REPLY to Response to Motion re [340] MOTION Leave to Take Certain Depositions Out of Time and Other Relief filed by Commonwealth of Virginia, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Illinois, State of Michigan, State of Minnesota, State of Nebraska, State of New Hampshire, State of New Jersey, State of New York, State of North Carolina, State of Rhode Island, State of Tennessee, State of Washington, State of West Virginia, United States of America. (Teitelbaum, Aaron)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO TAKE CERTAIN
DEPOSITIONS OUT OF TIME AND FOR OTHER RELIEF [ECF NO. 340]
Pursuant to the Court’s August 31, 2023 Order, at ECF No. 363, the only unresolved
matter raised by Plaintiff’s Motion to Take Certain Depositions Out of Time and for Other
Relief, ECF No. 340, is whether the Defendant, Google, will be permitted to delay scheduling a
duly-noticed Google witness for deposition in order to deny Plaintiffs the ability to use that
deposition as permitted under the Court’s Discovery Coordination Order. ECF No. 251.
On August 3, 2023, more than one month before the close of fact discovery in this case,
the MDL Plaintiffs, who are subject to this Court’s Discovery Coordination Order, noticed a
deposition of a Google employee who serves as the Engineering Director of the Google Ad
Manager product, the heart of Google’s ad technology suite that is central to this litigation.
Pursuant to the Discovery Coordination Order, this deposition was noticed three-weeks in
advance of its scheduled date, with notice provided to all Parties in this case, including Plaintiffs.
Coordination Order ¶ 3(b).
There is no question that this deposition of a key Google witness was noticed during the
Coordinated Discovery Period. Coordination Order ¶ 1(c) (defining “Coordinated Discovery
Period” to mean the time period after the Deadline for Substantial Completion of Document
Production in the Virginia Case and before the Fact Discovery Cutoff in the Virginia Case). ThePage 2 PageID#
notice was sent during the period of time while fact discovery was underway in this case, and
with (more than) three-weeks’ advanced notice to the witness and all parties, including Plaintiffs.
The only question left for this Court to answer is whether Google can unilaterally refuse to seat
the witness for a deposition during the Coordinated Discovery Period in order to deprive
Plaintiffs of the ability to use that deposition as the Coordination Order provides.
The Court should grant Plaintiffs’ motion and permit Plaintiffs to make full use of this
deposition, as if it had occurred on or before September 8, 2023.
The Coordination Order Litigation Supports Plaintiffs’ Position
The Coordination Order governing this case and the MDL, see ECF No. 251, permits
Plaintiffs in this case to use a deposition transcript taken in the MDL for all purposes, as long as
the deposition occurs on or before September 8, 2023. Coordination Order ¶ 3.f. While Plaintiffs
in this action did not elect to use one of their limited party-deposition slots to cross-notice the
deposition, the Plaintiffs did so with the reasonable expectation that because the deposition was
duly noticed more than one month before the close of fact discovery in this case, the deposition
would occur on or before September 8, 2023, and Plaintiffs would be able to use the deposition
as if it had been taken in this case.
Contrary to Defendant’s argument, that decision by Plaintiffs was not inappropriate or an
attempt by Plaintiffs to evade this Court’s imposition of a limit of ten party depositions per side.
Indeed, Plaintiffs are not asking to, and would not have been able to, examine the witness at the
deposition, without using one of the Plaintiffs’ ten party deposition slots. That said, Plaintiffs had
negotiated, at great length, a detailed Coordination Order to govern discovery in this case and the
related MDL case. Much of that Coordination Order undeniably inures to Google’s benefit.
Nonetheless, in exchange for the substantial benefits rendered to Google in that Order, Plaintiffs Page 3 PageID#
sought, and obtained, an Order from this Court that depositions taken during the Coordinated
Discovery Period should be available for use by either side as if they had been taken during the
discovery period. Coordination Order ¶ 3(f).
The Court should not permit Google to deprive Plaintiffs of this bargained-for benefit of
the Coordination Order. During the litigation and negotiations over the substance of the
Coordination Order, Plaintiffs consistently took the position that the Coordination Order should
benefit all parties, and not just Google. See, e.g., ECF No. 174, at 2-6. By contrast, with respect
to disputed issues, Google sought a version of the Coordination Order that gave Google, and
only Google, the full benefit of coordination. 1 Here, Google seeks to capitalize on its unique
position as a party in both cases to try to gain a tactical advantage over Plaintiffs by refusing to
seat its employee within a reasonable time frame, in order to deprive Plaintiffs of their
bargained-for right to use the deposition as if it had been taken during the Coordinated Discovery
Period. Google, not Plaintiffs, is trying to use this Court’s rulings regarding depositions and
discovery to gain a windfall.
For example, Google took the position that documents and data produced in the MDL after the
close of fact discovery in this case should be usable in this case without limitation. ECF No. 166,
at 6-7. Plaintiffs argued that such documents and data should only be usable here for
impeachment purposes, and only if produced to Plaintiffs within 14 days of receipt in the MDL.
ECF No. 174, at 2. In effect, Google sought one-sided control over what documents and data
would be usable in this case, based on its ability to access its own documents and data at will.
The Court rejected Google’s position and adopted Plaintiffs’ position but left open the possibility
of exceptions by order of the Court upon good cause shown. ECF No. 201, at 4. Page 4 PageID#
Google Overstates the Breadth of the Relief Sought by Plaintiffs
Contrary to what Google suggests, Plaintiffs are not seeking a blanket ruling from the
Court that any deposition noticed in the MDL on or before September 8, 2023, should be usable
for all purposes in this case. As Google well knows, there is only one such deposition that was
duly noticed during the period of Coordinated Discovery for which Google refuses to timely sit
its witness. The last date during the Coordinated Discovery Period to provide a proposed witness
(and all parties) three weeks’ notice of a deposition (as the Coordination Order requires) was
August 18, 2023 (three weeks before the fact discovery cutoff of September 8, 2023). Plaintiffs
are thus asking for relief on a single deposition, noticed over a month before the close of fact
discovery. It was reasonable for Plaintiffs to expect that Google would accommodate a
deposition noticed on August 3, 2023, before September 8, 2023.
Google points to the absence of plain language in the Coordination Order entitling
Plaintiffs to this relief, but that is why Plaintiffs are filing this motion. Regrettably, plain
language to cover this possibility was not included in the draft Coordination Order because
Plaintiffs did not anticipate that Defendant would engage in these self-serving tactics with
respect to the scheduling of its witnesses for deposition. That said, the litigation preceding entry
of the Coordination Order supports Plaintiffs’ position, not Google’s, as explained above.
CONCLUSION
Plaintiffs respectfully request that the Court grant this motion and permit them to make
full use of the deposition of the above-described Google employee, regardless of when it occurs,
in the same manner as if it had taken place on or before September 8, 2023.
Dated: August 31, Page 5 PageID#
Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 307-Fax: (202) 616-Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA Telephone: (804) 692-Facsimile: (804) 786-Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado,
Connecticut,
Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 366 Filed 08/31/23 Page 1 of 5 PageID# 5549
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
v.
Plaintiffs,
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO TAKE CERTAIN
DEPOSITIONS OUT OF TIME AND FOR OTHER RELIEF [ECF NO. 340]
Pursuant to the Court’s August 31, 2023 Order, at ECF No. 363, the only unresolved
matter raised by Plaintiff’s Motion to Take Certain Depositions Out of Time and for Other
Relief, ECF No. 340, is whether the Defendant, Google, will be permitted to delay scheduling a
duly-noticed Google witness for deposition in order to deny Plaintiffs the ability to use that
deposition as permitted under the Court’s Discovery Coordination Order. ECF No. 251.
On August 3, 2023, more than one month before the close of fact discovery in this case,
the MDL Plaintiffs, who are subject to this Court’s Discovery Coordination Order, noticed a
deposition of a Google employee who serves as the Engineering Director of the Google Ad
Manager product, the heart of Google’s ad technology suite that is central to this litigation.
Pursuant to the Discovery Coordination Order, this deposition was noticed three-weeks in
advance of its scheduled date, with notice provided to all Parties in this case, including Plaintiffs.
Coordination Order ¶ 3(b).
There is no question that this deposition of a key Google witness was noticed during the
Coordinated Discovery Period. Coordination Order ¶ 1(c) (defining “Coordinated Discovery
Period” to mean the time period after the Deadline for Substantial Completion of Document
Production in the Virginia Case and before the Fact Discovery Cutoff in the Virginia Case). The
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 366 Filed 08/31/23 Page 2 of 5 PageID# 5550
notice was sent during the period of time while fact discovery was underway in this case, and
with (more than) three-weeks’ advanced notice to the witness and all parties, including Plaintiffs.
The only question left for this Court to answer is whether Google can unilaterally refuse to seat
the witness for a deposition during the Coordinated Discovery Period in order to deprive
Plaintiffs of the ability to use that deposition as the Coordination Order provides.
The Court should grant Plaintiffs’ motion and permit Plaintiffs to make full use of this
deposition, as if it had occurred on or before September 8, 2023.
The Coordination Order Litigation Supports Plaintiffs’ Position
The Coordination Order governing this case and the MDL, see ECF No. 251, permits
Plaintiffs in this case to use a deposition transcript taken in the MDL for all purposes, as long as
the deposition occurs on or before September 8, 2023. Coordination Order ¶ 3.f. While Plaintiffs
in this action did not elect to use one of their limited party-deposition slots to cross-notice the
deposition, the Plaintiffs did so with the reasonable expectation that because the deposition was
duly noticed more than one month before the close of fact discovery in this case, the deposition
would occur on or before September 8, 2023, and Plaintiffs would be able to use the deposition
as if it had been taken in this case.
Contrary to Defendant’s argument, that decision by Plaintiffs was not inappropriate or an
attempt by Plaintiffs to evade this Court’s imposition of a limit of ten party depositions per side.
Indeed, Plaintiffs are not asking to, and would not have been able to, examine the witness at the
deposition, without using one of the Plaintiffs’ ten party deposition slots. That said, Plaintiffs had
negotiated, at great length, a detailed Coordination Order to govern discovery in this case and the
related MDL case. Much of that Coordination Order undeniably inures to Google’s benefit.
Nonetheless, in exchange for the substantial benefits rendered to Google in that Order, Plaintiffs
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 366 Filed 08/31/23 Page 3 of 5 PageID# 5551
sought, and obtained, an Order from this Court that depositions taken during the Coordinated
Discovery Period should be available for use by either side as if they had been taken during the
discovery period. Coordination Order ¶ 3(f).
The Court should not permit Google to deprive Plaintiffs of this bargained-for benefit of
the Coordination Order. During the litigation and negotiations over the substance of the
Coordination Order, Plaintiffs consistently took the position that the Coordination Order should
benefit all parties, and not just Google. See, e.g., ECF No. 174, at 2-6. By contrast, with respect
to disputed issues, Google sought a version of the Coordination Order that gave Google, and
only Google, the full benefit of coordination. 1 Here, Google seeks to capitalize on its unique
position as a party in both cases to try to gain a tactical advantage over Plaintiffs by refusing to
seat its employee within a reasonable time frame, in order to deprive Plaintiffs of their
bargained-for right to use the deposition as if it had been taken during the Coordinated Discovery
Period. Google, not Plaintiffs, is trying to use this Court’s rulings regarding depositions and
discovery to gain a windfall.
For example, Google took the position that documents and data produced in the MDL after the
close of fact discovery in this case should be usable in this case without limitation. ECF No. 166,
at 6-7. Plaintiffs argued that such documents and data should only be usable here for
impeachment purposes, and only if produced to Plaintiffs within 14 days of receipt in the MDL.
ECF No. 174, at 2. In effect, Google sought one-sided control over what documents and data
would be usable in this case, based on its ability to access its own documents and data at will.
The Court rejected Google’s position and adopted Plaintiffs’ position but left open the possibility
of exceptions by order of the Court upon good cause shown. ECF No. 201, at 4.
1
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 366 Filed 08/31/23 Page 4 of 5 PageID# 5552
Google Overstates the Breadth of the Relief Sought by Plaintiffs
Contrary to what Google suggests, Plaintiffs are not seeking a blanket ruling from the
Court that any deposition noticed in the MDL on or before September 8, 2023, should be usable
for all purposes in this case. As Google well knows, there is only one such deposition that was
duly noticed during the period of Coordinated Discovery for which Google refuses to timely sit
its witness. The last date during the Coordinated Discovery Period to provide a proposed witness
(and all parties) three weeks’ notice of a deposition (as the Coordination Order requires) was
August 18, 2023 (three weeks before the fact discovery cutoff of September 8, 2023). Plaintiffs
are thus asking for relief on a single deposition, noticed over a month before the close of fact
discovery. It was reasonable for Plaintiffs to expect that Google would accommodate a
deposition noticed on August 3, 2023, before September 8, 2023.
Google points to the absence of plain language in the Coordination Order entitling
Plaintiffs to this relief, but that is why Plaintiffs are filing this motion. Regrettably, plain
language to cover this possibility was not included in the draft Coordination Order because
Plaintiffs did not anticipate that Defendant would engage in these self-serving tactics with
respect to the scheduling of its witnesses for deposition. That said, the litigation preceding entry
of the Coordination Order supports Plaintiffs’ position, not Google’s, as explained above.
CONCLUSION
Plaintiffs respectfully request that the Court grant this motion and permit them to make
full use of the deposition of the above-described Google employee, regardless of when it occurs,
in the same manner as if it had taken place on or before September 8, 2023.
Dated: August 31, 2023
4
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 366 Filed 08/31/23 Page 5 of 5 PageID# 5553
Respectfully submitted,
JESSICA D. ABER
United States Attorney
JASON S. MIYARES
Attorney General of Virginia
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@usdoj.gov
/s/ Andrew N. Ferguson
ANDREW N. FERGUSON
Solicitor General
STEVEN G. POPPS
Deputy Attorney General
TYLER T. HENRY
Assistant Attorney General
/s/ Julia Tarver Wood
JULIA TARVER WOOD
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-0077
Fax: (202) 616-8544
Email: Julia.Tarver.Wood@usdoj.gov
Attorneys for the United States
Office of the Attorney General of Virginia
202 North Ninth Street
Richmond, VA 23219
Telephone: (804) 692-0485
Facsimile: (804) 786-0122
Email: thenry@oag.state.va.us
Attorneys for the Commonwealth of
Virginia and local counsel for the
States of Arizona, California,
Colorado,
Connecticut,
Illinois,
Michigan, Minnesota, Nebraska, New
Hampshire, New Jersey, New York,
North Carolina, Rhode Island,
Tennessee, Washington, and West
Virginia
5
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