Jose Luis Magana/AP Photo
Google’s top litigator John Schmidtlein leaves federal court on Wednesday, September 20, 2023, in Washington.
The U.S. v. Google antitrust trial is the first major antitrust case of the century taking place amidst a resurgent anti-monopoly movement. Yet it is turning more into a meta news event about the historic lack of public access to the legal proceedings. Public interest in the case has effectively been neutered as Google continues to block open witness testimony and document exhibitions.
The main lesson Google appears to have learned from the Microsoft antitrust case from the 1990s is that media scrutiny and bad headlines can sink a corporate defendant’s reputation, if not its case. “Working the refs” is probably the best way to sum up Google’s novel legal strategy in court, and so far it seems to be succeeding with federal district court Judge Amit Mehta.
The legal team has developed a coordinated effort to deny as much evidence as possible from entering into the public record. Google has opted to dissuade the judge from allowing what it calls confidential business information out into the public, which the firm’s attorneys argue will only generate “clickbait.”
During the first week, Google’s lawyers unveiled its full-court-press obstruction strategy. The defendants raised “hearsay” objections throughout almost every witness examination run by the Justice Department, especially during that of the star opening witness, Google chief economist Hal Varian. Documents that Google objected to disclosing included Varian’s own emails with reporters and an unedited transcript of an interview conducted with news publication CNET. At one point, Google’s interruptions became so incessant that even Judge Mehta grew tired with the tactics and pushed back. But he’s largely complied with the defendant’s demands.
Google’s pressure campaign continued into the second week, which resulted in over half of the week’s trial taking place in closed proceedings, per an analysis from Matt Stoller. Tuesday morning also began in closed session. By flooding the zone with objections, the company managed to put enough pressure on Judge Mehta to withhold from the public substantial amounts of documents and key witness examinations, including most of the testimony of Apple senior executive John Giannandrea and portions of testimony from Google’s VP of finance Mike Roszak.
These witnesses were interrogated to build the government’s case that Google uses its monopoly over search engine functions to distort advertising markets. It also pays billions of dollars to be the default search engine on Apple and Android devices, which it then weaponizes through revenue-sharing agreements with partners to beat back rival search engines. Even the amount of money Google paid to Apple for default status has been kept secret, even though both are publicly traded companies and the figure represents revenue for Apple and an expense for Google.
When witness examinations take place in a closed trial, the news is only announced that day, and the court can come back into session at any time. During closed-door sessions, members of the press resort to waiting around just outside the courtroom, hoping to catch one of the lawyers to get a comment when they leave. These extensive closed-door sessions also dissuade reporters from showing up at all, unless the trial is their sole dedicated beat.
Out in the hallway, one of the attorneys representing the delegation of state attorneys general who have joined the DOJ in the lawsuit mentioned that the truncated public accessibility in the trial was “totally unprecedented.”
Jason Kint, a representative for a consortium of news publishers called Digital Content Next, has been attending the trial since the first week. He remarked that “Google’s fight to keep evidence sealed from the public helps soften press coverage and embarrassment for the company.”
Furthermore, he noted that it’s a tactic to withhold information from regulators and elected officials in the U.S. and overseas, policymakers who could initiate further investigations or use the evidence to crack down on the company.
“Working the refs” is probably the best way to sum up Google’s novel legal strategy in court—and so far it seems to be succeeding.
The level of secrecy took another turn in the middle of last week. During a dispute over evidence displayed during Roszak’s testimony, Google lead counsel John Schmidtlein complained to the judge that the DOJ had been posting the evidence from the trial to online exhibits on the government’s website, a fairly routine practice for government cases. Mehta seemed not to know the DOJ had been doing this, however, and remarked sternly that the plaintiffs usually ask the judge for permission if they’re going to post evidence.
At this point, Bloomberg’s antitrust reporter Leah Nylen stood up from the gallery and objected, explaining that the exhibits were of great public service to reporters covering the trial. They’re also one of the only avenues for the non-D.C.-residing public to follow the trial, since a public audio feed was denied by Mehta at the start of the trial. Taken aback, Judge Mehta addressed Nylen and said Bloomberg would have to get their lawyer to consult with him, the defendant, and plaintiffs.
The DOJ deferentially said it would take down the public exhibits from its site until it worked out an agreement with the judge. What Google did not mention is that they had also previously been publicly posting the evidence from the trial that they believed helped their case.
As of Tuesday, a decision on public exhibits had not been reached. Though the exhibits that the DOJ posted have now been preserved online via the Wayback Machine digital archive, the Justice Department going into this week had still not reinstated the exhibits on its site. The DOJ wants exhibits posted at the end of each trial day, and Google has requested a 24-hour waiting period. The judge may rule today.
The evidence that Schmidtlein was originally challenging led to its own controversy.
The government’s examinations of both Roszak and Google VP of advertising Jerry Dischler were mainly trying to establish that Google internally targeted search ads, as opposed to other digital display ads, as a distinct market—a critical part of the government’s monopolization charge against Google in the case. They also sought to show that search ads were extremely valuable for advertisers. Dischler disputed the government’s questions, at one point calling their view of the importance of search ads outdated. However, one key piece of evidence brought by the government undermined Dischler’s claims.
The evidence that Google immediately objected to as “hearsay” entailed a personal memo from 2017 written by Roszak with a header that read: “Search ads are one of the greatest business models ever created.” We haven’t been able to see the full context of the document, as well as Roszak’s testimony, because a transcript hasn’t been released yet. Google claimed the evidence should not be admitted into the public record since it reflected the VP practicing his speaking skills for a tutorial, and not his real views. Judge Mehta called the evidence “embarrassing” for Google, which is not really a legal basis for secrecy, but also said the government’s questions would have to be examined in a closed-door session.
On top of that, Judge Mehta also cut off another access feed to the trial at the end of the week. For most of the trial, the general counsels for the parties involved directly or at least implicated in the legal proceedings were granted a Zoom link to follow the case. Last Thursday, Mehta cut off that link too, because of expiring pandemic-era courtroom policies that temporarily expanded digital access. This was the same reason the judge gave for not allowing a public audio feed. The state attorneys general and Google’s team can still use the Zoom link though.
“Most of the public can’t hear the arguments in the case but Google’s shills can sit comfortably in their law firm offices and follow the trial,” said Luther Lowe of Yelp, whose legal counsel had a Zoom link prior to Thursday.
