr.
Wolin’s Declaration, that ATR informed federal agencies that it anticipated filing a lawsuit
against Google on their behalf. The federal agencies were simply responding to a fellow
agency’s information request.
None of Plaintiff’s cited cases support its claim to work-product protection over
communications with industry participants within the federal government. Plaintiff’s cases all
involve substantive documents prepared by a party or a party’s representative prepared in
anticipation of litigation or at the direction of counsel. See E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 2010 WL 11432920, at *1 (E.D. Va. Aug. 13, 2010) (denying motion to
compel materials “prepared by a professional accounting consultant” at the direction of counsel);
Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1219 (4th Cir. 1976) (documents at issue
involve those prepared by a “patent representative” and “former general house counsel”).4
Plaintiff has failed to provide any factual predicate for its work product claims. The
conclusory assertion in Mr. Wolin’s sworn statement that it is his belief that these
communications “would not have been created in the same form in the absence of anticipated
litigation,” is both speculative and unsupported by the facts. Wolin Decl. ¶¶ 10, 12, 13, 14. No
witness has testified that he or she anticipated litigation when they first spoke to ATR; each
witness who has been permitted to testify to any degree on these questions viewed the outreach
from Plaintiff as fact gathering requests as part of an investigation. E.g., Ex. 19 (Horning Dep.
18:22-19:5; 33:23-34:10) (had no understanding “at the time of the discussion with DOJ on or
around January 5th, 2023” “as to the possibility of litigation” and viewed the inquiry “as a
4
In another of Plaintiff’s cases, United States v. Berkeley Heartlab, Inc., the court ordered the
production of a draft memorandum prepared at the direction of counsel where the government
failed to assert work product protections over a “substantially identical final version.” 2017 WL
11673309, at *2 (D.S.C. Dec. 1, 2017).
10
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 12
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 11 of 21 PageID# 5453
routine request for information”); Ex. 14 (Oliphant Dep. 61:6-12) (“Q. So as of January 17,
2023, that we – that you sent this email to Mr. Benson, at this time, did you anticipate
participating in litigation on behalf of the United States against Google?” A: “I did not.”); Ex. 21
(Karpenko Dep. 50:18-51:4) (“Q: Before you learned of the lawsuit through a news feed that
came through your iPhone, did you know a lawsuit would be coming?” A: “I only knew of the
complaint as a complaint. I did not know if postal would be involved nor if I would be involved
in any of the complaint.”).
Further, Plaintiff cannot meet its burden because when Google tried to test the factual
predicate for Plaintiff’s privilege claim–the factual predicate missing from Mr. Wolin’s
declaration–Plaintiff’s counsel blocked Google from answering the following yes-or-no
questions by instructing the witnesses not to answer:
● “[D]id you make this request to Lisa Catucci and Mr. Knopf at UM at the direction of
your lawyer?” Ex. 21 (Karpenko Dep. 75:4-76:2)
● “Was there a meeting that prompted you to reach out to Universal McCann for a list
of third-party sites with attorneys for the United States Postal Service?” Ex. 21
(Karpenko Dep. 93:2-9).
● “Has the Department of Justice ever requested information about digital advertising
purchases by the United States Army?” Ex. 19 (Horning Dep. 10:6-14).
● “Did the United States Antitrust Division lawyers present explain to you the purpose
of the interview?” Ex. 19 (Horning Dep. 15:16-25).
These examples are only illustrative; there are several more. E.g., Ex. 19 (Horning Dep.
35:9-36:12, 37:23-38:6); Ex. 22 (Koepke Dep. 256:5-16, 256:18-257:2, 259:6-262:18). Plaintiff,
who bears the burden, cannot on the one hand rely exclusively on the Government’s directives
and on the other, instruct witnesses not to answer questions establishing the existence of those
directives.
11
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 13
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 12 of 21 PageID# 5454
B.
Communications Between Federal Agencies and Their Advertising Agencies
Are Not Protected Work Product.
Google does not—as Plaintiff suggests—contend that ATR waived work product by
communicating with the ad agencies. Instead, communications between the FAAs and their ad
agencies are not attorney work product because the ad agencies are not the FAAs’ agents for the
purpose of this litigation, and the FAAs did not reach out to them as their agents in anticipation
of litigation. See Burwell v. Peyton, 2014 WL 12717390, at *3 (D. Vt. Apr. 17, 2014) (finding
that plaintiff’s therapists notes were not protected work product because there “was no evidence
that” the therapist “was acting as an agent of [plaintiff’s] attorney at the time” nor any legal basis
“to conclude that a doctor would be considered an attorney’s agent in these circumstances”).5
Plaintiff claims that “the advertising agencies here are not unrelated third parties”
because “they work directly with the federal agencies on the subject of this litigation and
maintain information regarding the federal agencies’ purchases necessary to the evaluation of
those purchases by counsel.” Opp. 11.
But this assertion does not make the ad agencies
“representatives” of a party for purposes of Rule 26’s work product protections.
Throughout discovery it has been Plaintiff’s position that the ad agencies are not
representatives of the FAAs or ATR for purposes of this litigation. Mot. 4, 8, 11. When Google
requested data related to the FAAs’ advertising purchases, Plaintiff “explained that the FAAs do
not maintain” the data, and “instead has such information, if at all, in the form of documents
provided over time by their ad agency contractors.” Ex. 2 at 12. When Google requested that
Plaintiff direct the ad agencies to produce the data, Plaintiff responded that although “there is a
5
Plaintiff’s attempts to distinguish Burwell fail. Opp. 11. Plaintiff fails to acknowledge that the
therapist's notes recorded a conversation between the plaintiff and his attorney to discuss the
plaintiff’s decision regarding whether to move forward with a lawsuit, which the court concluded
was “clearly” prepared in anticipation of litigation. Burwell, 2014 WL 12717390, at *2. Even so,
the court found the notes were not protected.
12
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 14
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 13 of 21 PageID# 5455
contractual relationship between the FAAs and their advertising agencies whereby the
advertising agencies purchase digital advertising on behalf of each FAA,” “[o]utside of that
contractual relationship, the FAAs do not control the actions of the advertising agencies, which
are independent companies that the United States has also served with Rule 45 subpoenas.” Id.
Plaintiff fails to address this point in its opposition. Plaintiff cannot have it both ways–they
cannot decline to produce documents requested because they are in the custody of the ad
agencies, who “the FAAs do not control,” id., and then claim that outreach from FAAs to ad
agencies constitutes work product because the ad agencies are the FAAs’ agents and
representatives in the context of this litigation.
For these reasons, the cases Plaintiff cites are inapposite. Opp. 9. None of the cases
involve situations where, as here, the work product doctrine is being used to shield the
fact-gathering efforts of a third party who was not retained by counsel. In re Allen, 106 F.3d
582, 608 (4th Cir. 1997), involves the opinion work product of an attorney’s typewritten
summary of a witness interview, a scenario clearly not at issue here. Front Royal Ins. Co. v. Gold
Players, Inc., 187 F.R.D. 252, 258-59 (W.D. Va. 1999), concerns the application of the work
product doctrine to the notes of an investigator hired by counsel and directed by counsel to
conduct witness interviews; here, the ad agencies were not hired nor directed by counsel. Id. at
259.6
C.
Internal FAA Non-Lawyer Communications Are Not Protected Work
Product.
Plaintiff claims work product protection over communications among U.S. Army
employees on which no attorney is the sender, recipient, or copyee, on the basis that these
6
Temporary Services, Inc. v. AIG, Inc., 2012 WL 13005977, at *2 (D.S.C. Jan. 18, 2012), also
cited by Plaintiffs, involves an investigation conducted by employees of defendant, at the
direction of defendant’s counsel, in connection with ongoing litigation and regulatory
proceedings. Id. at *1-2.
13
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 15
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 14 of 21 PageID# 5456
documents were “prepared at the request of an attorney in connection with gathering information
at request of and as directed by Department of Justice Antitrust Division.” Ex. 18 (Aug. 23,
2023 Privilege Log, entries 2903-2910). But again these claims fail because the declaration that
Plaintiff has submitted based on Mr. Wolin’s “belief” fails to set forth any factual predicate for a
privilege claim, and Plaintiff precluded Google from testing whether there is any factual
privilege for a work product claim. Supra section II.A; S.E.C. v. Nodurft, 2010 WL 11508139, at
*3 (M.D. Fla. Apr. 28, 2010) (an adversary “is entitled “ to “test the sufficiency of the privilege
asserted”). For example, counsel at Mr. Horning’s deposition refused to let the witness answer
the yes or no question, “Has the Department of Justice ever requested information about digital
advertising purchases by the United States Army?” Ex. 19 (Horning Dep. 10:6-14).
D.
Testimony Is Not Work Product.
Plaintiff’s attempt to claw back testimony as work product is not supported by law. Opp.
5. “Work product extends only to ‘documents and tangible things.’” Equal Rights Ctr. v. Lion
Gables Residential Trust, 2010 WL 2483613, at *9 (D. Md. June 15, 2010) (quoting Fed. R. Civ.
P. 26(b)(3)). Thus, Plaintiff “cannot invoke work product protection as a basis for withholding
the underlying facts identified in the allegedly protected documents” during depositions. Id.
Plaintiff’s claim of work product over Mr. Karpenko’s and Mr. Owens’s deposition testimony
must be rejected outright.
E.
Plaintiff’s Distinction Between Opinion Work Product and Factual
Information Would Swallow the Distinction.
“Opinion work product includes the mental impressions, conclusions, opinions, and legal
theories of a party’s attorney.” Galloway v. Sunbelt Rentals, Inc., 2015 WL 176615, at *2 (W.D.
Va. Jan 14, 2015). In contrast, information is factual in nature–not opinion work product–when
it involves “statements, interviews, chronologies, and correspondence.” Id.
14
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 16
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 15 of 21 PageID# 5457
Plaintiff has not met its burden of supporting its sweeping argument that the
communications at issue reflect opinion work product. Opp. 12. Plaintiff’s brief makes clear
these communications reflect facts, not opinions: “The information exchanged in these
communications included the nature and extent of purchases of digital advertising by those
agencies.” Opp. 7. Further, Mr. Wolin’s declaration says nothing about the documents on the
ATR privilege log which he reviewed reflecting any “mental impressions, conclusions, opinions,
or legal theories concerning the litigation.” Id. His declaration establishes just the opposite,
explaining that the communications were “undertaken to gather information about digital
advertising purchases to aid in the Antitrust Division’s investigation of Google’s digital
advertising practices.” Wolin Decl. ¶ 8. No evidence supports any claim that these documents in
their entirety reflect opinion work product. As Google stated in its opening brief, to the extent a
document contains “mental impressions, conclusions, opinions, or legal theories” of Plaintiff’s
counsel, that information may be redacted.
F.
Google Has a Substantial Need for the Documents and Testimony at Issue,
and Cannot Secure the Substantial Equivalent without Undue Hardship.
Google has a substantial need for the unvarnished facts as to how buyers of digital ads
view the industry, and how the purchasing of advertising works from the perspective of the FAAs
on whose behalf Plaintiff claims to be suing. Based on the few documents Google has been able
to question witnesses about in deposition and the surrounding testimony, Google has every
reason to believe that the improperly withheld documents will demonstrate that commercial
realities defy Plaintiff’s alleged antitrust markets, as limited to “open web display advertising.”
The OIG-USPS email which Plaintiff completely ignores in its opposition, Ex. 13, and
the related text message thread between USPS and its ad agency, Universal McCann, make this
point. Mr. Karpenko exchanged text messages with a Universal McCann employee asking, “do
15
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 17
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 16 of 21 PageID# 5458
we do much advertising on third-party web sites, not Twitter/FB?” Ex. 24 (Karpenko Dep. Ex.
35). Mr. Karpenko asks the UM employee to give an example of a “third party site” because, as
he testified, “I didn’t necessarily understand what third-party site would mean to everyone and
was looking from the perspective of what UM might consider the term third-party site.” Id. Mr.
Karpenko testified he was “looking for more of an educational perspective from someone in the
media world of what they felt third party might mean.” Ex. 21 (Karpenko Dep. 98:1-5). The
UM employee also did not know what the term meant, stating, “Funny I don’t really know what
that term refers to?” Ex. 24 (Karpenko Dep. Ex. 35).7 These exchanges are evidence that
industry participants–whose views matter for purposes of defining the relevant antitrust
market–do not view the relevant antitrust markets in the way Plaintiff has alleged.
Further, in Exhibit 33 to the Karpenko deposition, the witness explains that their
advertising is “acquired through our media agency through USPS.” Ex. 13. This unvarnished
explanation, untainted by any lawyer preparation, is highly relevant to whether the FAAs are
indirect purchasers foreclosed from recovering damages under federal antitrust law. Google
therefore has reason to believe that other emails wrongly withheld as privileged contain similar,
unvarnished views of how digital ads are purchased—i.e., not directly from Google—which
directly undermines Plaintiff’s claim to be direct purchasers under the antitrust laws. Google has
a substantial need for these unvarnished views, untainted by attorney preparation; there is no
substantial equivalent. Subsequent to attorney preparation, witnesses have offered far different
answers than the plain admission of the kind reflected in Mr. Karpenko’s email. See, e.g., Ex. 20
7
In the very same text message thread, Mr. Karpenko writes, “I will send an email to you and
Michael. I won’t really provide the why for context.” Ex. 24 (Karpenko Dep. Ex. 35). The
government has clawed back the very email that Mr. Karpenko sent to the UM employees
referenced in his text during the deposition, and which the Court should readily determine
through in camera review is not privileged, just as Google lawyers determined when selecting
the document for use in deposition.
16
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 18
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 17 of 21 PageID# 5459
(Owens Tr. 221:20-222:2) (Q: “Did the navy purchase any display advertising directly from
Google?” McBirney: “Objection. Asked and answered. Calls for a legal conclusion. Lack of
foundation.”
A: “The Navy purchased advertising from Google via our contract with
VMLY&R.”).
Google has no way to obtain these documents or this testimony without undue hardship.
Plaintiff fails to appreciate that the limitation on the number of depositions in this case and the
expedited fact discovery period are precisely why Google is unable “to secure the substantial
equivalent of the materials by alternate means without undue hardship.” In re Grand Jury
Proceedings, 102 F.3d at 750.
Booz Allen, which Plaintiff relegates to a footnote, is directly on point. There, the court
acknowledged that the party seeking discovery of documents over which the government
asserted work product had the opportunity to take depositions, but noted that “a deposition’s
usefulness may be limited in this context without the requested documents,” and stated that “the
breakneck speed of this litigation has diminished the availability of alternative sources for this
information.” Booz Allen, 2022 WL 3921019, at *2.8 Multiple witnesses deposed to date have
failed to recall the time, place, or manner of relevant communications with government lawyers
absent any documents that could potentially aid in their recollection.
Likewise, Federal Election Commission supports Google’s arguments, and that is why
Plaintiff fails to address it. There, the court affirmed that a party was “unable without undue
hardship to obtain the substantial equivalent of the materials by other means,” in light of the
“limit on depositions in the D.C. litigation combined with the potential that the deponents might
8
Plaintiff’s claim that this case is distinguishable because the documents would have served as
key exhibits to the witness’s testimony undermines Plaintiff’s claim. Google is challenging the
clawback of documents that did serve as key exhibits during deposition examinations, and were
relevant to the testimony that Plaintiff has also improperly clawed back. E.g., Lion Gables
Residential Trust, 2010 WL 2483613, at *9 (testimony cannot be protected work product).
17
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 19
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 18 of 21 PageID# 5460
not be able to recall sufficient detail regarding meetings that took place at least five years ago.”
Fed. Elec. Comm’n v. Christian Coal., 178 F.R.D. 456, 466-67 (E.D. Va. 1998). In that case, the
parties were “allowed to take up to fifty depositions in the underlying litigation,” which is almost
double the number of depositions each party may take in this case.
Moreover, FAA witnesses have already demonstrated their inability to recall with
sufficient detail communications that took place during the late 2022 - early 2023 time period.
E.g., Ex. 14 (Oliphant Dep. 60:2-14, 62:10-17, 69:4-9 (claiming not to recall any conversations
with DOJ or whether she was aware of any investigation the antitrust division was doing prior to
January 2023); id. at 71:8-18 (claiming not to recall receiving any requests to collect documents
from the antitrust division)); Ex. 21 (Karpenko Dep. 69:3-7 (claiming not to recall having
conversations with anyone from OIG with respect to digital ad spend by the postal service after
January 9, 2023); id. at 130:4-13 (claiming not to recall whether he had other conversations with
his ad agency contact, but suggesting such conversations may have been produced).
III.
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING THE
COMMUNICATIONS AT ISSUE ARE PROTECTED BY THE DELIBERATIVE
PROCESS PRIVILEGE.
A.
Plaintiff Has Not Demonstrated that the Communications At Issue Reflect
Any Agency Employee’s Expression of Their Opinion.
Plaintiff fails to support with any evidence its claim of deliberative process privilege.
Nothing in the declaration of Mr. Wolin suggests that anything in the documents that Google
seeks “contains an employee’s personal views or explain how disclosure of the requested factual
information would hinder frank and independent discussion regarding any decision” on whether
to file suit or what the complaint should say. Booz Allen , 2022 WL 3921019 at *2. Again, just
the opposite: Mr. Wolin’s sworn statement is that these communications “were relevant inputs
into the decisional process within the Antitrust Division as to the scope and contents of our
18
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 20
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 19 of 21 PageID# 5461
complaint against Google.” Wolin Decl. ¶ 8. In other words, the facts gathered in the course of
ATR’s investigation from the FAAs played a role in the ultimate decision making, but those facts
are not in and of themselves any employee’s “personal views” and those facts in and of
themselves would not “hinder frank and independent discussion.” Simply stated, the deliberative
process privilege does not protect “relevant inputs” that are not an agency employee’s
“policy-oriented judgment.” Ethyl Corp., 25 F.3d at 1248 (“the privilege does not protect a
document which is merely peripheral to actual policy formulation; the record must bear on the
formulation or exercise of policy-oriented judgment”).
B.
Plaintiff Incorrectly Treats the Deliberative Process Privilege as an Absolute
Privilege.
Plaintiff treats deliberative process as an absolute privilege, but it is not. A “court may
order disclosure after balancing ‘the public interest in nondisclosure with the need for the
information as evidence,” and finding defendants showed a compelling need for disclosure even
“assuming without deciding the Government has the right to assert the privilege.” Booz Allen,
2022 WL 3921019 at *2. In applying this test, courts consider four factors: (1) relevance of
evidence; (2) availability of alternative evidence on the same matters; (3) government’s role in
the litigation; and (4) the extent to which disclosure would hinder frank and independent
discussion regarding contemplated policies and decisions. Id. And Plaintiff ignores that where,
as here, the government is a party to the litigation in which disclosure of the requested
information is sought, the balance tips in favor of disclosure. E.g., id. (“Where the government
is a party to a case, it has a more central role in the litigation which weighs in favor of disclosure.
Here, the Department of Justice is not just a party but the plaintiff, which weakens the strength of
its privilege claim.”).
Plaintiff does not support legally or factually that, based on the balancing test, ATR’s
19
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 21
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 20 of 21 PageID# 5462
interest in nondisclosure outweighs the public interest in disclosure. Plaintiff simply argues that
Google could get the same information by deposing agency employees “in the standard course of
discovery.” Opp. at 23. This is the precise argument that ATR made and the court rejected in
Booz Allen.
In that very recent case (ignored by Plaintiffs) involving this same Antitrust
Division, the court ordered disclosure of information relevant to market definition because there,
like here, the requested communications contain facts, as opposed to any employee’s “personal
views,” was relevant, “the breakneck speed of the litigation diminished the availability of
alternative sources for this information,” and “the Department of Justice is not just a party, but
the plaintiff, which weakens the strength of the privilege claim.” 2022 WL 3921019, at *2.
And, the final factor–whether frank and independent discussions would be hindered–weighed in
favor of disclosure because the documents at issue were “unmoored from any given employee’s
personal views.” Id. at *3.
CONCLUSION
For the foregoing reasons, Google’s motion to compel should be granted.
20
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
PDF Page 22
Case 1:23-cv-00108-LMB-JFA Document 364-1 Filed 08/31/23 Page 21 of 21 PageID# 5463
Dated: August 24, 2023
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
eric.mahr@freshfields.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street, NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
Counsel for Defendant Google LLC
Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite 501
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
craig.reilly@ccreillylaw.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-1047
Telephone: (202) 223-7300
Facsimile (202) 223-7420
kdunn@paulweiss.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA 94105
Telephone: (646) 432-5100
Facsimile: (202) 330-5908
mdearborn@paulweiss.com
Erin J. Morgan (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3387
Facsimile: (212) 492-0387
ejmorgan@paulweiss.com
21
UNREDACTED VERSION FILED PURSUANT TO COURT ORDER DOC. 362
Back to 
