Within Unlimited supports maintaining under seal portions of the FTC’s Nov. 18 administrative motion in the agency’s lawsuit to block Meta’s Within buy, said its statement Wednesday (docket 5:22-cv-04325) in U.S. District Court for Northern California for Los Angeles. Within’s submission “significantly narrows the information that would be maintained under seal,” it said. The proposed redactions “reflect Within’s good-faith effort to seek sealing of only that information which is competitively sensitive and cannot be protected from public disclosure through any less restrictive means,” it said. “Within joins in Meta’s requests to protect its confidential information contained in the document at issue.”

California Superior Court Judge Curtis Karnow in San Francisco denied without prejudice Amazon’s motion to keep sealed portions of a California complaint alleging the company skirted antitrust and unfair competition laws (see 2210130034), said an order he signed Friday (docket CGC-22-601826). The Oct. 11 declaration from Cristina Fernandez, Amazon corporate counsel-competition, in support of the motion to seal was flawed because “it does not tie a rationale for redactions to any specific redaction, leaving it to the court to guess which rationale supports which specific redaction,” said Karnow’s order. He cautioned Amazon that “literally every word sought to be redacted must be shown to be confidential information subject to sealing.” The complaint remains “provisionally under seal,” pending Amazon’s renewed motion to seal, said the judge. California Attorney General Rob Bonta (D) filed the heavily redacted complaint Sept. 15, alleging Amazon "makes consumers think they are getting the lowest prices possible, when in fact, they cannot get the low prices that would prevail in a freely competitive market." That's because Amazon "has coerced and induced its third-party sellers and wholesale suppliers to enter into anticompetitive agreements on price," said Bonta.

Virtual-reality company Valve, a nonparty to the FTC’s litigation to block Meta’s Within Unlimited buy (see 2210140002), wants the U.S. District Court for Northern California in San Jose to maintain under seal the “highly confidential material” in the reports of two Meta expert witnesses, Dennis Carlton and Michael Zyda, said the company’s statement Friday (docket 5:22-cv-04325). Portions of both reports contain nonpublic R&D and business information regarding Valve’s “continuing development of its VR technology and products,” it said. Disclosure of this information “could cause competitive harm to Valve by revealing Valve’s R&D and business strategies to competitors in the VR hardware market, thus undercutting Valve’s position in the marketplace,” it said. Valve “does not disclose or share this information outside the company, particularly to any competitor,” it said. The company “has expended significant resources and implemented strict measures to prevent disclosure of the confidential information” contained in the expert reports, “including by storing such information under password protection on internal Valve servers, limiting access to certain of the information described above to certain Valve employees with a specific need to know, and not making such information publicly available.”

U.S. District Judge James Donato for Northern California in San Francisco wants to hold an evidentiary hearing on one of three dates to address the discovery dispute over Google's electronic chat data in the multistate antitrust lawsuit over Android software app distribution, said a text-only order Wednesday (docket 3:21-cv-05227). Donato wants the parties’ consensus by Nov. 28 about whether the hearing should be held Jan. 10 at 10 a.m. PST, Jan. 11 at 10 a.m. PST or Jan. 12 at 1:30 p.m. PST, said his order. Both sides will confer on a joint proposed witness list with testimony topics that will be due seven court days before the hearing date, he said. Donato anticipates testimony by Google witnesses about the use and operation of the electronic chat system, including storage and deletion policies, guidelines for chat content, and examples of typical chat communications. Google will present this information through direct examinations of the witnesses, and plaintiffs will cross-examine. Roughly three dozen states plus the District of Columbia sued in July 2021 to enjoin Google from unlawfully restraining trade and maintaining monopolies in the markets for Android software app distribution and for payment processing of digital content purchased within Android apps in the U.S.

The July 22 complaint in which Appen Media, owner and operator of several newspapers in Georgia, alleged Google and Meta have “monopolized the digital advertising market thereby strangling a primary source of revenue for newspapers across the country,” was transferred Tuesday to the U.S. District Court for Southern New York, to be consolidated with similar cases. The U.S. Judicial Panel on Multidistrict Litigation, in a conditional transfer order Nov. 2 (docket 3010), said the panel transferred 18 cases to the Southern District of New York in August 2021 for coordinated or consolidated pretrial proceedings, and that 11 more cases had since been transferred there. The Appen Media v. Google action appears to involve “questions of fact that are common to the actions previously transferred” and consolidated under U.S. District Judge Kevin Castel for the Southern District of New York, said the panel.

Google’s excuses for its “ongoing destruction” of daily chats as evidence in Utah’s multistate antitrust lawsuit against Google’s app store (see 2204010037) don't “remotely pass muster,” said the states’ reply Thursday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco in support of their motion for “significant sanctions” against the company. Google’s argument that its efforts were “reasonable” is “irreconcilable with the systematic and avoidable destruction” of relevant chats, plus “its continued failure to explain why it did not suspend automatic deletion, including after being expressly put on notice,” they said. Google’s argument that it lacked the “requisite intent” ignores that Google still, to this day, continues the wholesale destruction of chats, that it withheld information about the destruction of chats for months, and that its custodians “intentionally divert sensitive conversations” to chat to avoid discovery, they said.

The U.S. District Court for the District of Columbia should require the deposition of two venture capitalists who have direct knowledge of the competitive aspects of Meta’s purchase of Instagram and WhatsApp, the FTC said Monday in a filing in docket 1:20-cv-03590 (see 2210270074). The agency is seeking the depositions of Roelof Botha and Jim Goetz. Botha heads Sequoia Capital, which the filing describes as the “only venture capital firm that invested in both Instagram and WhatsApp.” Goetz is a former member of WhatsApp’s board of directors and a retired Sequoia partner. Botha was lead investor in Instagram’s Series B funding, and Goetz led at “least three rounds of investment in WhatsApp and helped negotiate WhatsApp’s eventual acquisition by Meta,” the agency said. Sequoia filed to quash both deposition requests, which the FTC asked the court to reject and instruct deposition before year-end. Their “personal involvement in and knowledge of Instagram and WhatsApp respectively prior to Meta acquiring both companies are plainly relevant to the FTC’s claims that Meta acquired Instagram and WhatsApp to eliminate competitive threats that emerged during the shift from desktop to mobile,” the FTC said, arguing the depositions would require “minimal burden” for the two. The agency is seeking information that isn’t relevant to any “issues, claims, or defenses in this antitrust litigation, and is cumulative of other information the FTC already possesses,” Sequoia said. “Moreover, deposing Sequoia’s top executive and its former senior executive on topics more than a decade old is unduly burdensome and not proportional to the needs of this case.” Sequoia said it has fulfilled legal obligations to respond to discovery requests in the case, and the agency is engaging in a “fishing expedition” at the expense of nonparties who have nothing to do with the case.

U.S. Magistrate Judge Virginia DeMarchi for Northern California in San Jose denied Meta’s motion to compel discovery from Apple, said her Friday order (docket 5:22-cv-04325). The court accepts Meta’s “characterization” that the discovery it seeks from non-party Apple’s competitive ambitions in the virtual-reality fitness app landscape “is highly relevant to its defenses” in the FTC’s lawsuit to block Meta’s Within Unlimited buy on antitrust grounds, said DeMarchi. But the court “is not persuaded that Meta requires the relief it seeks here in order to fully explore in deposition the information it believes is critical to its defenses,” she said. Meta’s main concern is that because Apple is a competitor, “its review and selection of documents for production will be colored by competitive bias, even if its counsel endeavor to conduct the review and production in good faith,” said the order. For this reason, Meta says, the proposed “custodial searches” it seeks in discovery are necessary to provide an objective check on Apple’s production of witnesses and documents, it said. But the court is “skeptical of the premise that Apple’s status as Meta’s competitor necessarily implies that Apple’s counsel and the company representatives working with counsel cannot be relied upon to comply with their discovery obligations,” said the order. “That premise finds no support in the case law” before the court, and Meta “points to no other facts or circumstances” indicating that an objective check on Apple’s production “is warranted here,” it said.

Google “took reasonable steps” to “preserve” all relevant user chat information in Utah’s multistate antitrust lawsuit against Google’s app store, the platform argued Thursday in 3:21-cv-05227 before the U.S. District Court for the Northern District of California (see 2204010037). Google asked the court to deny the states’ request for a sanction in the form of an adverse inference instruction. The states have failed to demonstrate they “suffered any prejudice” and failed to show Google intended to “deprive” the plaintiffs of data and information. Google argued it “fully complied” with discovery obligations, including the preservation of relevant chats and the issuing of "litigation hold notices regarding chat preservation and automatically preserving certain categories of chats.”

U.S. District Judge Edward Davila for Northern California in San Jose should “maintain under seal” 10 portions of the FTC’s amended complaint to block Meta’s Within Unlimited buy to protect sensitive business information, said Meta in a statement of support Thursday (docket 5:22-cv-04325) for keeping the redactions. Meta’s proposal “significantly narrows the information that would be maintained under seal,” it said. The proposed redactions “reflect Meta’s good-faith effort to seek sealing of only that information which is competitively sensitive, contained in internal documents only, and cannot be protected from public disclosure through any more restrictive means,” it said. They involve statements of “internal strategy” and quotations on purchase pricing in “prior non-public acquisitions,” plus financial data “not required to be publicly disclosed,” it said.