As discovery continues in the U.S. Department of Justice’s (DOJ) antitrust suit against Google for monopolization of several online search and advertising-related markets, Google moved to exclude an expert report it claimed is untimely. Monday’s motion asserts that the DOJ has no legitimate basis for offering a new privacy-focused expert in the third and final round of expert reports when it could have done so months ago.
The suit dates to 2020 when the federal government and separately, many states, accused Google of acting as a “monopoly gatekeeper” by successfully acquiring and maintaining monopoly power in online search and advertising markets in a manner antithetical to the nation’s antitrust laws. The federal government seeks injunctive relief requiring Google to scale back its dominance.
In December 2020, Google answered the complaint, raising multiple affirmative defenses including failure to state a claim, procompetitive business justification, and that the relief sought is contrary to public interest.
Since then, the parties have engaged in discovery, and are now four months into a five-month expert discovery period, with depositions beginning earlier this week. Google’s motion explains that since inception of the expert period, the parties have exchanged voluminous expert reports in the opening round and the rebuttal round.
Now, having served their third and final round of reply expert reports, Google claims it is too late for the DOJ to “put privacy at issue in the case.” The motion further notes that “whatever expert testimony the DOJ wished to offer, the time to make the required disclosures was in the first round of expert reports.”
Google claims the DOJ’s late disclosure disadvantages it because it will have no opportunity to offer a responsive report. In addition, the motion says that the expert advances a brand new privacy-related theory that the DOJ has not introduced with any of its other experts.
The DOJ’s “strategy of hiding the ball until the last round of reports is not permitted,” the motion says, asking the court to exclude it pursuant to the case management order and the Federal Rules of Civil Procedure.
Google is represented by Williams & Connolly LLP, Wilson Sonsini Goodrich & Rosati P.C. and Ropes & Gray LLP.
