Google Seeks Docs From Third-Party Yelp in Defense of DOJ’s Antitrust Suit

A motion to compel submitted by defendant Google LLC on Monday asks the District of Columbia court overseeing a Department of Justice antitrust suit to compel the production of documents from proposed custodian Luther Lowe, Yelp’s Senior Vice President of Public Policy. According to the defendant, the documents Lowe holds are crucial to its defense. The motion explains that Yelp’s long-held views about Google’s alleged monopolism were “conceived and advanced” by Lowe and reportedly are central to the government’s theory of liability.

The case, filed by the federal government and a handful of states, is proceeding through discovery after Google answered the complaint in December 2020. In the complaint, the plaintiffs alleged that Google acted as a “monopoly gatekeeper” and successfully acquired and maintained monopoly power in several markets: the general search services, search advertising, and general search text advertising markets. The lawsuit seeks injunctive relief to restrain Google from its allegedly anticompetitive conduct.

This week’s motion explains that Lowe is “a non-lawyer who has testified before the U.S. Senate and Ohio Senate, has made numerous appearances on television and podcasts, and has given other commentary seeking antitrust enforcement against Google on the very allegations ultimately brought by the Plaintiffs.” As such, Google alleges that there is no comparable custodian.

Despite reaching agreement with Yelp as to five other custodians, the online local business search and review platform has reportedly refused to produce documents responsive to this subpoena. Google alleges that despite the tailored nature of its request, Yelp has erected broad objections that are legally baseless.

The seven-page motion argues that Yelp has declined Google’s proposals to reduce the burden imposed by document production. Accordingly, its refusals undercut arguments that the request is overburdensome, Google contends.

In addition, Google asserts that Yelp cannot claim First Amendment protection. “Weighed against the clear relevance of the information Google seeks, as Yelp cannot ‘show that there is some probability that disclosure will lead to reprisal or harassment,’” the motion argues.

The defendant requests that the court order Yelp to produce the documents by October 29 with an accompanying privilege log regarding any responsive documents withheld on privilege or other grounds. Yelp is to file a response by October 8.

Google is represented by Williams & Connolly LLP, Wilson Sonsini Goodrich & Rosati P.C. and Ropes & Gray LLP. Yelp is represented by Hueston Hennigan LLP and Aegis Law Group LLP.