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)
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EXHIBIT FILED UNDER SEAL
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
__________________________
:
UNITED STATES OF AMERICA, :
et al.,
:
:
Plaintiffs
:
:
v.
: No.
:
GOOGLE, LLC,
:
:
Defendants.
:
__________________________:
1:23-cv-
Friday, August 18, Video Deposition of COL. JOHN HORNING,
taken at the Law Offices of Paul, Weiss,
Rifkind, Wharton & Garrison LLP, 2001 K St NW,
Washington, DC, beginning at 9:34 a.m. Eastern
Standard Time, before Ryan K. Black, Registered
Professional Reporter, Certified Livenote
Reporter and Notary Public in and for the
District of Columbia
Job No. CSVeritext Legal Solutions
800-567-
FILED PURSUANT TO COURT ORDER DOC.
973-410-4098Page 3 PageID#
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A P P E A R A N C E S:
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
BY: JIMMY MCBIRNEY, ESQ.
CHASE PRITCHETT, ESQ.
ALVIN CHU, ESQ.
MARK SOSNOWSKY, ESQ. - Via Zoom
KATHERINE CLEMONS, ESQ - Via Zoom
450 5th Street, N.W
Washington, DC 202.514.jimmy.mcbirney@usdoj.gov
chase.pritchett@usdoj.gov
alvin.chu@usdoj.gov
mark.sosnowsky@usdoj.gov
katherine.clemons@usdoj.gov
Representing - The United States of America
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP,
BY: MARTHA L. GOODMAN, ESQ.
LEAH HIBBLER, ESQ.
2001 K St NW,
Washington, DC
202.223.mgoodman@paulweiss.com
lhibbler@paulweiss.com
Representing - Google LLC
ALSO PRESENT:
Glenn Fortner - Legal Videographer
Major Mohamed Al-Darsani - United States Army
Edwin Farley - USDOJ Intern
Page INDEX
TESTIMONY OF: COL. JOHN HORNING
PAGE
By Ms. Goodman.............................6, By Mr. McBirney...............................EXHIBITS
EXHIBIT
DESCRIPTION
PAGE
Exhibit 61 a privilege log dated June 26th,
2023, provided by the United
States DOJ.......................Exhibit 62 a document Bates Numbered
ARMY-ADS336340 through 336638...
Exhibit 63 a document Bates Numbered
ARMY-ADS329948 through 329970...Exhibit 64 a document Bates Numbered
ARMY-ADS187047 through 187077...
Page
THE VIDEOGRAPHER: Good morning.
We're going on the record at 9:34 on August 18th,
2023. Please note that the microphones are
sensitive and may pick up whispering and private
conversations. Please mute your phones at this
time. Audio and video recording will continue to
take place unless all parties agree to go
off the record.
This is Media Unit 1 of the
video-recorded deposition of Colonel John Horning
in the matter of United States, et al., v. Google
LLC. The location of the deposition is Paul
Weiss.
My name is Glenn Fortner, representing
Veritext, and I'm the videographer. The court
reporter is Ryan Black from the firm Veritext.
I'm not related to any party in this action, nor
am I financially interested in the outcome.
If there are any objections to
proceeding, please state them at the time of your
appearance. Counsel and all present, including
remotely, will now state their appearances and
affiliations for the record beginning with the
noticing attorney.
MS. GOODMAN: Martha Goodman, from the
Page
law firm Paul Weiss, on behalf of Google LLC.
I'm joined by my colleague Leah Hibbler.
MR. MCBIRNEY: Jimmy McBirney, with the
Unites Staes Department of Justice, on behalf of
the United States and the witness.
MR. PRITCHETT: Chase Pritchett, on
behalf of the United States.
MR. CHU: Alvin Chu on behalf of the
United States.
MR. SOSNOWSKY: Mark Sosnowsky on behalf
of the United States.
MAJOR AL-DARSANI: Moe Al-Darsani,
United States Army.
MR. FARLEY: Edwin Farley, United
States.
THE VIDEOGRAPHER: Okay. Will the court
reporter please swear in the witness and then
counsel may proceed.
MR. CHU: Oh, also, just to let you
know, I have Katherine Clemons -- she'll be --
from the DOJ that will also joining in and out.
*
*
*
Whereupon --
COL. JOHN HORNING,
called to testify, having been first duly sworn
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or affirmed, was examined and testified as
follows:
* * *
EXAMINATION
BY MS. GOODMAN:
Q. Good morning, Colonel Horning.
A. Good morning.
Q. Have you been deposed before?
A. I have not.
Q. Do you understand your purpose here
today is to provide truthful and accurate
testimony to the best of your testimony and
knowledge?
A. I do.
Q. Is there any reason you cannot do that
today?
A. No.
Q. Okay. Because the court reporter is
writing everything down, it's important that we
not talk over one another, so please let me
finish my question before you begin your answer.
Okay?
A. Okay.
Q. And because he's again taking a written
transcript, the -- you have to speak verbally as
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opposed to with sounds like uh-huh or huh-uh
so that it can be accurately reflected in the
transcript. Okay?
A. I understand.
Q. If you don't understand my question,
please let me know. Okay?
A. Yes.
Q. Otherwise I assume you'll understand.
Okay?
A. Yes.
Q. In the normal course of your work, do
you consider the Department of Justice Antitrust Division to be your counsel?
A. I'm not sure that I'm qualified to
answer, within the legal constructs of the U.S. government, who our actual counsel is or is not. Q. I'm not asking for you to provide a
legal opinion. I'm asking for your personal
understanding and your considerations, your
personal opinions. So do you consider the
Department of Justice Antitrust Division to be your counsel in the normal course of your work? A. I don't believe that I have a personal
opinion on who our counsel is. I only know
what's -- yeah. I -- I don't have an opinion on
that.
Q. Have you ever requested legal advice
from the Department of Justice Antitrust
Division?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
MS. GOODMAN: You're asking him -- the
information that would appear on a privilege log
with a request for legal advice that's required
for you as the privilege -- the party asserting a
privilege to establish the proprietary of the
privilege and meet your burden of proof and
persuasion that the privilege applies, you're
instructing him not to answer that question?
MR. MCBIRNEY: You are asking the
witness whether he has requested legal advice
from the Department of Justice Antitrust
Division?
MS. GOODMAN: Yeah.
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: No.
BY MS. GOODMAN:
Q. To what extent has anybody at the
Page
Department of Justice ever asked you to provide
information about the Army's advertising
business?
MR. MCBIRNEY: Objection. Privileged.
Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you going to follow that
instruction, sir?
A. Yes.
Q. Okay. When did you first have any
conversations with anybody at the Department of
Justice Antitrust Division?
A. As best that I can recall, our first
interaction would have been in early spring of
2023 or late winter. I -- I can't recall the
specific date.
Q. So sometime between late winter of what
year?
A. 2023.
Q. Okay. And early spring of 2023?
A. Correct.
Q. Okay. What was your understanding
of the reason for your conversations with the
Department of Justice Antitrust Division?
MR. MCBIRNEY: Objection. Calls for
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privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Has the Department of Justice ever
requested information about digital advertising
purchases by the United States Army?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Do you -- in the course of your work,
do you routine -- do you field requests for
information from the Department of Justice on
an ordinary basis?
A. I do not.
Q. Are you aware of anybody else within
the AEMO who re -- regularly fields requests for
information from the Department of Justice?
A. I'm not personally aware of anything
like that.
MS. GOODMAN: I'm marking Exhibit 61, a
Page
Page
privilege log dated June 26th, 2023, provided by
the United States in this litigation. I'm
handing it to the witness.
(Exhibit No. 61, a privilege log dated
June 26th, 2023, provided by the United States
DOJ, was introduced.)
BY MS. GOODMAN:
Q. Now, Colonel Horning, this is not a
document I would normally show a percipient
witness, but I'm essentially hamstrung and must
do so here today for reasons that don't pertain
to you, per se. But I would like you to turn to
Page 11 of this document.
Let me know when you're there.
A. Okay. I am on Page 11.
Q. Okay. And if you look back at Page 1,
actually, you see there is a heading at the top
that indicate what each of the columns are.
A. Okay.
Q. Okay. So you see that in the, one, two,
three, four, five -- fifth column over on Page
23, which is the To column, your name is
listed -A. On? I'm sorry. Could you say what page
again? I thought you said Page 23.
Q. I'm sorry. I meant Page 11.
A. Okay.
Q. It's line entry 23 on Page 11.
A. Okay.
Q. So one, two, three, four, five columns
over, you're listed in the To column. Do you see
that?
A. I do.
Q. And do you see the date in the few-more
columns over of January 5th, 2023?
A. Okay.
Q. Does that refresh your recollection of
the time period where you first had conversations
with the Department of Justice Antitrust
Division?
A. Can you help me understand what it is
I'm actually looking at here?
Q. Yeah. So this is what's called a
privilege log.
A. I'm not familiar with what one of those
are.
Q. Okay. A privilege log is a
document that parties are required to provide
to the opposing side when they're asserting
attorney-client or attorney work product or other
privilege over communications -A. Okay.
Q. -- that they are not providing to
the other side in litigation. So that's what a
privilege log is. And so by virtue of this
entry, on Line 23 the United States is asserting
a privilege, as described in the last column, -A. Okay.
Q. -- over your communication with
Mr. Wessels and others -A. Okay.
Q. -- listed on this page.
A. Okay.
Q. Do you understand now?
MR. MCBIRNEY: Objection. Assumes facts
not in evidence. Form of the question.
BY MS. GOODMAN:
Q. Do you understand -- do you have an
appropriate understanding now of what a privilege
log is?
A. I do understand what this document is
now.
Q. Okay. So having now looked at this
document and understanding what it is, does it
refresh your memory at all that -- as to the
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timing of your conversations with the Antitrust
Division?
MR. MCBIRNEY: Objection; foundation,
and to form.
THE WITNESS: It does not refresh my
recollection, but I have no reason to believe
this is not true.
BY MS. GOODMAN:
Q. Okay. And you see in the column next to
the date, which is the subject -- if you look
back at Page 1, you can see that that is the
subject column.
A. Yes.
Q. Okay. Can you read the subject to me
here?
A. The subject on Item 23 of the privilege
log says, brackets, "external DOJ-Army interview
on Google-Meta advertising products used by DOD."
Q. Okay. Do you recall who was interviewed
-- who at the Army was interviewed on Google-Meta
advertising products used by DOD on or around
this date of January 5th, 2023?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: I do not recall.
Page
Page
BY MS. GOODMAN:
Q. Okay. Do you recall yourself being
interviewed on this topic?
A. I recall being interviewed, but I do not
recall that this was the date for it.
Q. Okay. Do you recall who interviewed
you?
A. I only recall -- I didn't -- there was
likely more than one person. I only recall one
by name.
Q. Who do you recall by name?
A. Mr. Chase Pritchett.
Q. Okay. How long did the interview last?
A. I can't be certain. I think it was,
likely, 60 to 90 minutes, perhaps.
Q. And this is a yes or no question: Did
the United States Antitrust Division lawyers
present explain to you the purpose of the
interview?
MR. MCBIRNEY: Objection. Calls for
privileged communication. Instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. What was your understanding of the
purpose of the interview?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. What facts -- strike that.
At the time reflected here on this
log, -A. Mm-hmm.
Q. -- January 5th, 2023, were you aware of
any anticompetitive conduct on the part of Google
affecting the Army's advertising -MR. MCBIRNEY: Objection.
BY MS. GOODMAN:
Q. -- practices?
MR. MCBIRNEY: Objection. Calls for a
legal conclusion.
BY MS. GOODMAN:
Q. You may answer.
A. I'm not sure that I have -- am
qualified to know or would have been made
available any infor -- or would have had any
information available to me on that topic.
Q. Around this time of January 5th, 2023,
were you aware of any conduct on the part of
Google that was causing the Army to pay prices
for advertising that were too high?
A. I had not been made aware of anything
like that at the time frame that you're asking.
Q. Okay. How about prior to the time frame
that I'm asking?
A. Not that I can recall, no.
Q. Okay. What's your understanding of the
word anticompetitive?
MR. MCBIRNEY: Objection. Calls for
legal conclusion, and foundation.
THE WITNESS: I only know the common
language terminology. I don't understand the
actual legal definitions or implications.
Anticompetitive: Not competitive.
BY MS. GOODMAN:
Q. So what is your common language
understanding of the word anticompetitive?
A. I understand it in the context of
business practices meaning not adhering to a
competitive, fair practice.
Q. Okay. So using your definition of
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anticompetitive, which is in the context of
business practicing -- 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?
MR. MCBIRNEY: Object to the form of the
question.
THE WITNESS: I was not aware.
BY MS. GOODMAN:
Q. At the time of this discussion with the
DOJ, what was your understanding, if any, as to
the possibility of litigation?
MR. MCBIRNEY: Objection. Calls for
privileged information. You can answer that
question if you can answer it without divulging
any privileged information. If you cannot, then
I'll instruct you not to answer.
THE WITNESS: Can you repeat the
question?
BY MS. GOODMAN:
Q. 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?
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MR. MCBIRNEY: Same instruction. If
you can answer that without disclosing privileged
information, you may. Otherwise, I instruct you
not to answer.
THE WITNESS: None.
BY MS. GOODMAN:
Q. Around the time of this meeting
-- strike that.
Around the time of these communications
with the Department of Justice about Google-Meta
advertising products used by DOD, what were your
personal views on having to participate in those
discussions?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Can you clarify the
question to the extent what was my personal view
of being involved in a meeting?
BY MS. GOODMAN:
Q. Yes. What was your personal view of
being involved in a meeting or discussions with
the Antitrust Division about Google advertising
-- Meta advertising products used by DOD?
MR. MCBIRNEY: Same objection. And
caution the witness not to divulge confidential
information in your answer.
MS. GOODMAN: Confidential information?
MR. MCBIRNEY: I'm sorry. Privileged
information.
MS. GOODMAN: Thank you.
THE WITNESS: I have no personal opinion
about attending a meeting. As a soldier, I
received an order. I do what I'm told.
BY MS. GOODMAN:
Q. Okay. From whom did you receive an
order, if anyone?
A. From AEMO leadership.
Q. Who in AEMO leadership?
A. As best as I re -- can recall, the AEMO
chief of staff.
Q. Who's that?
A. Colonel Matt Weinrich.
Q. Why did Mr. Weinrich -- I'm sorry,
Colonel Weinrich order you to participate in this
meeting?
MR. MCBIRNEY: Objection. Calls for
speculation.
THE WITNESS: Yeah. I -- I can't answer
as to why he chose me.
BY MS. GOODMAN:
Q. Okay. Did he explain to you why he
chose you?
A. No.
Q. When did he order you to -- to
participate in these discussions?
A. I can't recall a -- a specific date. As
best as I can recall, it was via an email saying
that there was going to be individuals who needed
to ask questions and I should make myself
available, but I don't remember when.
Q. Okay. Anything else you remember about
that email and what it said?
A. No, I don't.
Q. Did you have any discussions outside of
email with Colonel Weinrich about this request?
A. No.
Q. And setting aside the fact that you
received an order to participate in discussions
with the Department of Justice on this topic,
is it your testimony you had no personal view
whatsoever as to your participation in such
meetings?
MR. MCBIRNEY: Object to the form and
asked and answered.
THE WITNESS: Yeah. I have no personal
opinion on -- on attending the meeting.
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ads. And I -- I certainly -- I can't recall a
specific instance that would answer your question
without it being a little more specific.
BY MS. GOODMAN:
Q. Okay. Have you asked anybody at the
advertising agency DDB to give you volume of ads
purchased, cost, cost of such ads, dates of such
purchases, vendors, whether it be Google or
some other vendor through which the ads were
purchased, as to the Army's -- and I'll narrow
it further -- digital advertising purchases?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if you're able to answer
that question without disclosing privileged
communications from counsel, you may do so. If
you are not, then I instruct you not to answer.
THE WITNESS: Okay. On the advice of
counsel, I'm not going to answer that question.
BY MS. GOODMAN:
Q. Okay. To your knowledge -- has anybody
at AEMO, so not yourself, but anybody else with
whom you work or know, to your knowledge has
anybody else at AEMO asked the advertising agency
DDB to give you -- to give AEMO volumes of ad
purchased, cost, dates, vendors or other
Page
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information in that nature regarding the Army's
digital advertising purchases?
MR. MCBIRNEY: I object to the form of
the question and instruct the witness that if
you can answer the question without disclosing
privileged information, you may do so. If you
cannot, then I instruct you not to answer.
THE WITNESS: To the best of my
knowledge, yes.
BY MS. GOODMAN:
Q. Okay. Who at AEMO, to your knowledge,
has asked DDB for such information?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if you can answer that
question without disclosing privileged
information, you may do so. Otherwise,
instruct the witness not to answer.
THE WITNESS: Okay. On the advice of
counsel, I'm not going to answer that question.
BY MS. GOODMAN:
Q. To your knowledge -- well, strike that.
Has anybody at DDB provided you,
personally, with information about the Army's
digital advertising purchases of the kind that we
just described, dates, cost, vendor?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if he can answer that
without disclosing privileged information, you
may do so. Otherwise, I would instruct you not
to answer.
THE WITNESS: Can you repeat the
question?
BY MS. GOODMAN:
Q. Has anybody at DDB provided you
personally with any information about the Army's
digital advertising purchases of the kind that we
just described, such as dates of purchase, cost,
vendor?
MR. MCBIRNEY: Same instruction.
THE WITNESS: Not that I can recall.
BY MS. GOODMAN:
Q. Okay. To your knowledge, has anybody at
DDB provided anybody else, other than yourself at
AEMO, with information about the Army's digital
advertising purchases of the kind that we just
described, such as dates of purchase, cost or
vendor?
MR. MCBIRNEY: Object to the form of the
question. Calls for speculation. And instruct
the witness that if you can answer the question
without disclosing privileged information, you
may do so. If not, I would instruct you not to
answer.
THE WITNESS: I have no personal
knowledge of that occurring.
BY MS. GOODMAN:
Q. Okay. Do you have knowledge other than
personal knowledge of that occurring?
MR. MCBIRNEY: Objection; foundation.
Calls for speculation. And same instruction.
THE WITNESS: I don't know what
"knowledge other than personal" means.
BY MS. GOODMAN:
Q. Okay. At the time that you first became
involved in discussions with the Department of
Justice in the late winter 2023 time period, did
you consider their inquiries to be a routine
request for information?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: At the time I first became
aware, I had no indication the purpose at all.
BY MS. GOODMAN:
Q. Okay. Did you have a -- did you have
a view -- so setting aside the Department's
purpose, which I'm not asking about, I'm asking
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about your personal reactions to receiving
an inquiry -- inquiry from the Department of
Justice, how did you view it? As a routine
request for information? As fact-gathering?
What was your personal view of the nature of the
inquiry?
MR. MCBIRNEY: Object to the form of the
question and vague.
THE WITNESS: I viewed it as a routine
request for information.
BY MS. GOODMAN:
Q. Okay. Has the Department of Justice
asked you to get information from the advertising
agency DDB?
MR. MCBIRNEY: Obj -BY MS. GOODMAN:
Q. Yes or no.
MR. MCBIRNEY: Objection. Calls for
privileged information. I instruct the witness
not to answer.
THE WITNESS: I'm not going to answer
the question on advice of question.
MS. GOODMAN: That question is
completely proper because it goes to your
assertion to which you bear a burden of proof and
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persuasion as to your claim of privilege.
MR. MCBIRNEY: You are asking
the witness to disclose communications of a
particularized nature from counsel, which is
clearly work product. So that instruction is
entirely proper, and I'm instructing the witness
not to answer.
BY MS. GOODMAN:
Q. Okay. Has the Department of Justice -anybody at the Department of Justice asked you
to participate in any conversations with your
advertising agency?
MR. MCBIRNEY: Same objection. Instruct
the witness not to answer.
You are asking the witness for
particular communications from counsel.
MS. GOODMAN: No. They're very
generalized communications. We've talked about
the term "information" being very generalized.
MR. MCBIRNEY: Even if they're
generalized, they're communications from counsel.
MS. GOODMAN: Of the kind that appear on
privilege log. This is exactly what you have to
put on a privilege log.
BY MS. GOODMAN:
Q. So, Colonel Horning, I'll ask you again
so that I can get an answer or your -- well, get
a clean record, I should say.
Has anybody at the Department of
Justice asked you to get any information from
your advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged communication. Instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Okay. Has anybody at the Department of
Justice asked you to have any conversations with
any person from your advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Okay. To your knowledge, has anybody
at the Department of Justice asked any other
employee of AEMO to obtain information from the
advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. To your knowledge, has anybody at the
Department of Justice asked any other employee of
AEMO to have any conversations with any person
from the advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged information, and instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Are you aware of any investigation by
the Department of Justice into Google?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. When did you first become aware of that
investigation?
MR. MCBIRNEY: I'm going to instruct the
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witness that if you can answer that question
without disclosing privileged information you may
do so. If you cannot, then I instruct you not to
answer.
THE WITNESS: I'm not going to answer
that question on the advice of counsel.
BY MS. GOODMAN:
Q. Okay. Prior to late winter 2023, as
we've discussed, had anybody from anyone within
the government reached out to you inquiring about
the Army's digital advertising purchases?
MR. MCBIRNEY: Objection; vague and
instruct the witness that if you can answer
that question without disclosing privileged
information, you may do so. If you cannot,
then I instruct the witness not to answer.
THE WITNESS: I don't recall any
communication previous to what we already
discussed.
BY MS. GOODMAN:
Q. Okay. And how about prior to late
winter 2023, did you have any outreach from
anybody within the United States government about
any anticompetitive conduct on the part of Google
affecting the United States Army? And when I use
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the word anticompetitive, I'm using your
definition?
MR. MCBIRNEY: Objection; vague.
Instruct the witness that if you can answer
that question without disclosing privileged
communication you may do so. If not, I instruct
the witness not to answer.
THE WITNESS: I cannot recall a
time prior to then when anyone from the U.S.
government reached out to me on any topic related
to any practice of any vendor or company involved
in advertising.
BY MS. GOODMAN:
Q. And that includes Google?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: My recollection, as
previously stated, would include Google.
BY MS. GOODMAN:
Q. Okay. Have you received a litigation
hold?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. When did you receive a litigation hold,
if any?
MR. MCBIRNEY: Objection. Assumes
facts not in evidence and calls for privileged
information. Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Who sent you a litigation hold, if any?
MR. MCBIRNEY: Same objections.
Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. When did you first become aware that
your participation in this lawsuit would be re -necessary?
MR. MCBIRNEY: Objection. Assumes facts
not in evidence. Vague.
THE WITNESS: I first became aware that
I would be a participant within the last two
weeks.
BY MS. GOODMAN:
Q. Prior to the last two weeks, have you
assisted anybody in the Department of Justice
with gathering information related to this
litigation?
MR. MCBIRNEY: Objection; vague and
calls for privileged information. Instruct the
witness not to answer.
BY MS. GOODMAN:
Q. Have you gathered any information in
order to provide discovery to Google in this
litigation?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: No.
BY MS. GOODMAN:
Q. Are you aware one way or another if your
emails have been searched or produced to Google?
MR. MCBIRNEY: You can answer.
THE WITNESS: I'm not aware if it has or
has not occurred.
BY MS. GOODMAN:
Q. Okay. Do you recall providing any
information for the purpose of answering written
questions called interrogatories in this
litigation?
MR. MCBIRNEY: Ob -- you can answer that
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uses more than one provider of display
advertising?
A. I do not know who or how many are even
available. I don't know the answer to that.
Q. Okay. Let's go to Estimated Potential
for Efficient ROI. Have you formed an assessment
of Google's potential for efficient ROI?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Again, any assessment
would be not of Google as a whole, but of
depending on the channel product itself.
BY MS. GOODMAN:
Q. Okay. So let's talk first about Search.
What is your view on the potential for efficient
ROI with respect to Search?
A. The information that I've seen
throughout our quarterly MMMs has indicated or
given me the impression that Search has been an
efficient channel for us.
Q. Same question as to YouTube.
A. Generally speaking, as I can best recall
from the MMM reports, YouTube tends to perform
fairly well comparatively on an efficiency
standpoint relative to the various channels in
the marketing mix.
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Q. And how about with respect to Discovery?
A. I don't know the answer to that one.
Q. Okay. And how about with respect to
display?
A. I don't know which all partners may or
may not be involved in display. I know that our
MMM results have shown that display, in general,
has not performed at the same efficient rate as
other options available to us.
Q. Okay. What is your assessment of
Google's ability to maintain expected levels of
brand safety?
MR. MCBIRNEY: Objection; vague and
foundation.
THE WITNESS: I think there's a measure
of risk assessment involved in that that we have
to constantly assess and reassess in light of
current market conditions and activities or
events in the information sphere and that may
change from time period to time period.
BY MS. GOODMAN:
Q. And does Google, in your view, help
protect the brand safety of the Army?
MR. MCBIRNEY: Objection; foundation.
THE WITNESS: As a platform for the
distribution of our message, I don't see how
Google has a role in protecting, considering it's
available to so many. I wouldn't think they have
a role in protecting anybody's. That's our
responsibility to look at and assess where any
distribution platform, channel, site that we may
be -- any -- any of those things, any of these
actual media networks or properties are a fit for
brand safety.
BY MS. GOODMAN:
Q. I see.
A. So I don't think Google is a yes or a no
specifically.
Q. Do you view Google as a risky
distribution channel for the brand safety of the
Army?
MR. MCBIRNEY: Objection; vague and
foundation.
THE WITNESS: During the time that I've
been at AEMO, I'm certainly not aware of anything
that would give me pause or concern with respect
to working with Google being a risk to brand
safety.
BY MS. GOODMAN:
Q. And then the last criteria, flexible
cancellation terms adherence to industry-standard
contractual out clauses, do you have any ability
to assess Google's flexible cancellation terms,
one way or another?
A. I do not.
Q. Okay. Do you recall attending a Google
Marketing Live event?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Can you be specific about
the timing?
BY MS. GOODMAN:
Q. Sure can. Give me a sec.
Summer of 2022.
A. Is there a document that I can review?
Q. I do not have it, no. I'm sorry.
A. I have recollection of attending events
with Google, but I can't attest to the date,
specifically.
Q. Okay. What -- how many events do you
recall attending with Google?
A. Two.
Q. What were those two events that you are
recalling?
A. One was in Chicago at the local office
-- I assume to be the local office of -- of
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Google. And the other was in California at the
headquarters.
Q. Okay. Starting with the first event you
recall at the local office of Google, what was
that event? What -- what took place at that
event?
A. That was an educational event hosted
by Google to inform Army marketers on Google
products, how other customers have been able to
be successful or not, TTPs or what we say in the
Army, tactics, technique, procedures, meaning
just generally how you go about things, so to
share with us information about how we might
either perform better or continue to perform
well or use products effectively.
Q. Did you find that event informative?
A. Yes.
Q. Did you find it useful?
A. I found the discussion stimulating.
I can't recall me specifically going back and
-- and then using something from there in the
course of my routine duties.
Q. Did that educational event provide any
value, from your point of view, to the Army?
A. I would say in that knowledge and
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education is always valuable, I certainly
couldn't ascribe a particular quantity or figure
or dollar figure of value.
Q. Sure. But the knowledge and education
that Google provided you at that event, did you
consider that valuable?
MR. MCBIRNEY: Objection. Asked and
answered.
THE WITNESS: At the time, I felt
the information and the conversations that it
generated were helpful to the marketing team.
BY MS. GOODMAN:
Q. Do you know who from Google was at that
event? Do you recall?
A. There were a number of presenters, and,
frankly, I don't remember everyone's name.
Q. Do you remember anybody's name?
A. No.
Q. Okay.
A. I know that there was an individual who
had government in their portfolio. But as far
as all their names, I -- unfortunately, I don't
recall.
Q. Is there anything else that you, sitting
here today, recall about that event?
A. I mean, I generally recall the room and
that we had slides and that there were a number
of presenters on a number of topics. I don't
recall what all the topics were specifically,
but -Q. Do you recall any of the topics?
A. No, I don't.
Q. Okay. Let's turn to the event at the
California -- in California at HQ -- was that at
Google's headquarters?
A. It was.
Q. Okay. And did other marketing
professionals from the other branches of the
military attend that, to your recollection?
A. Yes.
Q. Okay. What -- what was the purpose of
that event?
A. I was attending on behalf of
Major General Fink. My understanding of the
purpose, it was similar to the earlier meeting
in Chicago, but a year later and, more broadly,
participation from the other services, whereas
the first was Army only. And this had other
services, all, in my perception, with the same
intent to educate the audience on certain aspects
of Google's product line and give examples of
how some of their customers have used them
effectively.
Q. Did you find that event to be
informative?
A. I did. And I found it useful because
it's one of the first events I was at where the
other services were also there, and so it also
enabled some cross-service discussion on
challenges, successes.
Q. Did you find that event to provide value
to the Army?
A. It did in that I actually was able to
provide some -- or -- or put some face to names
of my counterparts in the Air Force and Navy,
which has facilitated some dialogue post that
meeting.
Q. What dialogue has that facilitated?
What dialogue has that meeting facilitated with
your counterparts in the other branches of the
armed services?
A. I'll occasionally reach out and ask
something that they may be doing or see if there
might be an opportunity for us to do something
together, or just ask questions about approaches
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they may be taking. It's never anything specific
in nature, other than general information-share.
Q. Do you recall who attended from -- who
from Google attended the event in California that
you're recalling?
A. There were a number of presenters,
and they were from different divisions,
organizations. I'm not sure how they're -Google organizations is what we would call them,
but from different areas of the business who came
and presented on various topics. Some of them
were somewhat creative in nature. Some of the
topics were more, I don't know, say analytic in
nature, I mean, although we weren't talking
about how to do regression models but some
certainly were more focused on the creative
aspect of what you might be showing and others
more about how you might be using tools. I think
-- you know, I don't know for sure -- actually, I
know I don't know the names -- yeah -- of who
presented.
Q. Okay. Do you know an individual at
Google named Sean Harrison?
A. That name is familiar to me. He might
have been one of the individuals at one of the
Page
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meetings, but I -- I don't know him and have
never had an interaction with him outside of -if that's the same person, outside of one of
those meetings.
Q. Okay. So sitting here today, can you
recall ever having any conversation with Sean
Harrison about -- about -- well, about anything?
A. Well, given that I'm not a hundred
percent sure if that's the name of the person who
I think it is, I can't say with certainty.
Q. Okay. Are you recalling a conversation
with some individual at Google, but you just
don't know that person's name?
A. I am.
Q. Okay. What conversation are you
recalling?
A. The conversation I'm recalling was on
the sidelines of the presentation in California,
where we were notified of a number of false leads
that were coming into the Army system through a
Google product, in the thousands, which obviously
would throw off a lot of our data systems in
terms of false attribution. And also,
potentially, our concern of being charged for
things that weren't really happening. And the
conversation with that individual on that topic
was focused around what he and his team were
doing to try to track down what had been
occurring. It was new, so we didn't know,
they didn't know. We just knew something was
happening.
That was the -- that was, essentially,
the crux of that discussion.
Q. Okay. The individual that you're
recalling having this conversation with, did that
person indicate to you that Google would take
steps to address the problem?
A. I don't recall if that was ever said.
But I have no reason to believe that -- most
likely, that was probably assumed on my part at
the time, that, given a business relationship,
it's generally understood, even though I don't
have access to terms of any kinds of contracts or
not, that good business partners will certainly
try to do what they can to make good or to figure
out what's been going on.
Q. And do you have any -- what -- what
-- what happened? What was the outcome of the
-- of the effort to -- to get to the bottom of
this false hit issue?
A. Yeah. I can't state with certainty,
only as I recall the information now. Because
once it was also being handled by the -- the data
team, as well, I didn't look too much more deeply
into a hundred percent technical answer of here's
what happened. But, as I recall, there was some
kind of a -- I don't know if the right term is
a bot farm, or at least some malicious intent
emanating, at least as was trackable, out of
an Asian country that I believe to be the
Philippines, if I recall correctly, but I
could be mistaken. And somehow it was getting in
through a MAC code, which is a Marketing Activity
Code, that was assigned to Google efforts. And
it was generating fake leads, or false -- or just
it was submitting leads with false names and
-- and -- and giving us the impression of an
effectiveness of whichever of the products it
was coming from. I don't recall which one.
But -- but, essentially, that was the crux of it;
we had some false leads emanating from some
malicious activity from some third country.
Q. And do you know if Google took any steps
to put a stop to that malicious activity coming
from a third country?
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for information relevant to this lawsuit?
A. I did not.
MS. GOODMAN: I reserve the remainder of
my time for this deposition based on the improper
privilege assertions made at the outset of the
deposition. So I close the dep -- I'm holding
the deposition open.
MR. MCBIRNEY: Can I get a time check?
THE VIDEOGRAPHER: We are at 5:minutes.
MR. MCBIRNEY: Okay. The government
does not agree with your position that the
deposition should remain open, but we understand
your position.
MS. GOODMAN: Okay.
MR. MCBIRNEY: Off the record.
THE VIDEOGRAPHER: Anything else for the
record?
MS. GOODMAN: Thank you, Colonel.
THE WITNESS: Thank you very much.
THE VIDEOGRAPHER: This marks the end of
the deposition of Colonel John Horning. We're
going off the record at 1753.
(Deposition concluded -- 5:53 p.m.)
Jimmy McBirney, Esq.
jimmy.mcbirney@usdoj.gov
August 21, RE: United States, Et Al v. Google, LLC
8/18/2023, John Horning (#6060378)
The above-referenced transcript is available for
review.
Within the applicable timeframe, the witness should
read the testimony to verify its accuracy. If there are
any changes, the witness should note those with the
reason, on the attached Errata Sheet.
The witness should sign the Acknowledgment of
Deponent and Errata and return to the deposing attorney.
Copies should be sent to all counsel, and to Veritext at
erratas-cs@veritext.com
Return completed errata within 30 days from
receipt of testimony.
If the witness fails to do so within the time
allotted, the transcript may be used as if signed.
Yours,
Veritext Legal Solutions
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CERTIFICATE
1 United States, Et Al v. Google, LLC
2 John Horning (#6060378)
I do hereby certify that I am a Notary
Public in good standing, that the aforesaid
testimony was taken before me, pursuant to
notice, at the time and place indicated; that
said deponent was by me duly sworn to tell the
truth, the whole truth, and nothing but the
truth; that the testimony of said deponent was
correctly recorded in machine shorthand by me and
thereafter transcribed under my supervision with
computer-aided transcription; that the deposition
is a true and correct record of the testimony
given by the witness; and that I am neither of
counsel nor kin to any party in said action, nor
interested in the outcome thereof.
ERRATA SHEET
4 PAGE_____ LINE_____ CHANGE________________________
5 __________________________________________________
6 REASON____________________________________________
7 PAGE_____ LINE_____ CHANGE________________________
8 __________________________________________________
9 REASON____________________________________________
10 PAGE_____ LINE_____ CHANGE________________________
11 __________________________________________________
12 REASON____________________________________________
13 PAGE_____ LINE_____ CHANGE________________________
14 __________________________________________________
15 REASON____________________________________________
16 PAGE_____ LINE_____ CHANGE________________________
WITNESS my hand and official seal this
21st day of August, 2023.
17 __________________________________________________
18 REASON____________________________________________
19 PAGE_____ LINE_____ CHANGE________________________
20 __________________________________________________
<%11516,Signature%>
Notary Public
21 REASON____________________________________________
23 ________________________________ _______________
24 John Horning
Date
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Page 1 United States, Et Al v. Google, LLC
2 John Horning (#6060378)
ACKNOWLEDGEMENT OF DEPONENT
I, John Horning, do hereby declare that I
5 have read the foregoing transcript, I have made any
6 corrections, additions, or changes I deemed necessary as
7 noted above to be appended hereto, and that the same is
8 a true, correct and complete transcript of the testimony
9 given by me.
11 ______________________________
12 John Horning
________________
Date
13 *If notary is required
SUBSCRIBED AND SWORN TO BEFORE ME THIS
______ DAY OF ________________, 20___.
__________________________
NOTARY PUBLIC
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Federal Rules of Civil Procedure
Rule
(e) Review By the Witness; Changes.
(1) Review; Statement of Changes. On request by the
deponent or a party before the deposition is
completed, the deponent must be allowed 30 days
after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to
sign a statement listing the changes and the
reasons for making them.
(2) Changes Indicated in the Officer's Certificate.
The officer must note in the certificate prescribed
by Rule 30(f)(1) whether a review was requested
and, if so, must attach any changes the deponent
makes during the 30-day period.
DISCLAIMER:
THE FOREGOING FEDERAL PROCEDURE RULES
ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
THE ABOVE RULES ARE CURRENT AS OF APRIL 1,
2019.
PLEASE REFER TO THE APPLICABLE FEDERAL RULES
OF CIVIL PROCEDURE FOR UP-TO-DATE INFORMATION.
FILED PURSUANT TO COURT ORDER DOC. 362Page 17 PageID#
VERITEXT LEGAL SOLUTIONS
COMPANY CERTIFICATE AND DISCLOSURE STATEMENT
Veritext Legal Solutions represents that the
foregoing transcript is a true, correct and complete
transcript of the colloquies, questions and answers
as submitted by the court reporter. Veritext Legal
Solutions further represents that the attached
exhibits, if any, are true, correct and complete
documents as submitted by the court reporter and/or
attorneys in relation to this deposition and that
the documents were processed in accordance with
our litigation support and production standards.
Veritext Legal Solutions is committed to maintaining
the confidentiality of client and witness information,
in accordance with the regulations promulgated under
the Health Insurance Portability and Accountability
Act (HIPAA), as amended with respect to protected
health information and the Gramm-Leach-Bliley Act, as
amended, with respect to Personally Identifiable
Information (PII). Physical transcripts and exhibits
are managed under strict facility and personnel access
controls. Electronic files of documents are stored
in encrypted form and are transmitted in an encrypted
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fashion to authenticated parties who are permitted to
access the material. Our data is hosted in a Tier SSAE 16 certified facility.
Veritext Legal Solutions complies with all federal and
State regulations with respect to the provision of
court reporting services, and maintains its neutrality
and independence regardless of relationship or the
financial outcome of any litigation. Veritext requires
adherence to the foregoing professional and ethical
standards from all of its subcontractors in their
independent contractor agreements.
Inquiries about Veritext Legal Solutions'
confidentiality and security policies and practices
should be directed to Veritext's Client Services
Associates indicated on the cover of this document or
at www.veritext.com.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
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UNITED STATES OF AMERICA, :
et al.,
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Plaintiffs
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GOOGLE, LLC,
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1:23-cv-00108
Friday, August 18, 2023
Video Deposition of COL. JOHN HORNING,
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taken at the Law Offices of Paul, Weiss,
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Rifkind, Wharton & Garrison LLP, 2001 K St NW,
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Washington, DC, beginning at 9:34 a.m. Eastern
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Standard Time, before Ryan K. Black, Registered
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Professional Reporter, Certified Livenote
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Reporter and Notary Public in and for the
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District of Columbia
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A P P E A R A N C E S:
UNITED STATES DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
BY: JIMMY MCBIRNEY, ESQ.
CHASE PRITCHETT, ESQ.
ALVIN CHU, ESQ.
MARK SOSNOWSKY, ESQ. - Via Zoom
KATHERINE CLEMONS, ESQ - Via Zoom
450 5th Street, N.W
Washington, DC 20530
202.514.2414
jimmy.mcbirney@usdoj.gov
chase.pritchett@usdoj.gov
alvin.chu@usdoj.gov
mark.sosnowsky@usdoj.gov
katherine.clemons@usdoj.gov
Representing - The United States of America
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP,
BY: MARTHA L. GOODMAN, ESQ.
LEAH HIBBLER, ESQ.
2001 K St NW,
Washington, DC
202.223.7341
mgoodman@paulweiss.com
lhibbler@paulweiss.com
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Representing - Google LLC
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ALSO PRESENT:
Glenn Fortner - Legal Videographer
Major Mohamed Al-Darsani - United States Army
Edwin Farley - USDOJ Intern
Page 3
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TESTIMONY OF: COL. JOHN HORNING
PAGE
By Ms. Goodman.............................6, 244
By Mr. McBirney...............................245
EXHIBITS
EXHIBIT
DESCRIPTION
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Exhibit 61 a privilege log dated June 26th,
2023, provided by the United
States DOJ.......................11
Exhibit 62 a document Bates Numbered
ARMY-ADS336340 through 336638...154
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Exhibit 63 a document Bates Numbered
ARMY-ADS329948 through 329970...165
Exhibit 64 a document Bates Numbered
ARMY-ADS187047 through 187077...211
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THE VIDEOGRAPHER: Good morning.
We're going on the record at 9:34 on August 18th,
2023. Please note that the microphones are
sensitive and may pick up whispering and private
conversations. Please mute your phones at this
time. Audio and video recording will continue to
take place unless all parties agree to go
off the record.
This is Media Unit 1 of the
video-recorded deposition of Colonel John Horning
in the matter of United States, et al., v. Google
LLC. The location of the deposition is Paul
Weiss.
My name is Glenn Fortner, representing
Veritext, and I'm the videographer. The court
reporter is Ryan Black from the firm Veritext.
I'm not related to any party in this action, nor
am I financially interested in the outcome.
If there are any objections to
proceeding, please state them at the time of your
appearance. Counsel and all present, including
remotely, will now state their appearances and
affiliations for the record beginning with the
noticing attorney.
MS. GOODMAN: Martha Goodman, from the
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law firm Paul Weiss, on behalf of Google LLC.
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I'm joined by my colleague Leah Hibbler.
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MR. MCBIRNEY: Jimmy McBirney, with the
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Unites Staes Department of Justice, on behalf of
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the United States and the witness.
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MR. PRITCHETT: Chase Pritchett, on
behalf of the United States.
MR. CHU: Alvin Chu on behalf of the
United States.
MR. SOSNOWSKY: Mark Sosnowsky on behalf
of the United States.
MAJOR AL-DARSANI: Moe Al-Darsani,
United States Army.
MR. FARLEY: Edwin Farley, United
States.
THE VIDEOGRAPHER: Okay. Will the court
17
reporter please swear in the witness and then
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counsel may proceed.
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MR. CHU: Oh, also, just to let you
20
know, I have Katherine Clemons -- she'll be --
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from the DOJ that will also joining in and out.
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*
*
*
Whereupon --
24
COL. JOHN HORNING,
25
called to testify, having been first duly sworn
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or affirmed, was examined and testified as
follows:
* * *
EXAMINATION
BY MS. GOODMAN:
Q. Good morning, Colonel Horning.
A. Good morning.
Q. Have you been deposed before?
A. I have not.
Q. Do you understand your purpose here
today is to provide truthful and accurate
testimony to the best of your testimony and
knowledge?
A. I do.
Q. Is there any reason you cannot do that
today?
A. No.
Q. Okay. Because the court reporter is
writing everything down, it's important that we
not talk over one another, so please let me
finish my question before you begin your answer.
Okay?
A. Okay.
Q. And because he's again taking a written
transcript, the -- you have to speak verbally as
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opposed to with sounds like uh-huh or huh-uh
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so that it can be accurately reflected in the
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transcript. Okay?
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A. I understand.
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Q. If you don't understand my question,
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please let me know. Okay?
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A. Yes.
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Q. Otherwise I assume you'll understand.
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Okay?
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A. Yes.
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Q. In the normal course of your work, do
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you consider the Department of Justice Antitrust 12
Division to be your counsel?
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A. I'm not sure that I'm qualified to
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answer, within the legal constructs of the U.S. 15
government, who our actual counsel is or is not. 16
Q. I'm not asking for you to provide a
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legal opinion. I'm asking for your personal
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understanding and your considerations, your
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personal opinions. So do you consider the
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Department of Justice Antitrust Division to be 21
your counsel in the normal course of your work? 22
A. I don't believe that I have a personal
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opinion on who our counsel is. I only know
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what's -- yeah. I -- I don't have an opinion on 25
that.
Q. Have you ever requested legal advice
from the Department of Justice Antitrust
Division?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
MS. GOODMAN: You're asking him -- the
information that would appear on a privilege log
with a request for legal advice that's required
for you as the privilege -- the party asserting a
privilege to establish the proprietary of the
privilege and meet your burden of proof and
persuasion that the privilege applies, you're
instructing him not to answer that question?
MR. MCBIRNEY: You are asking the
witness whether he has requested legal advice
from the Department of Justice Antitrust
Division?
MS. GOODMAN: Yeah.
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: No.
BY MS. GOODMAN:
Q. To what extent has anybody at the
Page 9
Department of Justice ever asked you to provide
information about the Army's advertising
business?
MR. MCBIRNEY: Objection. Privileged.
Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you going to follow that
instruction, sir?
A. Yes.
Q. Okay. When did you first have any
conversations with anybody at the Department of
Justice Antitrust Division?
A. As best that I can recall, our first
interaction would have been in early spring of
2023 or late winter. I -- I can't recall the
specific date.
Q. So sometime between late winter of what
year?
A. 2023.
Q. Okay. And early spring of 2023?
A. Correct.
Q. Okay. What was your understanding
of the reason for your conversations with the
Department of Justice Antitrust Division?
MR. MCBIRNEY: Objection. Calls for
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privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Has the Department of Justice ever
requested information about digital advertising
purchases by the United States Army?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Do you -- in the course of your work,
do you routine -- do you field requests for
information from the Department of Justice on
an ordinary basis?
A. I do not.
Q. Are you aware of anybody else within
the AEMO who re -- regularly fields requests for
information from the Department of Justice?
A. I'm not personally aware of anything
like that.
MS. GOODMAN: I'm marking Exhibit 61, a
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privilege log dated June 26th, 2023, provided by
the United States in this litigation. I'm
handing it to the witness.
(Exhibit No. 61, a privilege log dated
June 26th, 2023, provided by the United States
DOJ, was introduced.)
BY MS. GOODMAN:
Q. Now, Colonel Horning, this is not a
document I would normally show a percipient
witness, but I'm essentially hamstrung and must
do so here today for reasons that don't pertain
to you, per se. But I would like you to turn to
Page 11 of this document.
Let me know when you're there.
A. Okay. I am on Page 11.
Q. Okay. And if you look back at Page 1,
actually, you see there is a heading at the top
that indicate what each of the columns are.
A. Okay.
Q. Okay. So you see that in the, one, two,
three, four, five -- fifth column over on Page
23, which is the To column, your name is
listed -A. On? I'm sorry. Could you say what page
again? I thought you said Page 23.
Q. I'm sorry. I meant Page 11.
A. Okay.
Q. It's line entry 23 on Page 11.
A. Okay.
Q. So one, two, three, four, five columns
over, you're listed in the To column. Do you see
that?
A. I do.
Q. And do you see the date in the few-more
columns over of January 5th, 2023?
A. Okay.
Q. Does that refresh your recollection of
the time period where you first had conversations
with the Department of Justice Antitrust
Division?
A. Can you help me understand what it is
I'm actually looking at here?
Q. Yeah. So this is what's called a
privilege log.
A. I'm not familiar with what one of those
are.
Q. Okay. A privilege log is a
document that parties are required to provide
to the opposing side when they're asserting
attorney-client or attorney work product or other
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privilege over communications -A. Okay.
Q. -- that they are not providing to
the other side in litigation. So that's what a
privilege log is. And so by virtue of this
entry, on Line 23 the United States is asserting
a privilege, as described in the last column, -A. Okay.
Q. -- over your communication with
Mr. Wessels and others -A. Okay.
Q. -- listed on this page.
A. Okay.
Q. Do you understand now?
MR. MCBIRNEY: Objection. Assumes facts
not in evidence. Form of the question.
BY MS. GOODMAN:
Q. Do you understand -- do you have an
appropriate understanding now of what a privilege
log is?
A. I do understand what this document is
now.
Q. Okay. So having now looked at this
document and understanding what it is, does it
refresh your memory at all that -- as to the
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timing of your conversations with the Antitrust
Division?
MR. MCBIRNEY: Objection; foundation,
and to form.
THE WITNESS: It does not refresh my
recollection, but I have no reason to believe
this is not true.
BY MS. GOODMAN:
Q. Okay. And you see in the column next to
the date, which is the subject -- if you look
back at Page 1, you can see that that is the
subject column.
A. Yes.
Q. Okay. Can you read the subject to me
here?
A. The subject on Item 23 of the privilege
log says, brackets, "external DOJ-Army interview
on Google-Meta advertising products used by DOD."
Q. Okay. Do you recall who was interviewed
-- who at the Army was interviewed on Google-Meta
advertising products used by DOD on or around
this date of January 5th, 2023?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: I do not recall.
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BY MS. GOODMAN:
Q. Okay. Do you recall yourself being
interviewed on this topic?
A. I recall being interviewed, but I do not
recall that this was the date for it.
Q. Okay. Do you recall who interviewed
you?
A. I only recall -- I didn't -- there was
likely more than one person. I only recall one
by name.
Q. Who do you recall by name?
A. Mr. Chase Pritchett.
Q. Okay. How long did the interview last?
A. I can't be certain. I think it was,
likely, 60 to 90 minutes, perhaps.
Q. And this is a yes or no question: Did
the United States Antitrust Division lawyers
present explain to you the purpose of the
interview?
MR. MCBIRNEY: Objection. Calls for
privileged communication. Instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. What was your understanding of the
purpose of the interview?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. What facts -- strike that.
At the time reflected here on this
log, -A. Mm-hmm.
Q. -- January 5th, 2023, were you aware of
any anticompetitive conduct on the part of Google
affecting the Army's advertising -MR. MCBIRNEY: Objection.
BY MS. GOODMAN:
Q. -- practices?
MR. MCBIRNEY: Objection. Calls for a
legal conclusion.
BY MS. GOODMAN:
Q. You may answer.
A. I'm not sure that I have -- am
qualified to know or would have been made
available any infor -- or would have had any
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information available to me on that topic.
Q. Around this time of January 5th, 2023,
were you aware of any conduct on the part of
Google that was causing the Army to pay prices
for advertising that were too high?
A. I had not been made aware of anything
like that at the time frame that you're asking.
Q. Okay. How about prior to the time frame
that I'm asking?
A. Not that I can recall, no.
Q. Okay. What's your understanding of the
word anticompetitive?
MR. MCBIRNEY: Objection. Calls for
legal conclusion, and foundation.
THE WITNESS: I only know the common
language terminology. I don't understand the
actual legal definitions or implications.
Anticompetitive: Not competitive.
BY MS. GOODMAN:
Q. So what is your common language
understanding of the word anticompetitive?
A. I understand it in the context of
business practices meaning not adhering to a
competitive, fair practice.
Q. Okay. So using your definition of
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anticompetitive, which is in the context of
business practicing -- 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?
MR. MCBIRNEY: Object to the form of the
question.
THE WITNESS: I was not aware.
BY MS. GOODMAN:
Q. At the time of this discussion with the
DOJ, what was your understanding, if any, as to
the possibility of litigation?
MR. MCBIRNEY: Objection. Calls for
privileged information. You can answer that
question if you can answer it without divulging
any privileged information. If you cannot, then
I'll instruct you not to answer.
THE WITNESS: Can you repeat the
question?
BY MS. GOODMAN:
Q. 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?
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MR. MCBIRNEY: Same instruction. If
you can answer that without disclosing privileged
information, you may. Otherwise, I instruct you
not to answer.
THE WITNESS: None.
BY MS. GOODMAN:
Q. Around the time of this meeting
-- strike that.
Around the time of these communications
with the Department of Justice about Google-Meta
advertising products used by DOD, what were your
personal views on having to participate in those
discussions?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Can you clarify the
question to the extent what was my personal view
of being involved in a meeting?
BY MS. GOODMAN:
Q. Yes. What was your personal view of
being involved in a meeting or discussions with
the Antitrust Division about Google advertising
-- Meta advertising products used by DOD?
MR. MCBIRNEY: Same objection. And
caution the witness not to divulge confidential
information in your answer.
MS. GOODMAN: Confidential information?
MR. MCBIRNEY: I'm sorry. Privileged
information.
MS. GOODMAN: Thank you.
THE WITNESS: I have no personal opinion
about attending a meeting. As a soldier, I
received an order. I do what I'm told.
BY MS. GOODMAN:
Q. Okay. From whom did you receive an
order, if anyone?
A. From AEMO leadership.
Q. Who in AEMO leadership?
A. As best as I re -- can recall, the AEMO
chief of staff.
Q. Who's that?
A. Colonel Matt Weinrich.
Q. Why did Mr. Weinrich -- I'm sorry,
Colonel Weinrich order you to participate in this
meeting?
MR. MCBIRNEY: Objection. Calls for
speculation.
THE WITNESS: Yeah. I -- I can't answer
as to why he chose me.
BY MS. GOODMAN:
Q. Okay. Did he explain to you why he
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chose you?
A. No.
Q. When did he order you to -- to
participate in these discussions?
A. I can't recall a -- a specific date. As
best as I can recall, it was via an email saying
that there was going to be individuals who needed
to ask questions and I should make myself
available, but I don't remember when.
Q. Okay. Anything else you remember about
that email and what it said?
A. No, I don't.
Q. Did you have any discussions outside of
email with Colonel Weinrich about this request?
A. No.
Q. And setting aside the fact that you
received an order to participate in discussions
with the Department of Justice on this topic,
is it your testimony you had no personal view
whatsoever as to your participation in such
meetings?
MR. MCBIRNEY: Object to the form and
asked and answered.
THE WITNESS: Yeah. I have no personal
opinion on -- on attending the meeting.
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ads. And I -- I certainly -- I can't recall a
specific instance that would answer your question
without it being a little more specific.
BY MS. GOODMAN:
Q. Okay. Have you asked anybody at the
advertising agency DDB to give you volume of ads
purchased, cost, cost of such ads, dates of such
purchases, vendors, whether it be Google or
some other vendor through which the ads were
purchased, as to the Army's -- and I'll narrow
it further -- digital advertising purchases?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if you're able to answer
that question without disclosing privileged
communications from counsel, you may do so. If
you are not, then I instruct you not to answer.
THE WITNESS: Okay. On the advice of
counsel, I'm not going to answer that question.
BY MS. GOODMAN:
Q. Okay. To your knowledge -- has anybody
at AEMO, so not yourself, but anybody else with
whom you work or know, to your knowledge has
anybody else at AEMO asked the advertising agency
DDB to give you -- to give AEMO volumes of ad
purchased, cost, dates, vendors or other
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information in that nature regarding the Army's
digital advertising purchases?
MR. MCBIRNEY: I object to the form of
the question and instruct the witness that if
you can answer the question without disclosing
privileged information, you may do so. If you
cannot, then I instruct you not to answer.
THE WITNESS: To the best of my
knowledge, yes.
BY MS. GOODMAN:
Q. Okay. Who at AEMO, to your knowledge,
has asked DDB for such information?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if you can answer that
question without disclosing privileged
information, you may do so. Otherwise,
instruct the witness not to answer.
THE WITNESS: Okay. On the advice of
counsel, I'm not going to answer that question.
BY MS. GOODMAN:
Q. To your knowledge -- well, strike that.
Has anybody at DDB provided you,
personally, with information about the Army's
digital advertising purchases of the kind that we
just described, dates, cost, vendor?
MR. MCBIRNEY: Again, I'm going to
instruct the witness if he can answer that
without disclosing privileged information, you
may do so. Otherwise, I would instruct you not
to answer.
THE WITNESS: Can you repeat the
question?
BY MS. GOODMAN:
Q. Has anybody at DDB provided you
personally with any information about the Army's
digital advertising purchases of the kind that we
just described, such as dates of purchase, cost,
vendor?
MR. MCBIRNEY: Same instruction.
THE WITNESS: Not that I can recall.
BY MS. GOODMAN:
Q. Okay. To your knowledge, has anybody at
DDB provided anybody else, other than yourself at
AEMO, with information about the Army's digital
advertising purchases of the kind that we just
described, such as dates of purchase, cost or
vendor?
MR. MCBIRNEY: Object to the form of the
question. Calls for speculation. And instruct
the witness that if you can answer the question
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without disclosing privileged information, you
may do so. If not, I would instruct you not to
answer.
THE WITNESS: I have no personal
knowledge of that occurring.
BY MS. GOODMAN:
Q. Okay. Do you have knowledge other than
personal knowledge of that occurring?
MR. MCBIRNEY: Objection; foundation.
Calls for speculation. And same instruction.
THE WITNESS: I don't know what
"knowledge other than personal" means.
BY MS. GOODMAN:
Q. Okay. At the time that you first became
involved in discussions with the Department of
Justice in the late winter 2023 time period, did
you consider their inquiries to be a routine
request for information?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: At the time I first became
aware, I had no indication the purpose at all.
BY MS. GOODMAN:
Q. Okay. Did you have a -- did you have
a view -- so setting aside the Department's
purpose, which I'm not asking about, I'm asking
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about your personal reactions to receiving
an inquiry -- inquiry from the Department of
Justice, how did you view it? As a routine
request for information? As fact-gathering?
What was your personal view of the nature of the
inquiry?
MR. MCBIRNEY: Object to the form of the
question and vague.
THE WITNESS: I viewed it as a routine
request for information.
BY MS. GOODMAN:
Q. Okay. Has the Department of Justice
asked you to get information from the advertising
agency DDB?
MR. MCBIRNEY: Obj -BY MS. GOODMAN:
Q. Yes or no.
MR. MCBIRNEY: Objection. Calls for
privileged information. I instruct the witness
not to answer.
THE WITNESS: I'm not going to answer
the question on advice of question.
MS. GOODMAN: That question is
completely proper because it goes to your
assertion to which you bear a burden of proof and
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persuasion as to your claim of privilege.
MR. MCBIRNEY: You are asking
the witness to disclose communications of a
particularized nature from counsel, which is
clearly work product. So that instruction is
entirely proper, and I'm instructing the witness
not to answer.
BY MS. GOODMAN:
Q. Okay. Has the Department of Justice -anybody at the Department of Justice asked you
to participate in any conversations with your
advertising agency?
MR. MCBIRNEY: Same objection. Instruct
the witness not to answer.
You are asking the witness for
particular communications from counsel.
MS. GOODMAN: No. They're very
generalized communications. We've talked about
the term "information" being very generalized.
MR. MCBIRNEY: Even if they're
generalized, they're communications from counsel.
MS. GOODMAN: Of the kind that appear on
privilege log. This is exactly what you have to
put on a privilege log.
BY MS. GOODMAN:
Q. So, Colonel Horning, I'll ask you again
so that I can get an answer or your -- well, get
a clean record, I should say.
Has anybody at the Department of
Justice asked you to get any information from
your advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged communication. Instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Okay. Has anybody at the Department of
Justice asked you to have any conversations with
any person from your advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Okay. To your knowledge, has anybody
at the Department of Justice asked any other
employee of AEMO to obtain information from the
advertising agency DDB?
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MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. To your knowledge, has anybody at the
Department of Justice asked any other employee of
AEMO to have any conversations with any person
from the advertising agency DDB?
MR. MCBIRNEY: Objection. Calls for
privileged information, and instruct the witness
not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Are you aware of any investigation by
the Department of Justice into Google?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: Yes.
BY MS. GOODMAN:
Q. When did you first become aware of that
investigation?
MR. MCBIRNEY: I'm going to instruct the
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witness that if you can answer that question
without disclosing privileged information you may
do so. If you cannot, then I instruct you not to
answer.
THE WITNESS: I'm not going to answer
that question on the advice of counsel.
BY MS. GOODMAN:
Q. Okay. Prior to late winter 2023, as
we've discussed, had anybody from anyone within
the government reached out to you inquiring about
the Army's digital advertising purchases?
MR. MCBIRNEY: Objection; vague and
instruct the witness that if you can answer
that question without disclosing privileged
information, you may do so. If you cannot,
then I instruct the witness not to answer.
THE WITNESS: I don't recall any
communication previous to what we already
discussed.
BY MS. GOODMAN:
Q. Okay. And how about prior to late
winter 2023, did you have any outreach from
anybody within the United States government about
any anticompetitive conduct on the part of Google
affecting the United States Army? And when I use
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the word anticompetitive, I'm using your
definition?
MR. MCBIRNEY: Objection; vague.
Instruct the witness that if you can answer
that question without disclosing privileged
communication you may do so. If not, I instruct
the witness not to answer.
THE WITNESS: I cannot recall a
time prior to then when anyone from the U.S.
government reached out to me on any topic related
to any practice of any vendor or company involved
in advertising.
BY MS. GOODMAN:
Q. And that includes Google?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: My recollection, as
previously stated, would include Google.
BY MS. GOODMAN:
Q. Okay. Have you received a litigation
hold?
MR. MCBIRNEY: Objection. Calls for
privileged information. Instruct the witness not
to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. When did you receive a litigation hold,
if any?
MR. MCBIRNEY: Objection. Assumes
facts not in evidence and calls for privileged
information. Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. Who sent you a litigation hold, if any?
MR. MCBIRNEY: Same objections.
Instruct the witness not to answer.
BY MS. GOODMAN:
Q. Are you following that instruction?
A. Yes.
Q. When did you first become aware that
your participation in this lawsuit would be re -necessary?
MR. MCBIRNEY: Objection. Assumes facts
not in evidence. Vague.
THE WITNESS: I first became aware that
I would be a participant within the last two
weeks.
BY MS. GOODMAN:
Q. Prior to the last two weeks, have you
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assisted anybody in the Department of Justice
with gathering information related to this
litigation?
MR. MCBIRNEY: Objection; vague and
calls for privileged information. Instruct the
witness not to answer.
BY MS. GOODMAN:
Q. Have you gathered any information in
order to provide discovery to Google in this
litigation?
MR. MCBIRNEY: You can answer that yes
or no.
THE WITNESS: No.
BY MS. GOODMAN:
Q. Are you aware one way or another if your
emails have been searched or produced to Google?
MR. MCBIRNEY: You can answer.
THE WITNESS: I'm not aware if it has or
has not occurred.
BY MS. GOODMAN:
Q. Okay. Do you recall providing any
information for the purpose of answering written
questions called interrogatories in this
litigation?
MR. MCBIRNEY: Ob -- you can answer that
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uses more than one provider of display
advertising?
A. I do not know who or how many are even
available. I don't know the answer to that.
Q. Okay. Let's go to Estimated Potential
for Efficient ROI. Have you formed an assessment
of Google's potential for efficient ROI?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Again, any assessment
would be not of Google as a whole, but of
depending on the channel product itself.
BY MS. GOODMAN:
Q. Okay. So let's talk first about Search.
What is your view on the potential for efficient
ROI with respect to Search?
A. The information that I've seen
throughout our quarterly MMMs has indicated or
given me the impression that Search has been an
efficient channel for us.
Q. Same question as to YouTube.
A. Generally speaking, as I can best recall
from the MMM reports, YouTube tends to perform
fairly well comparatively on an efficiency
standpoint relative to the various channels in
the marketing mix.
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Q. And how about with respect to Discovery?
A. I don't know the answer to that one.
Q. Okay. And how about with respect to
display?
A. I don't know which all partners may or
may not be involved in display. I know that our
MMM results have shown that display, in general,
has not performed at the same efficient rate as
other options available to us.
Q. Okay. What is your assessment of
Google's ability to maintain expected levels of
brand safety?
MR. MCBIRNEY: Objection; vague and
foundation.
THE WITNESS: I think there's a measure
of risk assessment involved in that that we have
to constantly assess and reassess in light of
current market conditions and activities or
events in the information sphere and that may
change from time period to time period.
BY MS. GOODMAN:
Q. And does Google, in your view, help
protect the brand safety of the Army?
MR. MCBIRNEY: Objection; foundation.
THE WITNESS: As a platform for the
distribution of our message, I don't see how
Google has a role in protecting, considering it's
available to so many. I wouldn't think they have
a role in protecting anybody's. That's our
responsibility to look at and assess where any
distribution platform, channel, site that we may
be -- any -- any of those things, any of these
actual media networks or properties are a fit for
brand safety.
BY MS. GOODMAN:
Q. I see.
A. So I don't think Google is a yes or a no
specifically.
Q. Do you view Google as a risky
distribution channel for the brand safety of the
Army?
MR. MCBIRNEY: Objection; vague and
foundation.
THE WITNESS: During the time that I've
been at AEMO, I'm certainly not aware of anything
that would give me pause or concern with respect
to working with Google being a risk to brand
safety.
BY MS. GOODMAN:
Q. And then the last criteria, flexible
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cancellation terms adherence to industry-standard
contractual out clauses, do you have any ability
to assess Google's flexible cancellation terms,
one way or another?
A. I do not.
Q. Okay. Do you recall attending a Google
Marketing Live event?
MR. MCBIRNEY: Objection; vague.
THE WITNESS: Can you be specific about
the timing?
BY MS. GOODMAN:
Q. Sure can. Give me a sec.
Summer of 2022.
A. Is there a document that I can review?
Q. I do not have it, no. I'm sorry.
A. I have recollection of attending events
with Google, but I can't attest to the date,
specifically.
Q. Okay. What -- how many events do you
recall attending with Google?
A. Two.
Q. What were those two events that you are
recalling?
A. One was in Chicago at the local office
-- I assume to be the local office of -- of
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Google. And the other was in California at the
headquarters.
Q. Okay. Starting with the first event you
recall at the local office of Google, what was
that event? What -- what took place at that
event?
A. That was an educational event hosted
by Google to inform Army marketers on Google
products, how other customers have been able to
be successful or not, TTPs or what we say in the
Army, tactics, technique, procedures, meaning
just generally how you go about things, so to
share with us information about how we might
either perform better or continue to perform
well or use products effectively.
Q. Did you find that event informative?
A. Yes.
Q. Did you find it useful?
A. I found the discussion stimulating.
I can't recall me specifically going back and
-- and then using something from there in the
course of my routine duties.
Q. Did that educational event provide any
value, from your point of view, to the Army?
A. I would say in that knowledge and
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education is always valuable, I certainly
couldn't ascribe a particular quantity or figure
or dollar figure of value.
Q. Sure. But the knowledge and education
that Google provided you at that event, did you
consider that valuable?
MR. MCBIRNEY: Objection. Asked and
answered.
THE WITNESS: At the time, I felt
the information and the conversations that it
generated were helpful to the marketing team.
BY MS. GOODMAN:
Q. Do you know who from Google was at that
event? Do you recall?
A. There were a number of presenters, and,
frankly, I don't remember everyone's name.
Q. Do you remember anybody's name?
A. No.
Q. Okay.
A. I know that there was an individual who
had government in their portfolio. But as far
as all their names, I -- unfortunately, I don't
recall.
Q. Is there anything else that you, sitting
here today, recall about that event?
A. I mean, I generally recall the room and
that we had slides and that there were a number
of presenters on a number of topics. I don't
recall what all the topics were specifically,
but -Q. Do you recall any of the topics?
A. No, I don't.
Q. Okay. Let's turn to the event at the
California -- in California at HQ -- was that at
Google's headquarters?
A. It was.
Q. Okay. And did other marketing
professionals from the other branches of the
military attend that, to your recollection?
A. Yes.
Q. Okay. What -- what was the purpose of
that event?
A. I was attending on behalf of
Major General Fink. My understanding of the
purpose, it was similar to the earlier meeting
in Chicago, but a year later and, more broadly,
participation from the other services, whereas
the first was Army only. And this had other
services, all, in my perception, with the same
intent to educate the audience on certain aspects
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of Google's product line and give examples of
how some of their customers have used them
effectively.
Q. Did you find that event to be
informative?
A. I did. And I found it useful because
it's one of the first events I was at where the
other services were also there, and so it also
enabled some cross-service discussion on
challenges, successes.
Q. Did you find that event to provide value
to the Army?
A. It did in that I actually was able to
provide some -- or -- or put some face to names
of my counterparts in the Air Force and Navy,
which has facilitated some dialogue post that
meeting.
Q. What dialogue has that facilitated?
What dialogue has that meeting facilitated with
your counterparts in the other branches of the
armed services?
A. I'll occasionally reach out and ask
something that they may be doing or see if there
might be an opportunity for us to do something
together, or just ask questions about approaches
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they may be taking. It's never anything specific
in nature, other than general information-share.
Q. Do you recall who attended from -- who
from Google attended the event in California that
you're recalling?
A. There were a number of presenters,
and they were from different divisions,
organizations. I'm not sure how they're -Google organizations is what we would call them,
but from different areas of the business who came
and presented on various topics. Some of them
were somewhat creative in nature. Some of the
topics were more, I don't know, say analytic in
nature, I mean, although we weren't talking
about how to do regression models but some
certainly were more focused on the creative
aspect of what you might be showing and others
more about how you might be using tools. I think
-- you know, I don't know for sure -- actually, I
know I don't know the names -- yeah -- of who
presented.
Q. Okay. Do you know an individual at
Google named Sean Harrison?
A. That name is familiar to me. He might
have been one of the individuals at one of the
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meetings, but I -- I don't know him and have
never had an interaction with him outside of -if that's the same person, outside of one of
those meetings.
Q. Okay. So sitting here today, can you
recall ever having any conversation with Sean
Harrison about -- about -- well, about anything?
A. Well, given that I'm not a hundred
percent sure if that's the name of the person who
I think it is, I can't say with certainty.
Q. Okay. Are you recalling a conversation
with some individual at Google, but you just
don't know that person's name?
A. I am.
Q. Okay. What conversation are you
recalling?
A. The conversation I'm recalling was on
the sidelines of the presentation in California,
where we were notified of a number of false leads
that were coming into the Army system through a
Google product, in the thousands, which obviously
would throw off a lot of our data systems in
terms of false attribution. And also,
potentially, our concern of being charged for
things that weren't really happening. And the
conversation with that individual on that topic
was focused around what he and his team were
doing to try to track down what had been
occurring. It was new, so we didn't know,
they didn't know. We just knew something was
happening.
That was the -- that was, essentially,
the crux of that discussion.
Q. Okay. The individual that you're
recalling having this conversation with, did that
person indicate to you that Google would take
steps to address the problem?
A. I don't recall if that was ever said.
But I have no reason to believe that -- most
likely, that was probably assumed on my part at
the time, that, given a business relationship,
it's generally understood, even though I don't
have access to terms of any kinds of contracts or
not, that good business partners will certainly
try to do what they can to make good or to figure
out what's been going on.
Q. And do you have any -- what -- what
-- what happened? What was the outcome of the
-- of the effort to -- to get to the bottom of
this false hit issue?
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A. Yeah. I can't state with certainty,
only as I recall the information now. Because
once it was also being handled by the -- the data
team, as well, I didn't look too much more deeply
into a hundred percent technical answer of here's
what happened. But, as I recall, there was some
kind of a -- I don't know if the right term is
a bot farm, or at least some malicious intent
emanating, at least as was trackable, out of
an Asian country that I believe to be the
Philippines, if I recall correctly, but I
could be mistaken. And somehow it was getting in
through a MAC code, which is a Marketing Activity
Code, that was assigned to Google efforts. And
it was generating fake leads, or false -- or just
it was submitting leads with false names and
-- and -- and giving us the impression of an
effectiveness of whichever of the products it
was coming from. I don't recall which one.
But -- but, essentially, that was the crux of it;
we had some false leads emanating from some
malicious activity from some third country.
Q. And do you know if Google took any steps
to put a stop to that malicious activity coming
from a third country?
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for information relevant to this lawsuit?
A. I did not.
MS. GOODMAN: I reserve the remainder of
my time for this deposition based on the improper
privilege assertions made at the outset of the
deposition. So I close the dep -- I'm holding
the deposition open.
MR. MCBIRNEY: Can I get a time check?
THE VIDEOGRAPHER: We are at 5:55
minutes.
MR. MCBIRNEY: Okay. The government
does not agree with your position that the
deposition should remain open, but we understand
your position.
MS. GOODMAN: Okay.
MR. MCBIRNEY: Off the record.
THE VIDEOGRAPHER: Anything else for the
record?
MS. GOODMAN: Thank you, Colonel.
THE WITNESS: Thank you very much.
THE VIDEOGRAPHER: This marks the end of
the deposition of Colonel John Horning. We're
going off the record at 1753.
(Deposition concluded -- 5:53 p.m.)
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Jimmy McBirney, Esq.
jimmy.mcbirney@usdoj.gov
August 21, 2023
RE: United States, Et Al v. Google, LLC
8/18/2023, John Horning (#6060378)
The above-referenced transcript is available for
review.
Within the applicable timeframe, the witness should
read the testimony to verify its accuracy. If there are
any changes, the witness should note those with the
reason, on the attached Errata Sheet.
The witness should sign the Acknowledgment of
Deponent and Errata and return to the deposing attorney.
Copies should be sent to all counsel, and to Veritext at
erratas-cs@veritext.com
Return completed errata within 30 days from
receipt of testimony.
If the witness fails to do so within the time
allotted, the transcript may be used as if signed.
Yours,
Veritext Legal Solutions
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CERTIFICATE
1 United States, Et Al v. Google, LLC
2 John Horning (#6060378)
I do hereby certify that I am a Notary
Public in good standing, that the aforesaid
testimony was taken before me, pursuant to
notice, at the time and place indicated; that
said deponent was by me duly sworn to tell the
truth, the whole truth, and nothing but the
truth; that the testimony of said deponent was
correctly recorded in machine shorthand by me and
thereafter transcribed under my supervision with
computer-aided transcription; that the deposition
is a true and correct record of the testimony
given by the witness; and that I am neither of
counsel nor kin to any party in said action, nor
interested in the outcome thereof.
3
ERRATA SHEET
4 PAGE_____ LINE_____ CHANGE________________________
5 __________________________________________________
6 REASON____________________________________________
7 PAGE_____ LINE_____ CHANGE________________________
8 __________________________________________________
9 REASON____________________________________________
10 PAGE_____ LINE_____ CHANGE________________________
11 __________________________________________________
12 REASON____________________________________________
13 PAGE_____ LINE_____ CHANGE________________________
14 __________________________________________________
15 REASON____________________________________________
16 PAGE_____ LINE_____ CHANGE________________________
WITNESS my hand and official seal this
21st day of August, 2023.
17 __________________________________________________
18 REASON____________________________________________
19 PAGE_____ LINE_____ CHANGE________________________
20 __________________________________________________
<%11516,Signature%>
Notary Public
21 REASON____________________________________________
22
23 ________________________________ _______________
24 John Horning
Date
25
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1 United States, Et Al v. Google, LLC
2 John Horning (#6060378)
3
4
ACKNOWLEDGEMENT OF DEPONENT
I, John Horning, do hereby declare that I
5 have read the foregoing transcript, I have made any
6 corrections, additions, or changes I deemed necessary as
7 noted above to be appended hereto, and that the same is
8 a true, correct and complete transcript of the testimony
9 given by me.
10
11 ______________________________
12 John Horning
________________
Date
13 *If notary is required
14
SUBSCRIBED AND SWORN TO BEFORE ME THIS
15
______ DAY OF ________________, 20___.
16
17
18
__________________________
19
NOTARY PUBLIC
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Federal Rules of Civil Procedure
Rule 30
(e) Review By the Witness; Changes.
(1) Review; Statement of Changes. On request by the
deponent or a party before the deposition is
completed, the deponent must be allowed 30 days
after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to
sign a statement listing the changes and the
reasons for making them.
(2) Changes Indicated in the Officer's Certificate.
The officer must note in the certificate prescribed
by Rule 30(f)(1) whether a review was requested
and, if so, must attach any changes the deponent
makes during the 30-day period.
DISCLAIMER:
THE FOREGOING FEDERAL PROCEDURE RULES
ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
THE ABOVE RULES ARE CURRENT AS OF APRIL 1,
2019.
PLEASE REFER TO THE APPLICABLE FEDERAL RULES
OF CIVIL PROCEDURE FOR UP-TO-DATE INFORMATION.
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VERITEXT LEGAL SOLUTIONS
COMPANY CERTIFICATE AND DISCLOSURE STATEMENT
Veritext Legal Solutions represents that the
foregoing transcript is a true, correct and complete
transcript of the colloquies, questions and answers
as submitted by the court reporter. Veritext Legal
Solutions further represents that the attached
exhibits, if any, are true, correct and complete
documents as submitted by the court reporter and/or
attorneys in relation to this deposition and that
the documents were processed in accordance with
our litigation support and production standards.
Veritext Legal Solutions is committed to maintaining
the confidentiality of client and witness information,
in accordance with the regulations promulgated under
the Health Insurance Portability and Accountability
Act (HIPAA), as amended with respect to protected
health information and the Gramm-Leach-Bliley Act, as
amended, with respect to Personally Identifiable
Information (PII). Physical transcripts and exhibits
are managed under strict facility and personnel access
controls. Electronic files of documents are stored
in encrypted form and are transmitted in an encrypted
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fashion to authenticated parties who are permitted to
access the material. Our data is hosted in a Tier 4
SSAE 16 certified facility.
Veritext Legal Solutions complies with all federal and
State regulations with respect to the provision of
court reporting services, and maintains its neutrality
and independence regardless of relationship or the
financial outcome of any litigation. Veritext requires
adherence to the foregoing professional and ethical
standards from all of its subcontractors in their
independent contractor agreements.
Inquiries about Veritext Legal Solutions'
confidentiality and security policies and practices
should be directed to Veritext's Client Services
Associates indicated on the cover of this document or
at www.veritext.com.
FILED PURSUANT TO COURT ORDER DOC. 362
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