Rumble, Inc. v. Google LLC et al

Filing 120

ORDER RE: SECOND 112 JOINT DISCOVERY LETTER BRIEF REGARDING DOJ CASE DISCOVERY DISPUTE by Judge Lisa J. Cisneros (bns, COURT STAFF) (Filed on 7/3/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RUMBLE, INC., 7 Plaintiff, 8 v. 9 GOOGLE LLC, 10 Defendant. 11 United States District Court Northern District of California Case No. 21-cv-00229-HSG (LJC) ORDER RE: SECOND JOINT DISCOVERY LETTER BRIEF REGARDING DOJ CASE DISCOVERY DISPUTE Re: ECF No. 112 12 Pending before the Court is the parties’ Second Joint Discovery Letter Brief Regarding 13 14 DOJ Case Discovery Dispute. ECF No. 112. In this letter, Plaintiff Rumble Inc. seeks to compel 15 Defendant Google LLC to produce documents from the case, United States of America, et. al., v. 16 Google LLC, Case No. 1:20-cv-03010-APM (D.D.C) (hereinafter, the DOJ Case). The Court held 17 a hearing on the dispute on June 27, 2024. Having considered the parties’ briefing and oral 18 argument, the Court GRANTS IN PART and DENIES IN PART Rumble’s request. 19 I. 20 BACKGROUND This dispute originated with a Joint Discovery Letter Brief (ECF No. 108) filed on May 24, 21 2024, in which Rumble requested a court order compelling Google to produce the following from 22 the DOJ Case: 23 24 25 26 Request for Production No. 121: All Transcripts of the proceedings (including fact and expert witness testimony, oral argument by counsel, opening statements and closing arguments), in the trial in the case entitled “United States of America, et. al., v. Google LLC, Case No. 1:20-cv-03010-APM.”. 27 Request for Production No. 122: All Exhibits admitted into evidence by any party during the trial in the case entitled “United States of America, et. al., v. Google LLC, Case No. 1:20-cv-03010- APM.” 28 Request for Production No. 123: All demonstratives, for example, Power Point Presentations, used by Counsel for any party during the trial, including opening statements, fact and expert witness examination (direct and cross), and closing arguments, in the case entitled “United States of America, et. al., v. Google LLC, Case No. 1:20-cv-03010-APM.” 1 2 3 5 Request for Production No. 124: All Expert Reports (opening, rebuttal and reply) produced by any party during the trial in the case entitled “United States of America, et. al., v. Google LLC, Case No. 1:20-cv-03010-APM.” 6 Id. at 3. The Court found that Rumble’s requests were overbroad, and denied its request to compel 7 production, but allowed it to make a new request for a narrower set of trial transcripts, 8 demonstratives, and/or expert reports. ECF No. 109. The Court ordered the parties to meet and 9 confer regarding any new requests made by Rumble pursuant to the order. Id. Rumble’s new 4 10 requests consist of the following two categories of documents. United States District Court Northern District of California 11 (1) The deposition and trial transcripts and associated exhibits of those Google fact and expert witnesses who testified in the DOJ case and who can be expected to testify in the Rumble case, such as Dr. Nayak and Dr. Murphy. Rumble also requests the deposition and trial transcripts and associated exhibits of any witnesses Google in the future discloses as an expert in this case and who also testified in the DOJ case and asks that they be submitted no later than the time of the expert’s report. 12 13 14 15 (2) Testimony, exhibits and any other material relating to the Android default placement agreements and the effect of those agreements, including any fact and expert witness deposition and trial transcripts and/or demonstratives relating to Google’s negotiation of and internal planning concerning those agreements and the effect of those agreements and their default requirements on users, as well as portions of post-trial submissions relating to those matters and citing or describing that evidence. 16 17 18 19 20 21 II. LEGAL STANDARD Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 22 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 23 proportional to the needs of the case, considering the importance of the issues at stake in the 24 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 25 resources, the importance of the discovery in resolving the issues, and whether the burden or 26 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 27 26(b)(2) requires the Court to limit discovery that is unreasonably cumulative or duplicative, that 28 the party seeking discovery has had ample opportunity to obtain, or that is outside the scope of 2 United States District Court Northern District of California 1 permissible discovery described in Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2). A party may serve 2 requests for documents on any other party so long as the request is within the scope of permissible 3 discovery as defined in Rule 26(b)(1). Fed. R. Civ. P. 34(a). The requests “must describe with 4 reasonable particularity each item or category of items” to be produced. Fed. R. Civ. P. 5 34(b)(1)(A). 6 “The party seeking discovery has the initial burden of establishing that its request satisfies 7 Rule 26(b)(1)’s relevancy requirement.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. 8 Progress, No. 16CV00236WHODMR, 2019 WL 311622, at *3 (N.D. Cal. Jan. 24, 2019). “The 9 test for relevance is not overly exacting: evidence is relevant if it has ‘any tendency to make . . . 10 more or less probable . . . [a] fact [that] is of consequence in determining the action.’” In re 11 Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liabl. Litig., 2017 WL 4680242, at 12 *1 (N.D. Ca. Oct 18, 2017) (quoting Fed. R. Evid. 401). On the other hand, the party opposing 13 discovery “has the burden of showing that discovery should not be allowed, and also has the 14 burden of clarifying, explaining and supporting [his] objections with competent evidence.” Sayta 15 v. Martin, No. 16-CV-03775-LB, 2019 WL 666722, at *1 (N.D. Cal. Feb. 19, 2019) (quoting La. 16 Pac. Corp. v. Money Mkt. 1 Inst. Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012)). 17 III. ANALYSIS 18 A. Category (1) 19 As to Rumble’s Category (1) request, in which Rumble seeks the deposition and trial 20 transcripts and associated exhibits and demonstratives of those Google fact and expert witnesses 21 who testified in the DOJ Case and who can be expected to testify in the Rumble case, such as Dr. 22 Nayak and Dr. Murphy, Google has agreed to produce certain materials. Google has agreed to 23 produce unredacted trial transcripts for the testimony of Dr. Pandu Nanak, Dr. Kevin Murphy, Jim 24 Kolotouros, and Adrienne McCallister, four witnesses that testified in the DOJ Case and who are 25 also on Google’s initial disclosures or have been disclosed by Google as an expert in this case. 26 ECF No. 112 (Second Joint Discovery Letter Brief) at 6. Therefore, Rumble’s request as to these 27 materials is DENIED AS MOOT. Rumble’s request for Google to produce trial transcripts and 28 associated exhibits and demonstratives of any witnesses whom Google in the future discloses as 3 1 an expert in this case and who also testified in the DOJ Case is DENIED without prejudice. Id. at 2 4. Google does not indicate that there are any such witnesses, but the Court notes that the deadline 3 for the parties to exchange their expert rebuttal reports is August 2, 2024. Whether Google must 4 produce such materials will depend on the relevance of any new expert’s testimony, exhibits, and 5 demonstratives to Rumble’s claim, and whether production is proportional to the needs of the 6 case, pursuant to Rule 26(b)(1). If Google does seek to bring in a new expert prior to the close of 7 expert discovery, Rumble may file a new discovery letter, after meeting and conferring with 8 Google, as to its request for that expert’s materials from the DOJ Case. The discovery letter must 9 be filed no later than fourteen days after the disclosure of the new expert. United States District Court Northern District of California 10 As part of its Category (1) request, Rumble also seeks deposition transcripts for these 11 expert witnesses. The request for deposition transcripts was not part of Rumble’s original RFP 12 Nos. 121–124, which focused on the trial in the DOJ Case. Therefore, Rumble’s new broad-based 13 request for deposition testimony from the expert witnesses is untimely. The Court, however, 14 recognizes that the parties in the DOJ Case may have designated deposition testimony as evidence 15 in the trial. The Court GRANTS IN PART Rumble’s request for deposition testimony and the 16 associated exhibits insofar as such material was designated at trial, and thus, part of the trial 17 transcript, otherwise, Rumble’s request for the deposition testimony of all expert witnesses is 18 DENIED. 19 In the Second Joint Discovery Letter Brief, Google clarifies that for Category (1), it will 20 produce unredacted trial exhibits and demonstratives used during the trial examinations of the 21 expert witnesses to the extent these materials are documents originally produced by Google, but it 22 will produce such materials with redactions if they were produced by third parties. Id. at 6. 23 Google reasons that third-party confidential information is subject to the protective order in the 24 DOJ case. Id. Rumble indicated in the letter that it “does not ask that Google produce 25 confidential technological or similarly confidential information of third-parties sealed by the Court 26 in the DOJ case.” Id. at 4. At the hearing, Rumble clarified that it is comfortable with Google 27 redacting any third-party confidential information only if the third party asked for that material to 28 be sealed in the DOJ Case. Google also indicated that it does not believe the protective order in 4 1 the DOJ Case prohibits this Court from ordering Google to disclose third-party confidential 2 information but noted that some sort of notice process to the third parties may be appropriate if 3 their confidential information that was part of the DOJ Case must be disclosed here. 4 5 trial, and the redaction of such materials is only permitted where the third party asked for that 6 information to be sealed in the DOJ Case. For any materials where the third party did not request 7 that their information be sealed in the DOJ Case, then Google must follow the procedures set forth 8 in the Stipulated Protective Order in this case as to production of a non-party’s confidential 9 information. ECF No. 76 at 16–17. 10 United States District Court Northern District of California Google shall produce exhibits and demonstratives used with expert testimony provided at Accordingly, Rumble’s request to compel production of certain deposition and trial 11 transcripts and associated exhibits as set forth in Category (1) is GRANTED IN PART and 12 DENIED IN PART. 13 14 15 B. Category (2) 1. Material Cited in the DOJ’s Proposed Findings of Fact Turning to Category (2), Rumble has further specified the materials it seeks. Rumble 16 requests materials cited in the U.S. Department of Justice’s (DOJ) post-trial Proposed Findings of 17 Fact from the DOJ Case, specifically Paragraphs 779 through 964, and Paragraphs 1089, 1312, 18 1319, 1324, and 1326. ECF No. 112 at 4, 14–70; see also U.S. v. Google, LLC, Case No. 1:20-cv- 19 03010-APM, ECF No. 839 (DOJ’s Proposed Findings of Fact) ¶¶ 779–964, 1089, 1312, 1319, 20 1324, 1326 (D.D.C. Feb. 9, 2024). According to Rumble, this material concerns “the Android 21 default placement agreements and Google’s conduct in relation to those agreements, including 22 Google’s coercion of certain Android phone manufacturers and service providers, statistical and 23 other information on installation rates and other measures of how Google’s conduct [sic] on 24 consumers and competition.” ECF No. 112 at 4. As to relevancy, Rumble broadly argues that 25 these paragraphs cite key evidence concerning Google’s conduct and its effect on competitors and 26 competition, bearing on Rumble’s allegations. Google disputes the relevancy and proportionality 27 of these requests. 28 5 a. 1 The Court considers first the law that applies to Rumble’s antitrust claim. Rumble pleads a 2 United States District Court Northern District of California Applicable Antitrust Law and the DOJ Case 3 single cause of action under Section 2 of the Sherman Act, which makes it unlawful for a person 4 to “monopolize, or attempt to monopolize, or combine or conspire with any person or persons[] to 5 monopolize any part of the trade or commerce among the several states.” 15 U.S.C § 2. “The 6 offense of monopolization has two elements: (1) ‘the possession of monopoly power in the 7 relevant market’ and (2) the ‘willful acquisition or maintenance of that power’ through 8 ‘exclusionary conduct as distinguished from growth or development as a consequence of a 9 superior product, business acumen, or historic accident.’” United States v. Google LLC, 687 F. 10 Supp. 3d 48, 65 (D.D.C. 2023) (quoting United States v. Microsoft Corp., 253 F.3d 34, 50, 58 11 (D.C. Cir. 2001)). “The sole issue for the court to resolve is whether Google as maintained 12 monopoly power in the relevant markets through ‘exclusionary conduct’ as opposed to 13 procompetitive means.” Id. A burden-shifting framework applies to determine “[w]hether any particular act of a 14 15 monopolist is exclusionary, rather than merely a form of vigorous competition.” Id. First, the 16 plaintiff bears the burden of establishing a prima facie case that the monopolist’s conduct has an 17 “anticompetitive effect,” harming the competitive process, and thereby consumers. Id. If the 18 plaintiff satisfies this prong, then the alleged monopolist may offer a “procompetitive 19 justification” for its conduct. Id. If the plaintiff does not rebut the procompetitive justification, 20 the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the 21 procompetitive benefit. Id. Next, the Court reviews what occurred in the DOJ Case. Relevant to this case, Google in 22 23 the DOJ Case moved for summary judgment on the DOJ’s and the Colorado Plaintiffs’1 Section 2 24 claim that Google unlawfully maintained its monopoly power through a set of exclusive contracts. 25 26 27 28 1 The Colorado Plaintiffs consist of the Attorneys General of thirty-eight states and territories, led by the State of Colorado. U.S. v. Google, LLC, 687 F. Supp. 3d at 55, n.4. The Colorado Plaintiffs filed a complaint separate from the DOJ, but eleven states also joined the DOJ’s complaint. Id. at 55, n.3. The two cases were eventually consolidated pursuant to Rule 42(a) for pretrial purposes, including discovery and related proceedings. Id. at 55. 6 1 Id. at 54. The Plaintiffs in the DOJ Case allege that these agreements make Google the default 2 search engine on a range of products in exchange for a share of the advertising revenue generated 3 by searches run on Google. Id. This Section 2 claim survived Google’s motion for summary 4 judgment based on evidence sufficient to create material disputes of fact as to (a) whether 5 Google’s conduct amounted to exclusionary dealing and (b) whether that conduct foreclosed a 6 substantial portion of the relevant market. Id. at 70–78. United States District Court Northern District of California 7 Judge Mehta’s decision in the DOJ Case first addressed whether Plaintiffs had presented 8 evidence of exclusive dealing, and in turn, he addressed the evidence of substantial foreclosure of 9 the relevant market because the “legality of an exclusive arrangement ultimately depends on 10 whether the agreement foreclosed a substantial share of the relevant market such that competition 11 was harmed.” Id. at 71. Having determined that courts must disaggregate the exclusionary 12 conduct into its “component parts,” Judge Mehta analyzed Google’s Browser Agreements and its 13 Android Agreements to determine whether they were exclusive contracts. Id. at 70–77. 14 Judge Mehta explained that the Android Agreements consist of two types of agreements 15 between Google and original equipment manufacturers (OEM) and carriers—Mobile Application 16 Distribution Agreements (MADAs) and Revenue Sharing Agreements (RSAs). Id. at 60. Under 17 the MADA, if an OEM chooses to download any of Google’s proprietary applications, absent an 18 exemption, it must “preload on that device [the eleven] applications licensed pursuant to the 19 MADA, and [] place on the device’s default home screen the Google Search widget, the Google 20 Play application, and a folder containing the other MADA applications.” Id. (citation omitted). 21 The eleven applications are Google Search, Google Play Store, Google Chrome, YouTube, 22 Google Maps, Gmail, Google Photos, YouTube Music, Google Duo, Google Drive, and Google 23 Play Movies and TV. Id. at 60, n. 8. The MADA prohibits OEMs from “encouraging, teaching, 24 or helping end users to change an Android device’s out-of-the-box default settings if Google apps 25 are preinstalled on the device.” Id. at 60 (citation omitted). 26 Under Google’s RSAs with OEMs and carriers, “Google makes monthly payments to the 27 counterparty in exchange for Google being (1) the exclusive general search engine preinstalled on 28 Android devices covered by the RSA, as well as (2) the search default for all search access points 7 United States District Court Northern District of California 1 on such devices.” Id. (citation omitted). The RSA includes a provision which prohibits an OEM 2 or carrier from “preinstalling or otherwise including a search engine substantially similar to 3 Google’s.” Id. at 60–61. “Except for a small number of Android devices ... the overwhelming 4 majority of Android devices sold in the United States are subject to the search default rules 5 established in Google’s RSAs.” Id. at 61 (citation omitted). In the DOJ Case, Google conceded 6 that the Android RSAs are exclusive contracts but disputed whether the Browser Agreements and 7 Android MADAs were exclusive. Id. at 70. The parties also disagreed regarding how to gauge 8 “substantial foreclosure” and the extent of it. Id. 9 Finally, another important aspect of the DOJ Case is the use of “defaults,” an issue which 10 Google argues is irrelevant to Rumble’s case. In the DOJ Case, the DOJ defined a default as “an 11 option pre-selected for a consumer by a third-party, such as a smartphone manufacturer, that 12 requires an affirmative action by a consumer to change.” U.S. v. Google LLC, ECF No. 839 ¶ 868. 13 Defaults have a powerful impact on consumer decisions across a range of domains, which is why 14 Google has long embraced “the power of defaults” in its own businesses. Id. ¶¶ 869–70. In a 15 2007 study conducted by Google which considered the factors that might influence a user’s choice 16 of search engines—such as results quality, search features, user experience, and brand strength— 17 Google found that the most important factor was the default home page setting. Id. ¶ 878. Google 18 showed that “users who have their home page set to Google do 50% more searches on Google 19 compared to those who don’t.” Id. (citation omitted). It is because of how “valuable” defaults can 20 be that Google “pays tens of billions of dollars every year” to be the default search engine across 21 search access points in the United States. Id. ¶ 933 (citation omitted). 22 23 b. The Present Case In this lawsuit, Rumble has placed at issue the same Android Agreements that are central 24 to the DOJ Case. ECF No. 112 at 3; see also ECF No. 21 (First Amended Complaint, or FAC) 25 ¶¶ 27, 34, 39. Rumble’s monopolization claim is based on Google’s YouTube product, and it 26 defines the relevant market as the “online video platform market,” where these platforms “allow 27 content creators and other consumers to upload, view, share and download video content.” FAC 28 ¶ 55. Rumble alleges that Google has deployed an anticompetitive, exclusionary strategy in which 8 United States District Court Northern District of California 1 “by pre-installation of the YouTube app (which deters smart phone manufacturers from pre- 2 installing any competitive video platform apps) as the default online video on Google smart 3 phones, and by entering into anti-competitive, illegal tying agreements with other smartphone 4 manufacturers to do the same (in addition to requiring them to give the YouTube app a prime 5 location on their phones’ opening page and making it not-deletable by the user), Google assures 6 the dominance of YouTube and forecloses competition in the video platform market.” Id. ¶ 27. 7 Google contends that Rumble may not discover the materials it requests from the trial in 8 the DOJ Case because, simply stated, that trial largely concerned Google Search, rather than 9 YouTube. ECF No. 112 at 6. Google argues that none of the trial materials are relevant and 10 specifically challenges the relevancy of the materials cited in various paragraphs of the DOJ’s 11 Proposed Findings of Fact. Id. at 7–9. Google, however, concedes that “some of these paragraphs 12 [addressing the MADAs and RSAs] relate to the same contracts Rumble challenges here.” Id. at 13 8, n.4.2 14 The materials cited by the DOJ in its post-trial Proposed Findings of Fact are not 15 necessarily irrelevant because the DOJ Case focused on the market for general search, whereas 16 this case focuses on YouTube and the market for online video platforms. The DOJ’s evidence 17 shows that Google used these agreements for more than just Google Search and required OEMs to 18 preinstall several Google apps, including YouTube. See U.S. v. Google LLC, ECF No. 839 ¶ 246. 19 As described above, the DOJ marshalled evidence that defined a “default” as a broad concept, 20 describing it as “an option pre-selected for a consumer by a third-party, such as a smartphone 21 manufacturer, that requires an affirmative action by a consumer to change.” Id. ¶ 868. When adjudicating Section 2 monopolization claims, courts must consider whether 22 23 agreements are exclusive in their nature, and if they are, the extent to which foreclosure has 24 25 26 27 28 2 As noted earlier, the same agreements at issue in the DOJ Case are also important to the allegations in this case. Rumble’s operative complaint expressly points to Google’s use of “preinstallation agreements—MADAs” to ensure that its entire suite of applications receives “premium placement” on Android devices, and it also refers to Google’s “revenue sharing agreements.” FAC ¶¶ 118–20, 133. In addition, Rumble responded to Google’s contention interrogatories, asserting that the RSAs require exclusivity “that precludes OEMs and carriers from implementing, preloading or postloading any third party ‘Alternative Service,’” and it names several other agreements that it believes harmed competition. ECF No. 113-1 at 14, 19. 9 1 occurred. U.S. v. Google LLC, 687 F. Supp. 3d at 71. Relevant to the issue of exclusionary 2 conduct, the Section 2 claim in the DOJ Case alleges that Google deployed exclusionary 3 agreements to establish Google Search as the default search engine on a range of products, and 4 here, Rumble asserts that Google used the same strategy. Rumble claims that Google leveraged 5 MADAs and RSAs to establish YouTube as a preinstalled, non-deleteable application placed in a 6 prime location on mobile phones. According to Rumble, these agreements had the purpose and 7 effect of establishing YouTube as a pre-selected online video platform, undermining the 8 competitive process. Therefore, evidence in the DOJ Case that concerns Google’s exclusionary 9 conduct is relevant to Rumble’s Section 2 claim centered on the creation of default apps and 10 United States District Court Northern District of California 11 services within the mobile phone environment. At the same time, the Court does not overlook the distinctions between the two cases. 12 Different markets are at issue. This arguably bears on the requirement that, if Rumble 13 demonstrates that the Android Agreements amount to exclusive dealing, it must also establish 14 substantial foreclosure of the relevant market. Evidence from the DOJ Case regarding the extent 15 to which the market for general search services was foreclosed does not necessarily amount to 16 evidence of the rate of foreclosure of the online video platform market. Rumble’s arguments as to 17 relevance paint in too broad a brushstroke to establish that this type of evidence from the DOJ 18 Case is also relevant to this case. As it is, the MADA and RSA provisions that apply to and effect 19 the distribution of YouTube and its competitors operate in a similar and overlapping, but not 20 identical, manner as the provisions that establish Google Search as the default search engine at 21 various search access points on mobile phones. 22 Having examined the parties’ arguments regarding relevance, the Court turns to the issue 23 of proportionality and burden. Google argues that Rumble has failed to explain how the burden on 24 Google to review and produce the materials requested as part of Category (2) is proportional to the 25 needs of the case. ECF No. 112 at 6–7. According to Google, the materials that Rumble seeks 26 reflect the testimony of thirty-six different witnesses, nineteen of which are employed by third 27 parties such as Apple, Microsoft, Mozilla, etc. Id. Ten of the witnesses did not testify live at the 28 trial, and instead, the parties submitted to the court their deposition transcripts. Id. In addition, 10 1 Category (2) involves 147 trial exhibits and five trial demonstratives. Id. Google points out that 2 most of these materials are publicly available in redacted form (the ten deposition transcripts are 3 not publicly available). Id. Google argues that Rumble fails to explain how the public versions 4 are insufficient, or why it specifically needs to review the redacted material. Id. United States District Court Northern District of California 5 Because much of the information is already publicly available and centrally located, the 6 collection of the materials poses less of a burden. Instead, Google has emphasized that there is a 7 burden in reviewing the information for confidentiality concerns. Google’s and third parties’ 8 confidential information is part of the trial record in the DOJ Case, and thus, redactions appear 9 throughout the record. The burden of reviewing the trial record has been reduced, as Rumble has 10 narrowed its request in its Second Joint Discovery Letter. Furthermore, as explained below, the 11 Court has scrutinized each segment of evidence that Rumble has requested and found only certain 12 information is discoverable. 13 Google’s arguments as to third-party confidential information are thus insufficient to 14 demonstrate undue burden. As the Court explained above, Google may redact any materials 15 where the third party asked for that information to be sealed in the DOJ Case. For any materials 16 where the third party did not request that their information be sealed in the DOJ Case, then Google 17 must follow the procedures set forth in the Stipulated Protective Order in this case as to production 18 of a non-party’s confidential information. ECF No. 76 at 16–17. 19 At the hearing, Google argued that it already made relevant information available to 20 Rumble by allowing Rumble to search, pursuant to this Court’s order, the electronically stored 21 information (ESI) that Google produced to the DOJ and the Colorado Plaintiffs as part of 22 discovery conducted in the DOJ Case. In Google’s view, the Court should not also require it to 23 review and produce the DOJ trial record evidence that is relevant to this case. The Court 24 disagrees. There is no sound reason to assume that the parties’ search terms have turned over 25 every piece of relevant information from the DOJ Case. Furthermore, certain demonstratives and 26 expert testimony were likely created after discovery was completed, and those materials would not 27 have been included in the body of ESI that was searched. 28 Considering the applicable law and nature of the conduct and agreements at issue in both 11 1 cases, as well as factors under Rule 26(b), the Court shall now consider whether Rumble is 2 entitled to the materials it seeks from the DOJ’s Proposed Findings of Fact. 3 Paragraphs 779 through 821 4 Rumble has sufficiently demonstrated the relevance of materials cited in Paragraphs 779 5 through 821 of the DOJ’s Proposed Findings of Fact. These paragraphs cover three subsections 6 entitled “MADAs Contribute to Exclusivity,” “RSAs Contribute to Exclusivity,” and “MADAs 7 And RSAs Are a Belt-And-Suspenders Strategy to Exclude Rivals from Accessing Search 8 Distribution.” See U.S. v. Google, LLC, ECF No. 839 ¶¶ 779–821. Accordingly, Rumble’s 9 request as to materials cited in Paragraphs 779 through 821 is GRANTED. 10 11 United States District Court Northern District of California c. d. Paragraphs 822 through 831 Paragraphs 822 through 831 concern Google negotiations with Verizon as to their 2021 12 RSA. For as long as Verizon owned Yahoo, Verizon wanted to preinstall the Yahoo Mobile 13 Application with web search functionality on its Android devices, place it on the plus one screen 14 or device application tray (not the home screen), and make sure the application “didn’t allow a 15 punch-out into general search.” Id. ¶ 825. The circumstances surrounding Verizon’s efforts to 16 optimize the Yahoo Mobile Application on Android devices illustrate the high priority that Google 17 placed on keeping its search tool on the default home screen for Android phones. This evidence 18 bears on the effect of default placement on competition, and therefore it is relevant. Rumble’s 19 request as to Paragraphs 822 through 831 is GRANTED. 20 21 e. Paragraphs 832 through 862 Paragraphs 832 through 862 concern Branch Metrics and its efforts to distribute its app- 22 search tool on every major Android OEM and U.S. carrier, including Samsung. Rumble has 23 alleged here that Google’s Android Agreements require an OEM to preinstall, and in some cases, 24 give premium placement to, an entire suite of Google apps, including YouTube, and this deters 25 OEMs from installing competitor application programs. See FAC ¶¶ 27, 135. Branch Metrics 26 created an application that competes with Google Search. Rumble does not compete for search 27 services, but it is an online video platform that competes with YouTube. Evidence that the 28 Android Agreements thwart a competitor application’s partnership with OEMs and carriers tends 12 1 to show that Google’s agreements may undermine the distribution of a competitor’s application 2 program. This issue is central to Rumble’s claim. Its request as to Paragraphs 832 to 862 is 3 GRANTED. 4 United States District Court Northern District of California 5 f. Paragraphs 863 through 866 Paragraphs 863 through 866 are all under Section IV.C of the DOJ’s Proposed Findings of 6 Fact, which is entitled “Google’s Brower Contracts are Exclusive.” This subsection concerns 7 Google’s RSAs with third-party browsers like Firefox and Opera to make Google Search the 8 default search engine for certain browsers. U.S. v. Google, LLC, ECF No. 839 ¶¶ 863–65. Google 9 argues that its agreements with browser developers are not relevant to Rumble’s claim, especially 10 given Rumble’s focus on “Android default placement agreements.” ECF No. 112 at 7–8. Rumble 11 does not discuss browser agreements in the Second Joint Discovery Letter Brief or dispute that its 12 case focuses on the Android Agreements. It makes no showing as to the importance of the 13 evidence from this subsection. Accordingly, and considering the burdens asserted by Google, 14 Rumble’s request is DENIED as to Paragraphs 863 to 866. 15 16 g. Paragraphs 867 through 943 Paragraphs 867 through 943 encompass subsections entitled, “Defaults Have a Powerful 17 Effect on Users’ Search Behavior, Particularly on Mobile Devices,” “Search Engine Defaults Are 18 the Most Efficient Method of Distribution,” “Behavioral Economics Explains the Power of 19 Defaults,” and “Market Evidence Confirms Effects in Search.” Having reviewed these 20 subsections, the Court finds that the materials cited therein address examples of defaults and 21 reasons that explain the preeminence of default distribution, including choice friction, and user 22 confusion and awareness. This information is relevant to Rumble’s claim that the agreements at 23 issue have given YouTube a default status which harms competition in the relevant market. Thus, 24 Rumble’s request as to Paragraphs 867 through 943 is GRANTED. 25 h. Paragraphs 944 through 964 26 This series of paragraphs concerns evidence that, in the DOJ’s view, establishes substantial 27 foreclosure of the relevant market. The evidence, however, relates to an analysis of foreclosure in 28 the general search market. The DOJ asserts that expert evidence shows that exclusive defaults 13 1 secured by Google’s exclusionary contracts cover fifty percent of all general search queries 2 performed in the United States. U.S. v. Google, LLC, ECF No. 839 ¶ 954. Rumble has not 3 explained how this evidence bears on foreclosure of the online video platform market. Rumble’s 4 request as to Paragraphs 944 to 964 is DENIED. i. United States District Court Northern District of California 5 Paragraph 1089 6 Paragraph 1089 deals with, as Rumble puts it, “Google’s internal worries regarding the 7 decline in search volume as a result of limitations on preinstallation on Android devices in the 8 EU.” ECF No. 112 at 5. It cites to materials concerning Google’s “Go Big in Europe” 9 investments, which focused on driving daily active search users in certain European countries. 10 U.S. v. Google, LLC, ECF No. 839 ¶ 1089. As a result of a 2018 ruling from the European 11 Commission, Google was required to implement a choice screen. This choice screen allowed 12 mobile phone users to select their default web browser and search application during initial device 13 setup. Though this evidence is from outside of the U.S. market, it illustrates Google’s investments 14 to improve search for European consumers in the face of possible increased competition. This 15 evidence illustrates consumer and company behavior, which as a pattern, is not limited to Europe. 16 The evidence is relevant to show the harm to consumers if the competitive process is undermined 17 by a strategy based on default applications. Rumble’s request as to Paragraph 1089 is therefore 18 GRANTED. 19 20 j. Paragraph 1312 Paragraph 1312 deals with “the revenue generated by Google apps that come preinstalled 21 on Android devices, including YouTube.” ECF No. 112 at 5. It provides that “Google uses the 22 Android platform to distribute flagship, non-search applications that generate substantial revenue 23 for the company, including YouTube, Google Maps, Gmail, and Google Drive.” U.S. v. Google, 24 LLC, ECF No. 839 ¶ 1312. The DOJ then cites to materials as to revenue generated for each of 25 these Google applications. Id. This evidence is relevant to show Google’s interests in the mass 26 distribution of its products other than search engine services, namely YouTube. Given that 27 Rumble’s request relates directly to YouTube and its motives concerning YouTube, its request as 28 to Paragraph 1312 is therefore GRANTED. 14 k. 1 United States District Court Northern District of California 2 Paragraph 1319 Paragraph 1319 is part of Section X.C.1.b of the DOJ’s Proposed Findings of Fact, entitled 3 “Google’s Purported Interest in Promoting Android’s Competitiveness is Undermined by its ISA 4 Payments to Apple.” Paragraph 1319 discusses a different arrangement than the MADAs or 5 RSAs. The ISA is an Information Services Agreement, which is an agreement Google reached 6 with Apple as to advertising revenue from searches conducted on Apple devices. Id. ¶ 210. 7 According to Rumble, Paragraph 1319 shows that “Google is unconcerned with Apple 8 strengthening as an Android rival.” ECF No. 112 at 5. Rumble does not discuss the ISA in the 9 Second Joint Discovery Letter Brief or dispute that its case focuses on the Android Agreements. It 10 makes no showing as to the importance of the evidence from this subsection. Accordingly, and 11 considering the burdens asserted by Google, Rumble’s request as to Paragraph 1319 is therefore 12 DENIED. 13 14 l. Paragraph 1324 Rumble contends that Paragraph 1324 is evidence of “the percentage of users that would 15 delete the Google widget on Android devices within 3 months of device activation if it were 16 removable.” ECF No. 112 at 5. It deals specifically with consumer complaints as to the 17 placement of the Google Search widget across the home screen of Android smartphones. The 18 evidence addresses a Google widget that users, apparently, are unable to delete, similar to the 19 YouTube application in this case. The evidence is relevant to show that blocking users’ ability to 20 remove an application does not enhance the consumer experience; it may tend to show that the 21 practice does not improve the product’s desirability. After a plaintiff has made a prima facie 22 showing that conduct is exclusionary, a defendant may defeat the antitrust claim by demonstrating 23 that the conduct has a procompetitive benefit. U.S. v. Google LLC, 687 F. Supp. 3d at 65. Because 24 the evidence concerns the Google Search widget, the estimated percentage of users who would 25 delete that widget will not necessarily mirror the deletion rate for YouTube. They are different 26 products and may have a different level of desirability. However, the evidence still bears on the 27 absence of a procompetitive benefit with respect to a feature barring an application’s removability. 28 Rumble’s request as to Paragraph 1324 is therefore GRANTED. 15 m. United States District Court Northern District of California 1 Paragraph 1326 2 Finally, according to Rumble, Paragraph 1326 contains evidence showing that “Google’s 3 OEM and carrier partners discuss[ed] how they would prefer different placement of Google apps 4 on their devices.” ECF No. 112 at 5. It concerns Android device manufacturers and carriers, 5 specifically, their ability to control “the user experience on their devices.” U.S. v. Google, ECF 6 No. 839 ¶ 1326. For reasons similar to Paragraph 1324, the evidence cited in Paragraph 1326 7 relates to whether there is a procompetitive benefit to pre-selecting the placement of Google apps. 8 The evidence indicates that if flexibility were permitted, manufacturers and carriers could exercise 9 control to enhance the user experience through differentiation. Rumble’s request as to Paragraph 10 1326 is therefore GRANTED. 11 2. Expert Michael Whinston 12 Rumble separately seeks trial transcripts and associated exhibits and demonstratives from 13 the DOJ’s expert witness, Michael Whinston. Rumble argues that his testimony is relevant to the 14 same topics that the DOJ’s Proposed Findings of Fact concern, namely the intent, scope, and 15 effect of the Android Agreements. ECF No. 112 at 5. Rumble does not dispute that the trial 16 transcripts reflecting Whinston’s testimony is available publicly in fully unredacted form. It 17 appears, however, that at least certain of the exhibits and trial demonstratives connected with his 18 testimony are redacted. 19 In response, Google argues that production is burdensome. Google points out that 20 Whinston testified for multiple days, and the first two days of his testimony related solely to the 21 alleged relevant markets at issue in the DOJ Case, which are different from the proposed market 22 definitions in this case. Id. at 9. Furthermore, Google contends that Rumble has not shown that 23 the burden associated with reviewing and producing the exhibits and trial demonstratives, an 24 unspecified number of which are redacted, is proportionate to the needs of the case. Id. Indeed, 25 Rumble’s argument regarding the materials it seeks is limited to two slides from the expert’s trial 26 demonstratives. Id. at 77–78. 27 The Court finds that Rumble has not demonstrated relevancy and proportionality sufficient 28 to justify ordering Google to review and produce all the exhibits and trial demonstratives that were 16 1 introduced over the course of Whinston’s multiple days of testimony. Rumble has made no 2 showing to assist the Court in understanding the scope of its request or how important the 3 requested materials are to its case. Rumble’s request for relief is GRANTED solely as to the trial 4 demonstratives it has specifically argued in the Second Joint Discovery Letter. Google shall 5 produce the attached demonstratives with redactions removed from its confidential information. 6 IV. United States District Court Northern District of California 7 CONCLUSION For the reasons explained above, Rumble’s request to compel production as to materials 8 from the DOJ Case is GRANTED IN PART and DENIED IN PART. For Category (1), Google 9 shall produce unredacted trial transcripts for the testimony of Dr. Pandu Nanak, Dr. Kevin 10 Murphy, Jim Kolotouros, and Adrienne McCallister, four witnesses that testified in the DOJ Case 11 and who are also on Google’s initial disclosures or have been disclosed by Google as an expert in 12 this case. This includes any deposition testimony and the associated exhibits insofar as such 13 material was designated at trial, and thus, part of the trial transcript. However, Rumble’s request 14 for trial materials for any expert witnesses Google in the future discloses as an expert in this case 15 and who also testified in the DOJ Case is DENIED without prejudice as to Rumble’s ability to 16 seek these materials through a new discovery letter, after meeting and conferring with Google. 17 For all the materials Google produces, it may only redact third party confidential information 18 where the third party asked for that information to be sealed in the DOJ Case. 19 For Category (2), Google shall produce materials cited in Paragraphs 779–821, 822–31, 20 832–62, 867–943, 1089, 1312, 1324 and 1326 of the DOJ’s Proposed Findings of Fact. As with 21 Category (1), Google may only redact third party confidential information where the third party 22 asked for that information to be sealed in the DOJ Case. Google shall also produce unredacted all 23 Whinston trial demonstratives attached to the Second Joint Discovery Letter Brief. 24 25 IT IS SO ORDERED. Dated: July 3, 2024 26 27 LISA J. CISNEROS United States Magistrate Judge 28 17

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