TRIAL UPDATE # 11: Cross Examination of Google Witnesses Leaves a Trail of Damning Internal Emails and Documents
November 09., 2023
Week 9 of the landmark U.S. v. Google trial concluded on Thursday with testimony and cross-examination of four Google witnesses including Google’s Senior VP Jennifer Fitzpatrick, Google’s VP for Product Management for Google Chrome Richard Holden, Google’s VP for Global Partnerships Adrienne McCallister, and Jamie Rosenberg, a former Android exec who still works as an advisor for Google. Google also played video deposition testimony of Dan Levy, a former VP of Ads at Meta and Jeffrey Ezell, VP of Strategy and Business Development at AT&T.
On Monday, the DOJ wrapped its lengthy cross-examination of Google’s economics expert Dr. Mark Israel who was on stand for the longest in this trial, a total of 12 hours over 3 days.
Then Google called its Senior VP Jennifer Fitzpatrick who said Google was “transparent” and prioritized privacy and security. Her cross-examination included evidence suggesting the opposite. She, like Israel and many other Google executives, in the trial came off as disingenuous.
Fitzpatrick began working for Google as a summer intern in 1999, and has been reporting directly to CEO Sundar Pichai for years. Fitzpatrick testified to Google’s privacy and security efforts, characterizing Google’s approach to security with a three-tiered pyramid, claiming that Google is “secure by default,” “private by design,” and that the “user [is] in control.” Discussing some specific privacy and security developments, Fitzpatrick claimed that Google now offers much more transparency than it has in the past and has made it much easier for users to control their privacy, in that Google now prompts users in a variety of ways to change their privacy settings through a “Privacy Checkup.”
The DOJ’s cross examination called her credibility into question by sharing a 2019 email written by Google’s self-described “privacy obsessed” Chief Marketing Officer, Lorraine Twohill, in which she made 30 concrete suggestions to Fitzpatrick and other Google executives, including CEO Sundar Pichai, as to how Google could better serve privacy objectives. DOJ focused on eight of them, which Fitzpatrick confirmed that Google had yet to implement 33 months later. She agreed that Google had the engineering capability to make these changes, but said Google has to make decisions.
On Tuesday, Google called Richard Holden to the stand. Though Holden recently took on a new title at Google, VP for Product Management for Google Chrome, he previously served as the General Manager for Google Travel and worked on the travel team for over a decade. Using the EU as an example, the DOJ argued that Google only improves products under pressure of fines and regulation.
After a brief redirect of Holden, Google then called Adrienne McCallister, Google’s VP for Global Partnerships. McCallister served as a lead negotiator in securing Google’s current revenue share agreements with three major wireless carriers Verizon, AT&T, and T-Mobile, which have been in effect since 2021. To discuss the deal terms, Judge Amit Mehta agreed to Google’s request to conduct its direct examination in closed session given that the deal terms are still in effect. The courtroom reopened during the DOJ’s cross-examination of McCallister, which once again illuminated Google’s view of what truly gave value to the RSAs it has with carriers.
From our friends at TWIGA:
In particular, the DOJ focused on Google’s accidental omission of its search exclusivity provision from its agreement with Verizon. In one email, a member of McCallister’s team wrote of the omission, “[T[he exclusivity provision was removed (!!) so we are paying Verizon for basically nothing right now,” implying that search exclusivity was the only aspect of the RSA providing any real value to Google. The employee continued, “the highest priority is re-securing exclusivity.” McCallister agreed that search exclusivity is a high priority for Google, but parroted CEO Sundar Pichai’s unconvincing rationale that its importance was in its “promotional” value for Android or as an incentive for carriers to adhere to security updates.
Then, Jamie Rosenberg, a former Android executive who still works as an advisor, defended Google. The DOJ asked him to explain an internal Google doc that instructed employees to avoid using certain words and phrases that could trigger antitrust law regulators. The Google document titled “Five Rules of Thumb for Written Communications” , stated that “words matter. Especially in antitrust law.”
Then, Jamie Rosenberg, a former Android executive who still works as an advisor, defended Google. The DOJ asked him to explain an internal Google doc that instructed employees to avoid using certain words and phrases that could trigger antitrust law regulators. The Google document titled “Five Rules of Thumb for Written Communications” , stated that “words matter. Especially in antitrust law.”
On Thursday, Google started by playing video deposition testimony of Dan Levy, former VP of Ads at Meta. Levy’s testimony at times came across as unreliable or evasive. He continually stated that he did not know or have thoughts on certain basic advertising concepts. For example, when the DOJ attorney asked him what “CPC” stands for, he responded, “I believe it’s cost-per-click but I’m not certain.” He was also presented with a document that read, “[S]earch and social . . . [are] the most complementary in a cross-channel relationship for a variety of reasons,” but when asked if he agreed that social and search are complements, Levy responded that he hadn’t thought about it. In response, the DOJ reminded him, “[Y]ou lead Meta’s ads and business products.” Eventually, he testified, “I believe they could complement each other.” In a 2021 email, Levy wrote, “[P]eople don’t come to FB products with intent (unlike search),” indicating that he did understand the stark differentiation between Meta’s ad products and Google Search ads.
Jeffrey Ezell, VP of Strategy and Business Development at AT&T, was up next. He testified that he believed that Google meant to preclude preinstallation of “general intent search,” indicating that, contrary to what its defense has argued, Google recognizes general search services as a market in which it competes. When asked why AT&T chose Google and not another general search provider, Ezell stated, “Search is a scale business.”
Ezell’s testimony showing that Google recognized general search engines as a distinct product market contradicts Google’s economics expert, Dr. Mark Israel, who testified that general search services do not constitute an antitrust market. He instead offered a “query-by-query” market encompassing effectively every source of information in response to a search across the entire internet.
The week ended with arguments on evidence—Judge Mehta reserved ruling on how to handle inadvertently disclosed confidential evidence. Google has just one more expert witness left to call on Monday: Professor Kevin Murphy from UChicago.
After that, the DOJ will begin its rebuttal on Wednesday with 2 or 3 experts lined up.
After Pichai, the DOJ successfully exposed Google’s expert technical witness Edward Fox, a Professor of Computer Science at Virginia Tech, as not independent or credible Fox conducted an experiment and study which led him to believe that a majority of the Google-Microsoft quality gap must be explained by “factors other than user interaction data”. It became clear through the DOJ’s cross-examination of Fox that Google had an inordinate amount of influence and control over the study, calling into question its independence.
The DOJ asked Fox whether Google’s counsel told him to use fewer footnotes than he usually would, asking whether his “original report could have had another hundred footnotes.” Fox replied, “Sure.”
From our friends at TWIGA:
The DOJ showed that Google had discretion over critical aspects of the study, and that for some of those aspects, Fox did not know the specific details of them until months after the study. In one exchange regarding how many human raters Google used, Fox admitted that he did not know the exact number until a conversation with a Google engineer four or five months after the experiment had completed and his report was finished, saying, “I wanted to find out the specifics,” after the fact of the experiment. Fox also admitted that he did not even have a list of Google engineers who worked on the experiment. The DOJ also asked Fox if he had reviewed the code Google used in the experiment; Fox testified he did not review code in this case.
Google then called Dr. Ben Gomes, Google’s current Senior Vice President of Education. Gomes previously worked in Google Search from 1999 to 2020, serving as the head of the Search team from 2016 to 2020. Similar to Pichai, Google’s lawyer gave Gomes an opportunity to paint a vivid picture of the good old days of Google. Gomes excitedly spoke about the “very open and very free” culture and innovations at early Google. But monopolies rarely begin as monopolies. And first mover innovation does not create a right for Google, once it had formed its monopoly, to engage in anticompetitive conduct.
The DOJ had the last word with Gomes, who seemed to see, from the inside, that Google Search was prioritizing revenue over users. Gomes agreed with the DOJ assertion that “having more queries helps with ranking search results.” The DOJ asked Gomes if, at any time during his 20 years working on Google Search, he had ever studied “diminishing returns” of user data. He testified that he had not and did not “know the details of when diminishing returns set in,” which undermines Google’s implied assertion that other search competitors have “enough” data to compete.
The week closed with Google’s expert witness Mark Israel, still on stand after two days. The DOJ destroyed expert Mark Israel’s credibility at the get-go and turned him into a defacto gov witness. The DOJ read out a previous judge’s verdict calling out Israel’s credibility and that is opinions were “entitled to no weight.”
Next week will begin with more of his cross-examination. Google says it will be calling its last witness on Nov. 13 and finish its defense by Nov. 14.