MOTION to Take Depositions Out of Time 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)
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
PLAINTIFFS’ MOTION TO TAKE CERTAIN PARTY DEPOSITIONS AFTER FACT
DISCOVERY CUTOFF
This motion concerns the scheduling of the depositions of an individual Google employee
and 30(b)(6) depositions of the United States and of Google.
A. Individual Google Employee The deposition was originally scheduled for September 6, 2023, by the mutual agreement
of the parties.
On August 28, 2023, Google informed Plaintiffs that it would no longer be possible to
conduct the deposition on or before the fact discovery cutoff of September 8, 2023, because the
witness is ill. As a result, the witness cannot sit for a deposition or be in close contact with others
until he recovers.
On September 1, 2023, Google alerted Plaintiffs’ counsel and the Court to a document
production issue, the scope of which it is still attempting to determine. An early approximation
suggests that, with respect to the four Google party witnesses scheduled to be deposed during
the week of September 4, 2023, there are over 20,000 documents that have not yet been
produced to Plaintiffs. In light of this recent development, and the fact that the scope of the
problem is still being determined as of the time of this filing, the parties jointly request the
Court’s leave to take these four depositions in addition to the one identified in this section after
the current fact discovery cutoff of September 8, 2023, on dates to be determined after the scope
of the document production problem has been determined. Page 2 PageID#
The parties therefore jointly request the Court’s leave to conduct this deposition at a
mutually agreed-upon date and time after September 8, 2023, but no later than September 30,
2023. The parties further jointly request that they be permitted to make use of this deposition as
if it had been taken on or before September 8, 2023.
The parties submit that good cause exists to conduct this deposition 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.
Each of the good cause factors favors extending the current schedule for this deposition.
First, there will be no prejudice to another party. Second, this deposition is expected to be
completed promptly and will not impede the rest of the schedule. Third, the delay is a result of an
unanticipated illness of the witness. Finally, the parties have diligently pursued this discovery.
This deposition was noticed on July 28, 2023, and was previously scheduled for September 6.
Accordingly, good cause exists to allow the deposition to be taken after September 8.
Accordingly, Plaintiffs and Google request that the Court grant this joint motion for leave
to depose this Google witness after the close of fact discovery for the reasons set forth above, Page 3 PageID#
and to use that deposition as if it occurred 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.”).
B. 30(b)(6) Deposition of Google
The parties also jointly request the Court’s leave to conduct Plaintiffs’ 30(b)(6)
deposition of Google at mutually agreed-upon dates and times after September 8, 2023, but no
later than September 30, 2023. Up until today, September 1, 2023, the scope of that deposition
was still under negotiation and still under review by the Court. Plaintiffs also need additional
time to assess the document production issue identified by Google in footnote 1. Plaintiffs
submit that the same good cause factors stated previously support this extension of time.
Dated: September 1,
Respectfully submitted,
(signatures on the following pages) 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
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 384 Filed 09/01/23 Page 1 of 4 PageID# 5965
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
PLAINTIFFS’ MOTION TO TAKE CERTAIN PARTY DEPOSITIONS AFTER FACT
DISCOVERY CUTOFF
This motion concerns the scheduling of the depositions of an individual Google employee
and 30(b)(6) depositions of the United States and of Google.
A. Individual Google Employee 1
The deposition was originally scheduled for September 6, 2023, by the mutual agreement
of the parties.
On August 28, 2023, Google informed Plaintiffs that it would no longer be possible to
conduct the deposition on or before the fact discovery cutoff of September 8, 2023, because the
witness is ill. As a result, the witness cannot sit for a deposition or be in close contact with others
until he recovers.
On September 1, 2023, Google alerted Plaintiffs’ counsel and the Court to a document
production issue, the scope of which it is still attempting to determine. An early approximation
suggests that, with respect to the four Google party witnesses scheduled to be deposed during
the week of September 4, 2023, there are over 20,000 documents that have not yet been
produced to Plaintiffs. In light of this recent development, and the fact that the scope of the
problem is still being determined as of the time of this filing, the parties jointly request the
Court’s leave to take these four depositions in addition to the one identified in this section after
the current fact discovery cutoff of September 8, 2023, on dates to be determined after the scope
of the document production problem has been determined.
1
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 384 Filed 09/01/23 Page 2 of 4 PageID# 5966
The parties therefore jointly request the Court’s leave to conduct this deposition at a
mutually agreed-upon date and time after September 8, 2023, but no later than September 30,
2023. The parties further jointly request that they be permitted to make use of this deposition as
if it had been taken on or before September 8, 2023.
The parties submit that good cause exists to conduct this deposition 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.
Each of the good cause factors favors extending the current schedule for this deposition.
First, there will be no prejudice to another party. Second, this deposition is expected to be
completed promptly and will not impede the rest of the schedule. Third, the delay is a result of an
unanticipated illness of the witness. Finally, the parties have diligently pursued this discovery.
This deposition was noticed on July 28, 2023, and was previously scheduled for September 6.
Accordingly, good cause exists to allow the deposition to be taken after September 8.
Accordingly, Plaintiffs and Google request that the Court grant this joint motion for leave
to depose this Google witness after the close of fact discovery for the reasons set forth above,
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 384 Filed 09/01/23 Page 3 of 4 PageID# 5967
and to use that deposition as if it occurred 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.”).
B. 30(b)(6) Deposition of Google
The parties also jointly request the Court’s leave to conduct Plaintiffs’ 30(b)(6)
deposition of Google at mutually agreed-upon dates and times after September 8, 2023, but no
later than September 30, 2023. Up until today, September 1, 2023, the scope of that deposition
was still under negotiation and still under review by the Court. Plaintiffs also need additional
time to assess the document production issue identified by Google in footnote 1. Plaintiffs
submit that the same good cause factors stated previously support this extension of time.
Dated: September 1, 2023
Respectfully submitted,
(signatures on the following pages)
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 384 Filed 09/01/23 Page 4 of 4 PageID# 5968
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
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
4
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