TRIAL UPDATE #1: Inside the Final Pretrial of U.S. vs. Google

September 6, 2023

The final pretrial conference in United States v. Google took place before Judge Mehta in Washington, D.C. on Friday, September 1. Pretrial conferences are largely procedural, with judges fulfilling their roles as umpires. Challenges to trial subpoenas were resolved, confidentiality issues were narrowed, outstanding legal issues were kicked down the road, and housekeeping matters related to how the trial would be run were clarified.

Consistent with our own advocacy, Judge Mehta emphasized that “live testimony is important” and the need to close the courtroom should be “minimized.” He denied motions to quash the trial subpoenas of numerous witnesses, including Apple executive Eddie Cue, which means they’ll have to fly to DC and testify in person. He also scoffed at Google’s attempt to keep 15-year-old documents under seal, under the guise that they would somehow give competitors an edge in contract negotiations. Judge Mehta was clear on this point: Only “highly sensitive information” would be kept under seal, and that is a rare category reserved for things like trade secrets.

Google’s efforts to shield the trial from public view didn’t stop there. Prior to Friday’s conference, AELP, along with allies Demand Progress, Open Markets Institute, and the Revolving Door Project formally intervened in the trial to ask the Court to provide a live remote audio feed – and Google opposed it. Google’s search monopoly impacts the way hundreds of millions of Americans interact with the internet on a daily basis, but, absent a remote audio feed, the only people who will be able to follow the trial are the elite few able to attend the proceedings in person. Google is seizing the opportunity, spending heavy to assemble a DC-based “war room” and pack the Court.

AELP Senior Counsel Katie Van Dyck addressed the Court on the need for a live remote audio feed, and – despite Google’s opposition to expanded public access – moved Judge Mehta from a firm “no” to saying he “has to talk to some people.” We understand why a monopolist like Google would rather monopolize access to the courtroom, but the right to attend trials is firmly rooted in the First Amendment and well honored by the Supreme Court. Public access enhances transparency, allows for more diverse perspectives to engage in the trial discourse, and instills more confidence in the judiciary. We hope Judge Mehta honors these values.

Judge Mehta also ruled on some motions in limine. A motion in limine is a request by a party to rule on the admissibility of evidence before trial starts. This makes it easier for lawyers to prepare lines of questioning and creates a smoother trial with fewer interruptions. But they can also shape the contours of the trial and provide insights into key points of contention. Google lost on a motion to exclude evidence of "anti-fragmentation,” or “anti-forking,” agreements that they use to block device manufacturers from including non-Google software. For its part, the Department of Justice teed up key legal issues for Judge Mehta to think about as he hears witness testimony. More on those issues in a later post, but the DOJ is thinking ahead to its endgame.

Finally: Sanctions. You may recall that Google already got in major trouble with a federal judge in California for illegally deleting Google Chat messages sent by its employees. That’s an issue here too. The DOJ filed a motion for sanctions earlier this year requesting a spoliation order, but Judge Mehta decided not to rule on it until he hears all the trial testimony. He’ll be considering whether Google’s conduct was intentional and how it harmed the DOJ’s ability to prove its case. That last question seems a bit silly, as its hard to prove without knowing what the messages said. But that is the point of a spoliation order, which allows Judge Mehta to infer whatever was in the Google Chats would have been evidence of Google’s culpability and/or anti-competitive intent. With one judge already finding Google at fault, it will be very interesting to see if Judge Mehta follows suit.

That’s all for now. We’ll let you know if any significant rulings pop up between now and the start of trial. In any event, opening statements begin on Tuesday morning at 9:30. We’ll be there, watching and learning and rooting for justice.