Trial is already limited in visibility to those who personally attend court
(Bloomberg) — The US Department of Justice has removed public access to emails, charts and internal presentations from Alphabet Inc.’s Google that had come out as evidence in its landmark antitrust lawsuit against the tech titan.
Google had challenged the government’s posting of the documents online, and the court was sympathetic to its concerns. The result: a trial much more difficult for the public to follow than the similarly monumental and widely watched antitrust case against Microsoft Corp. in the 1990s.
The trial, which is expected to last 10 weeks, is the biggest legal reckoning for a big tech company since then. With all the exhibits and evidence unearthed for discussion, it’s also a rare look at the inner workings of one of the most influential businesses of the modern era.
As the Justice Department presented its case, it published exhibits used in court, which aren’t otherwise accessible to the public apart from in-person attendance. The site used to include a section on trial exhibits with links to the documents; those links have since been removed. Google itself has also routinely made trial materials public after several days of court hearings, including the full presentation from its opening statement.
Though US District Judge Amit Mehta, who is presiding over the trial, said he would make a ruling on the public’s access to evidence presented in court on Wednesday, the exhibits remain offline and the court hasn’t said when or whether they will be reposted. A Justice Department spokeswoman declined to comment Wednesday on when exhibits might be again made available.
The court exhibits are likely to eventually become part of the public record — which Google took issue with, saying that, for instance, employees’ email addresses or phone numbers would be revealed.
It’s a far cry from the Microsoft trial in the late 1990s, when every major news organization covered the hearings daily. Back then, Microsoft was unmatched as an iconic tech company, and its chairman, Bill Gates, was as ubiquitous as the basketball star Michael Jordan. That trial, which lasted over eight months, saw news outlets giving the proceedings about as much scrutiny as the Clinton impeachment. When a federal appeals court agreed in 1999 to make Gates’ infamous deposition public, it was seen as a win for the public’s right to information.
During the Tuesday testimony of Michael Roszak, Google’s vice president for finance, the Justice Department sought to offer notes that he had made during a July 2017 training Google offered on communications. Among the notes, he wrote: “Google is able to ignore demand and focus on supply.” Roszak began testifying about the document in open court on Tuesday afternoon, saying the statements in it were “full of hyperbole and exaggeration.”
Google objected to including the document as an exhibit, saying it wasn’t relevant to the case.
“Just so we understand what’s at stake here, every document they push into evidence they post on their website, and it gets picked up far and wide,” Google lawyer John Schmidtlein said in his objection. “This isn’t a business record, and it’s totally irrelevant to these proceedings.”
The judge said he was surprised to discover the Justice Department had been posting exhibits on their website, though he acknowledged that “once it’s admitted into evidence, in fairness, it is a public document.”
“That’s something I wish I’d been told,” Mehta said. “I think a judge is told before evidence in the record is actually put on a publicly available website.”
Kenneth Dintzer, a government attorney, quickly apologized. In the next few hours, the Justice Department removed all the exhibits that had previously been made public.
On Wednesday morning, Mehta met with Schmidtlein and the lead lawyers for the Justice Department and the states in his private chambers. The court then met in a closed session to continue Roszak’s testimony until midafternoon.
At the end of the day Wednesday, Google lawyer Edward Bennett repeated the argument that the document authored by Roszak shouldn’t be admitted.
Mehta ruled that the exhibit would be admitted, since Roszak was a Google employee engaged in a company sponsored training at the time the document was created. But he expressed frustration that Google had put him “in a pickle” since it insisted the testimony that would have provided context be held in closed session.”I’m in the position where the testimony that accompanied this document was done in a closed session. So all context is lost,” Mehta said. “This doesn’t contain anything that would qualify as confidential.”“I understand it’s somewhat embarrassing to the witness,” he added.
Neither Mehta, Google or the Justice Department said anything in court Wednesday about when or where future exhibits in the trial would be made available.
The following are exhibits provided by Google or the Justice Department downloaded before their removal Tuesday:
Google Exhibit – Excerpt of DX440
Gov Exhibit – UPX0001 – Google presentation- Google Search Ads 101 (April 17, 2020)
Gov Exhibit – UPX0076 – Google presentation – Search Entry points on Android (September 28, 2016)
Gov Exhibit – UPX0123 – Google presentation – On Strategic Value of Default Home Page to Google (March 27, 2007)
Gov Exhibit – UPX0134 – Email from Tim Carter (Google), to Chris Barton (Google) Re Platforms (April 28, 2011)
Gov Exhibit – UPX0178 – Email from Udi Manber (Google) to Hal Varian (Google), Re scale (August 26, 2009)
Gov Exhibit – UPX0184 – Email from Hal Varian (Google) to Dana Wagner (Google), Re Fwd Time Mag article on Bing (August 26, 2009)
Gov Exhibit – UPX0314 – Email from Jim Kolotourus (Google, to Christopher Li (Google) Re Google search powering in-app search on device (June 10, 2020)
Gov Exhibit – UPX0452 – Email from Hal Varian (Google) to David Stallibras (Fingleton), Re passing along ad prices (September 9, 2020)
Gov Exhibit – UPX0461 – Email from Jerry Dischler (Google), to Sridhar Ramaswamy (Google) Re- Internet – Takeaways From Large NA Search Agency Check (April 21, 2016)
Gov Exhibit – UPX0499 – Email from Hal Varian (Google) to Penny Chu (Google), Re Latest market share analysis (October 9, 2009)
Gov Exhibit – UPX0522 – Email from Jerry Dischler (Google), to Anil Sabharwal (Google) Re- Important SQV Update (May 3, 2019)-1
Gov Exhibit – UPX0960 – Google Presentation – On Strategic Value of Browser Home Page to Google (April 2, 2007)
Gov Exhibit – UPX1066 – Google presentation – Antitrust Basics for Search Team (March, 2011)
Gov Exhibit – UPX0012 – Search Ads Overview (December 2020)
(Updates with additional detail on argument beginning in 16th paragraph.)
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