Facing breakup, Google must disclose divestment analysis

ALEXANDRIA, Va. (CN) — A federal judge on Friday ordered Google to produce sensitive internal documents analyzing the divestiture of the tech giant’s massive ad server and ad exchange, the lynchpin of a business empire already declared a monopoly in federal court.

In a ruling from the bench, U.S. Magistrate Judge John F. Anderson instructed Google’s lawyers to produce documents on the nature and scope of work needed to modify the dotcom’s ad exchange and server in order to facilitate divestiture.

The decision, out of the U.S. District Court for the Eastern District of Virginia, comes as attorneys from Google and the Justice Department prepare for another set of legal proceedings aimed at determining what the tech giant must do to remedy antitrust violations.

A trial, planned for September, will be the second part of a massive court case over Google’s domination of the ad tech market. The first part culminated in April with a ruling by U.S. District Judge Leonie Brinkema, a Bill Clinton appointee. She found that Google wielded monopolistic power in the advertising industry.

Separately, Google has also been convicted of antitrust violations in a case involving its search engine.

During the buildup to Brinkema’s April decision, Google executives understood that the Justice Department’s investigation could end in divestiture — that is, the breaking up or selling off of parts of Google’s corporate monopoly.

“Since at least 2020," Justice Department attorneys noted in court filings, “nonlegal employees at Google have analyzed the feasibility of making changes to the way Google operates its ad tech business, including analyses of the timeline and purported cost, burden, risks, or difficulties associated with divesting Google’s publisher ad server (DFP) or ad exchange (AdX) products.”

Now, government attorneys want to read those assessments. Matthew Huppert, one Justice Department attorney, argued in court that the documents at issue are factual and don’t cross attorney-client privilege lines.

Jeannie Rhee, a Google attorney, pushed back, saying the Justice Department had no substantial need for the documents and that government lawyers could get the same information elsewhere. While the DOJ believes the documents have impeachment potential, Google says that’s just “rank speculation.” Company lawyers also noted that during discovery for the initial trial two years ago, a court determined that the documents were protected work products and that Google did not have to produce them.

But the situation has changed, Anderson said during a back-and-forth with attorneys on Friday, and these internal documents are now relevant.

If a Google engineer evaluated divestiture and concluded, “‘we can do it by A, B and C,’ but now he says, ‘We can’t do it,’ wouldn’t that come into play for impeachment purposes?” the judge asked.

Some of the analysis involves privileged information. Justice Department attorneys have already redacted various lines in their filings.