DOJ Agrees to Keep Google Emails and Memos Out of Public View

In its landmark antitrust lawsuit against tech giant Alphabet Inc.’s Google, the US Department of Justice has taken down public access to emails, charts, and internal presentations that were previously presented as evidence.

Google had challenged the government’s online release of the documents, and the court welcomed its concerns. The result: a trial that is much more difficult for the public to watch than the equally 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 major tech company since. With all the exhibits and evidence unearthed for discussion, it’s also a rare look into the inner workings of one of the most powerful companies of the modern era.

The Department of Justice presented its case, and it released exhibits for use in court that are not otherwise available to the public except in person. The site used to have a section on trial exhibits with links to documents; those links have since been removed. Google itself has also routinely released court material after several days of court hearings, including a full presentation of its opening statement.

Although Judge Amit Mehta, who is presiding over the trial, said he would rule on the public’s right to access the evidence presented in court on Wednesday, the exhibits remain offline and the court has not said when or if they will be released again. A Justice Department spokeswoman declined to comment Wednesday on when the exhibits would be made available again.

The court exhibits will likely eventually become part of the public record — something Google opposed, saying things like employee email addresses or phone numbers would be revealed.

It’s a far cry from Microsoft’s experiment in the late 1990s, when every major news organization covered the hearing on a daily basis. At the time, Microsoft was second to none as an iconic technology company, and its chairman, Bill Gates, was as present as basketball star Michael Jordan. In that trial, which lasted more than eight months, news outlets gave the proceedings about as much scrutiny as Clinton’s impeachment. When a federal appeals court ruled in 1999 to make Gates’ infamous interrogation public, it was seen as a victory for the public’s right to information.

During Google CFO Michael Roszak’s testimony Tuesday, the Justice Department sought to offer notes he took in July 2017 during a communications training course provided by Google. In the notes, he wrote: “Google is able to ignore demand and focus on supply.” Roszak began testifying about the document in open court Tuesday afternoon, saying its statements were “full of hyperbole and exaggeration.”

Google objected to the document being included in the exhibit as irrelevant.

“To understand what this is all about, every document that they make into evidence, they post on their website and it’s widely picked up,” Google lawyer John Schmidtlein said in his rebuttal. “This is not a business record and has no relevance to these proceedings.”

The judge said he was surprised to find that the Justice Department had posted the exhibits on its website, although he acknowledged that “once it’s admitted into evidence, frankly, it’s a public record.”

“It’s something I wish I had been told,” Mehta said. “I think the judge will be told before the evidence in the record is actually put on a publicly available website.”

Kenneth Dintzer, the government’s attorney, quickly apologized. In the next few hours, the Ministry of Justice removed all previously announced exhibits.

On Wednesday morning, Mehta met with Schmidtlein and top lawyers from the Justice Department and the states in his private chambers. The court then met in closed session to continue Roszak’s testimony until the afternoon.

Later in the day on Wednesday, Google lawyer Edward Bennett reiterated the argument that the document written by Roszak should not be accepted.

Mehta ruled that the exhibit be admitted and expressed frustration that Google had put him “at a disadvantage” by insisting that testimony that would have provided context be held in camera.

“This does not contain anything confidential,” he said. “I understand that it is somewhat embarrassing for the witness.”

Neither Mehta, Google nor the Justice Department said anything in court Wednesday about when and where future exhibits from the trial would be made available.

The following are exhibits provided by Google or the Justice Department that were uploaded before they were removed on Tuesday:

Google Exhibition – Excerpt from DX440

Gov Exhibit – UPX0001 – Google Presentation – Google Search Ads 101 (April 17, 2020)

Gov Exhibit – UPX0076 – Google Exhibit – Search entry points on Android (September 28, 2016)

Gov Exhibit – UPX0123 – Google Presentation – On the Strategic Value of the Default Homepage 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 (26 Aug 2009)

Gov Exhibit – UPX0184 – Email from Hal Varian (Google) to Dana Wagner (Google) Re Fwd Time Mag Article on Bing (26 Aug 2009)

Gov Exhibit – UPX0314 – Email from Jim Kolotourus (Google, Christopher Li (Google)) Re Google Search Boosting In-App Search on Device (6/10/2020)

Government Exhibit – UPX0452 – Email from Hal Varian (Google) to David Stallibras (Fingleton), Re conveys ad rates (9/9/2020)

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) – Important SQV Update (May 3, 2019)-1

Gov Exhibit – UPX0960 – Google Presentation – On the Strategic Value of the Browser Front Page to Google (April 2, 2007)

Gov Exhibit – UPX1066 – Google Exhibit – Antitrust Basics for Search Team (March 2011)