Google's Claims of Privilege in Antitrust Suit Are Overbroad, Say Plaintiffs

Though DOJ and its state co-plaintiffs welcome production of six of 21 documents challenged by Google in the antitrust suit over the company’s digital advertising business, its reversal of its prior privilege determinations “underscores the overbreadth of Google's claims of privilege in the first place.” So said DOJ’s reply Thursday (docket 1:23-cv-00108) in support of Google’s motion for in camera inspection and to compel production of documents wrongfully withheld as privileged in U.S. District Court for Eastern Virginia in Alexandria.

DOJ and eight state plaintiffs allege Google monopolized the market for digital ad tech and 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 (see 2305220006).

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 a May memorandum of law in support of their motion to compel. At a June 2 hearing, the parties said they resolved a dispute over successor-custodian documents and a portion of the remaining issues in the pending motion. U.S. Magistrate Judge John Anderson deferred ruling on the remaining issues and asked the parties to continue efforts to resolve remaining issues (see Ref:2306070066]), with a status report due Tuesday.

That Google withdrew or narrowed its privilege claims for six of the 21 documents that plaintiffs challenged highlights the “pervasiveness” of its “Communicate with Care policy” that’s designed to “shield from discovery important business discussions through improper assertions of privilege,” said plaintiff’s Thursday reply.

Google continues to assert privilege claims for 19 documents within the sample identified in plaintiffs’ initial motion, “but it has failed to meet its burden to substantiate those claims,” they said. “Resting primarily on a conclusory, boilerplate declaration from inhouse counsel and an earlier 30(b)(6) deposition where its corporate representative repeatedly refused to answer proper questions, Google asks this Court to simply trust its blanket assertions of privilege, forgoing in camera review,” said the reply.

The defendant’s arguments and factual support for its claim “fall short of what is required” to substantiate claims of privilege over “broad swaths of documents created by non-lawyers” that serve “obvious business purposes,” the reply said. Google’s response doesn’t explain why in camera review wouldn't be helpful for the court to apply the 4th Circuit U.S. Court of Appeals attorney-client privilege law, including the limitations inherent in that body of law, it said.

Google’s “belated, selective removal of redactions from several of Plaintiffs’ exemplar documents are indicative of Google’s inconsistent and overbroad approach to privilege,” said the reply. Collectively, they demonstrated "ample factual basis" to support in camera inspection of the other exemplar documents identified in plaintiffs’ motion, the reply said.

In light of Google’s withdrawn privilege claims for two documents initially challenged by plaintiffs, "which reduced the sample of documents for the Court to review in camera," plaintiffs asked the court to also review in camera two more documents that are similar to the withdrawn documents, "but where Google persists in asserting privilege."