Google and systemic secrecy from Matt Stoller

Written by Michael E Dehn

Founder and CEO of Metro Pulse a continually running enterprise since May 1980.

September 25, 2023

Welcome to Big Tech on Trial. This free newsletter is brought to you by the BIG newsletter with daily coverage on the Google antitrust trial reported by Yosef Weitzman and additional commentary from Matt Stoller.

Secrecy Is Systemic
Here are seven ways that Judge Mehta is allowing Google to hide the Google antitrust trial.

 At least half of the testimony during the last week of the Google antitrust trial was sealed from the public including the entirety of testimony on Friday. This past week is far from the first time that Judge Amit Mehta has allowed Google to hide evidence and otherwise block public access to information. Here are seven examples of Judge Mehta’s behavior so far.DOJ caught Google hiding documents from the government by falsely claiming attorney-client privilege on ordinary business communications. Mehta ordered Google to produce a random sample of 1% of the roughly 21,000 documents in question for him to review Google’s claims of attorney-client privilege. When Google produced this sample of 210 documents, it de-privileged 26. Of the remaining documents Judge Mehta reviewed, he found that for about 23 percent of them “we couldn’t say definitively that these were privileged just because we may not have the full context, but, you know, given some understanding of it, it didn’t strike us as that Google is acting in bad faith in designating those records as privileged.”

Judge Mehta gave Google this benefit of the doubt after commenting that its practice of copying attorneys on normal business emails was “eye-brow raising”, but finding that he did not have the authority to sanction Google for its pre-litigation conduct.The DOJ moved for sanctions against Google again in February 2023 for using “history-off chats” that were automatically destroyed after 24 hours. Google employees, including CEO Sundar Pichai, continued to use history-off chats even after Google was placed on a litigation hold. Judge Mehta has not yet ruled on this motion for sanctions, but the issue is a part of the trial.

Under the Federal Rules of Civil Procedure, a judge may “presume that the lost information was unfavorable to the party” if the judge finds that the party “acted with the intent to deprive another party of the information’s use in the litigation.”During pretrial hearings, Judge Mehta stated that there is a presumption of public access to judicial records, but that various factors can be weighed against this presumption to allow for exceptions. He said it was impracticable for him to apply these factors to each individual exhibit in the case. Instead, he largely left it to the parties to try to work it out amongst themselves. Mehta actually said, “I am not anyone that understands the industry and the markets in the way that you do. And so I take seriously when companies are telling me that if this gets disclosed, it’s going to cause competitive harm. And I think it behooves me to be somewhat conservative in thinking about that issue, because, you know, I can’t see around every corner.”

To deal with redactions, Mehta instructed DOJ and the States to “present to Google your exhibits and identify what portions of the exhibits you’re going to use in your examination.” The government parties pointed out this would effectively be handing over the details of its trial strategy to Google on a “silver platter.” They asked for assurances that Google would not use the disclosures to assist in prepping witnesses. Judge Mehta acknowledged this concern and ordered that the disclosures “will be with the understanding that Google will not then turn around and use that document to prepare a witness. . . We’re all operating in good faith here.”The trial is only available to people who can go to the court in D.C. Citing judicial policy, Judge Mehta denied a third-party motion (by groups including AELP) to broadcast a publicly accessible audio feed of the trial — although a public access line was made available for the parties’ opening statements. Even if you can come to the courthouse, it’s hard to see the trial because huge portions are fully sealed. There is usually no clear indication beforehand of how long the trial will be sealed for.

And when the court ends a sealed session and re-opens to the public, it often resumes within a couple of minutes of opening the door to the courtroom. This means anyone who wants to watch the public portions of the trial just has to wait outside the courtroom to see when it re-opens.As of this week, there is no longer any way for the public to access the exhibits that are admitted in court — other than seeing them as they are presented live during trial. Judge Mehta didn’t formally order them to be taken down — and he said he wasn’t necessarily opposed to them being posted — but he said he wished DOJ had notified him beforehand so he could ensure proper guardrails were up in place. DOJ responded by saying it had already taken the exhibits down from its website, which caused Bloomberg reporter Leah Nylen to stand up from the gallery and lodge her own objection

(Stories: Google Emails, Memos Hidden from Web as DOJ Caves at TrialWhat will the public get to see?Here are the documents the Google antitrust trial judge didn’t want you to see).Judge Mehta acknowledged an admissible exhibit may be embarrassing to Google, but he found it did not contain confidential information. Nevertheless, Google was allowed to keep this exhibit out of open court. On Friday, he ruled that the closed-session testimony about the exhibit would be unsealed, but the public still does not know what is in this exhibit that Google clearly wants to keep out of the public eye.

Big Tech on Trial is a free newsletter brought to you by the BIG newsletter with daily coverage on the Google antitrust trial reported by Yosef Weitzman and additional commentary from Matt Stoller.Thanks for reading Big Tech on Trial! Subscribe for free to receive daily coverage of the Google antitrust trial and support the work of BIG.Subscribe

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