Google Opposes Discovery Sanctions in DOJ’s Monopoly “Gate-Keeper” Suit

Late last week, Google LLC said that the federal government’s charge that it unfairly kept back evidence in the antitrust case proceeding in the District of Columbia was unfounded. The opposition brief argued that sanctions and an order requiring it to turn over emails are unwarranted given the legitimate nature of Google’s evidentiary withholdings.

The U.S. Department of Justice (DOJ) filed suit against Google in October 2020, following a congressional report that found the domestic power of four of the world’s largest tech companies—Apple, Google, Facebook, and Amazon—problematic from an antitrust point of view.

Google answered the DOJ’s complaint and since, the case has moved through discovery.

Last week’s redacted filing is one of few non-sealed documents that concerns the discovery dispute. It asserted that the government’s motion for sanctions or in the alternative, to compel certain discovery, stems from the DOJ’s attempt to transform a Google practice calls, “‘communicate with care’ into a scheme to thwart government investigations or discovery.”

Instead, Google argued that its policy instructing lay employees to copy in-house counsel on certain emails, label those emails “privileged and confidential,” and encouraging them to “think carefully about what they reduce to writing in order to protect commercially sensitive and/or legitimately privileged communications,” is sound.

The company averred that it has engaged in document review and complied with secondary review requests in the case of emails contested by the government. “Plaintiffs come nowhere close to proving the bad-faith misconduct that is required to strip a party of its privilege protections as a sanction under the Court’s inherent authority,” the opposition said.

The plaintiffs’ alternative motion to compel seeks the same result, Google argued: “blanket removal of privilege protection over large swathes of unidentified emails.” This request overshoots the mark, the tech titan argued, alleging that privilege must be assessed on a document-by-document basis.

Google is represented by Williams & Connolly LLP, Wilson Sonsini Goodrich & Rosati, and Ropes and Gray Ropes & Gray LLP