Joint MOTION FOR LEAVE TO USE LOG-LEVEL DATA PRODUCED BY THIRD-PARTY PUBMATIC, INC. AFTER THE CLOSE OF FACT DISCOVERY 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. (Attachments: # (1) Proposed Order)(Freeman, Michael)
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
JOINT MOTION FOR LEAVE TO USE LOG-LEVEL DATA
PRODUCED BY THIRD-PARTY PUBMATIC, INC.
AFTER THE CLOSE OF FACT DISCOVERY
On August 31, outside counsel for third-party subpoena recipient PubMatic, Inc.,
(“PubMatic”) informed Plaintiffs’ counsel that due to the size, complexity, and required
engineering effort to process, upload, and transfer log-level data that is expected to be at the very
least many terabytes in size from PubMatic’s display advertising exchange product, PubMatic
believed that it was not likely that it would be able to complete the processing, upload, and
transfer process of the full data set by the close of fact discovery on September 8. Despite
PubMatic’s efforts to meet the fact discovery deadline, PubMatic is unlikely to be able to make a
full production by that date. As such, the parties jointly move the Court to permit use of
PubMatic’s late produced log-level data set.
In response to a Rule 45 subpoena from Plaintiffs to PubMatic served on the first day of
fact discovery, March 27, 2023, PubMatic collected a sample of log-level data from its exchange
product from June 2023. Pubmatic has represented that the data it is producing is data at the
individual impression level that provides transaction-by-transaction information about inter alia
individual impressions available from website publishers, bidders, bids, and the auction’s
winning bid.Page 2 PageID#
Since collecting exchange log-level data in June, PubMatic has worked to process and
make it available to both parties in a timely manner. Given the size of the data set and
engineering resources required, PubMatic now believes that it will not be able to make that
production by the close of fact discovery. Since the data was collected, Plaintiffs’ counsel has
actively negotiated with counsel for PubMatic to get the log-level data set produced promptly
and without undue burden. Counsel for PubMatic told Plaintiffs’ counsel that PubMatic began
final processing of the log-level data set in direct preparation for uploading the production on
August 25, a full two weeks prior to the fact discovery deadline.
Google did not request these data from PubMatic but does not oppose the relief sought
here, provided the production does not affect the deadlines for expert reports.
The parties submit that good cause exists to receive and use this data that will be
produced after September 8, 2023. Generally, when a party seeks to modify the scheduling order,
the Court must consider whether there is any “danger of prejudice to the non-moving party, the
length of delay and its potential impact on judicial proceedings, the reason for the delay, and
whether the movant acted in good faith.” Roe v. Howard, No. 1:16-cv-562, 2017 U.S. Dist.
LEXIS 187258, *1-2 (E.D. Va. June 30, 2017). Furthermore, a showing of “good cause” to
modify the scheduling order “requires ‘the party seeking relief [to] show that the deadlines
cannot reasonably be met despite the party’s diligence.’” Cook v. Howard, 484 Fed. Appx. 805,
815 (4th Cir. 2012) (unpublished per curiam) (citations omitted); accord Fed. R. Civ. P. 16, Adv. Comm. Notes (the movant must show that the current deadlines “cannot reasonably be met
despite the diligence of the party seeking” the modification). Good cause under this test is easily
shown. Page 3 PageID#
Each of the good cause factors favors permitting use of PubMatic’s log-level data if it is
produced after September 8. First, there will be no prejudice to another party. Second,
PubMatic is working to produce the data as close to the close of fact discovery as possible and
the production of the data will not impede the rest of the schedule. Third, the delay has resulted
from the size and complexity of the data. Finally, Plaintiffs have diligently pursued this
discovery. PubMatic was served a subpoena in time to begin collection of data and processing
well before September 8. Accordingly, good cause exists to allow these data to be used when it
is produced after September 8.
*
*
*
Plaintiffs and Google request that the Court grant this joint motion for the reasons set
forth above and to order that both parties may use PubMatic’s log-level data for all purposes as if
it had been produced on or before September 8, 2023. See U.S. ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (“We afford substantial discretion to a
district court in managing discovery and review discovery rulings only for abuse of that
discretion.”).
Dated: September 1,
Respectfully submitted, Page 4 PageID#
FOR PLAINTIFFS:
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
/s/ Michael J. Freeman
MICHAEL J. FREEMAN
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
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
Attorneys for the United States Page 5 PageID#
FOR DEFENDANT:
Of Counsel for Google LLC:
Justina Sessions (pro hac vice)
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Counsel for Google LLC
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER LLP
1901 L Street, NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 381 Filed 09/01/23 Page 1 of 5 PageID# 5955
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
JOINT MOTION FOR LEAVE TO USE LOG-LEVEL DATA
PRODUCED BY THIRD-PARTY PUBMATIC, INC.
AFTER THE CLOSE OF FACT DISCOVERY
On August 31, outside counsel for third-party subpoena recipient PubMatic, Inc.,
(“PubMatic”) informed Plaintiffs’ counsel that due to the size, complexity, and required
engineering effort to process, upload, and transfer log-level data that is expected to be at the very
least many terabytes in size from PubMatic’s display advertising exchange product, PubMatic
believed that it was not likely that it would be able to complete the processing, upload, and
transfer process of the full data set by the close of fact discovery on September 8. Despite
PubMatic’s efforts to meet the fact discovery deadline, PubMatic is unlikely to be able to make a
full production by that date. As such, the parties jointly move the Court to permit use of
PubMatic’s late produced log-level data set.
In response to a Rule 45 subpoena from Plaintiffs to PubMatic served on the first day of
fact discovery, March 27, 2023, PubMatic collected a sample of log-level data from its exchange
product from June 2023. Pubmatic has represented that the data it is producing is data at the
individual impression level that provides transaction-by-transaction information about inter alia
individual impressions available from website publishers, bidders, bids, and the auction’s
winning bid.
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 381 Filed 09/01/23 Page 2 of 5 PageID# 5956
Since collecting exchange log-level data in June, PubMatic has worked to process and
make it available to both parties in a timely manner. Given the size of the data set and
engineering resources required, PubMatic now believes that it will not be able to make that
production by the close of fact discovery. Since the data was collected, Plaintiffs’ counsel has
actively negotiated with counsel for PubMatic to get the log-level data set produced promptly
and without undue burden. Counsel for PubMatic told Plaintiffs’ counsel that PubMatic began
final processing of the log-level data set in direct preparation for uploading the production on
August 25, a full two weeks prior to the fact discovery deadline.
Google did not request these data from PubMatic but does not oppose the relief sought
here, provided the production does not affect the deadlines for expert reports.
The parties submit that good cause exists to receive and use this data that will be
produced after September 8, 2023. Generally, when a party seeks to modify the scheduling order,
the Court must consider whether there is any “danger of prejudice to the non-moving party, the
length of delay and its potential impact on judicial proceedings, the reason for the delay, and
whether the movant acted in good faith.” Roe v. Howard, No. 1:16-cv-562, 2017 U.S. Dist.
LEXIS 187258, *1-2 (E.D. Va. June 30, 2017). Furthermore, a showing of “good cause” to
modify the scheduling order “requires ‘the party seeking relief [to] show that the deadlines
cannot reasonably be met despite the party’s diligence.’” Cook v. Howard, 484 Fed. Appx. 805,
815 (4th Cir. 2012) (unpublished per curiam) (citations omitted); accord Fed. R. Civ. P. 16, 1983
Adv. Comm. Notes (the movant must show that the current deadlines “cannot reasonably be met
despite the diligence of the party seeking” the modification). Good cause under this test is easily
shown.
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 381 Filed 09/01/23 Page 3 of 5 PageID# 5957
Each of the good cause factors favors permitting use of PubMatic’s log-level data if it is
produced after September 8. First, there will be no prejudice to another party. Second,
PubMatic is working to produce the data as close to the close of fact discovery as possible and
the production of the data will not impede the rest of the schedule. Third, the delay has resulted
from the size and complexity of the data. Finally, Plaintiffs have diligently pursued this
discovery. PubMatic was served a subpoena in time to begin collection of data and processing
well before September 8. Accordingly, good cause exists to allow these data to be used when it
is produced after September 8.
*
*
*
Plaintiffs and Google request that the Court grant this joint motion for the reasons set
forth above and to order that both parties may use PubMatic’s log-level data for all purposes as if
it had been produced on or before September 8, 2023. See U.S. ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (“We afford substantial discretion to a
district court in managing discovery and review discovery rulings only for abuse of that
discretion.”).
Dated: September 1, 2023
Respectfully submitted,
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 381 Filed 09/01/23 Page 4 of 5 PageID# 5958
FOR PLAINTIFFS:
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
/s/ Michael J. Freeman
MICHAEL J. FREEMAN
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
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
Attorneys for the United States
4
PDF Page 6
Case 1:23-cv-00108-LMB-JFA Document 381 Filed 09/01/23 Page 5 of 5 PageID# 5959
FOR DEFENDANT:
Of Counsel for Google LLC:
Justina Sessions (pro hac vice)
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
Telephone: (202) 777-4500
Facsimile: (202) 777-4555
eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite 501
Alexandria, VA 22314
Telephone: (703) 549-5354
Facsimile: (703) 549-5355
craig.reilly@ccreillylaw.com
Counsel for Google LLC
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP
55 2nd Street
San Francisco, CA 94105
Telephone: (415) 490-2000
Facsimile: (415) 490-2001
dbitton@axinn.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER LLP
1901 L Street, NW
Washington, DC 20036
Telephone: (202) 912-4700
Facsimile: (202) 912-4701
bjustus@axinn.com
5
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