Digital Ad Tech Plaintiffs Seek to Compel Google to Produce ‘Improperly Withheld’ Documents
DOJ and the eight state plaintiffs in litigation alleging Google monopolized the market for digital ad tech seek in camera review of 21 documents they believe the company “improperly withheld or redacted” on the basis of the attorney-client privilege or other protections. Their memorandum of law Friday (docket 1:23-cv-00108) in U.S. District Court for Eastern Virginia in Alexandria in support of their motion to compel Google to produce the documents cited evidence “calling into question the breadth of Google’s privilege assertions.”
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The plaintiffs want an order instructing Google to provide unredacted copies of the 21 documents directly to the court, said the memorandum. They believe the documents contain information “highly relevant” to their claims or the company’s “anticipated defenses,” it said.
The plaintiffs picked the documents for in camera inspection because they typify “fundamental areas of disagreement” between the plaintiffs and Google about “the proper assertion of privileges,” said the memorandum: “The parties have met and conferred about this issue and were unable to reach resolution.” The plaintiffs think the court’s ruling on this “subset” of representative documents “will facilitate more productive meet and confer discussions regarding other outstanding privilege disputes,” it said. To the extent those talks aren’t “fruitful,” the plaintiffs may return to the court for “any additional necessary relief,” it said.
During the multiyear investigation of Google’s allegedly anticompetitive conduct in the digital ad tech market that preceded the Jan. 24 filing of the lawsuit, DOJ “became concerned about Google’s invocation of the attorney-client and other privileges to shield documents and information from discovery,” said the memorandum: “This concern resulted in extensive discussion and correspondence between the parties about Google’s privilege assertions.”
Google withheld from production, at least in part, “hundreds of thousands of responsive documents purportedly on the basis of privileges,” said the memorandum. The company “also engaged in a series of belated, and sometimes inconsistent, clawbacks of purportedly privileged documents, at times on the eve, or in the middle, of depositions,” it said. After DOJ confronted Google’s witnesses with certain documents at investigative depositions, “Google clawed back and reproduced the documents a second or third time with additional redactions,” it said.
For the purposes of their motion for in camera inspection and to compel production of the 21 documents, the plaintiffs picked “exemplars” of three categories of documents for which Google “failed to substantiate the scope of its privilege claims,” said the memorandum. The first category includes documents created under Google’s corporate “Communicate with Care” policy that seeks to shield from production materials containing sensitive business information, it said. A second tranche includes documents on “certain code-named, business-led projects,” it said. A third includes documents “clawed back by Google” where the plaintiffs believe the company “is unlikely to be able to sustain its claim of privilege,” it said.