Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 1 of 34
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`United States of America, et al.,
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`v.
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`Google LLC,
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`State of Colorado, et al.,
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`v.
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`Google LLC,
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`Plaintiffs,
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`Defendant.
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`Plaintiffs,
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`Defendant.
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`Case No. 1:20-cv-03010-APM
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`HON. AMIT P. MEHTA
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`Case No. 1:20-cv-03715-APM
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`HON. AMIT P. MEHTA
`
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO COMPEL
`PRODUCTION OF DOCUMENTS OF YELP, INC. CUSTODIAN LUTHER LOWE
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`Yelp has failed to demonstrate any e-discovery burden or purported First Amendment
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`concerns that outweigh the relevance of Luther Lowe’s documents to this case. To date Yelp has
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`produced a mere 10,000 documents in response to Plaintiffs’ and Google’s subpoenas, of which
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`only 2,400 are in response to Google’s search terms – a production volume mismatched to Yelp’s
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`contribution to Plaintiffs’ allegations.1 Yelp should be compelled to use the very same search
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`terms it has agreed to for other custodians to identify responsive, non-privileged documents from
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`Mr. Lowe’s records.
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`1
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`.
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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 2 of 34
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`I.
`Luther Lowe’s Documents Are Relevant to this Litigation
`In the years leading up to the filing of these cases, Mr. Lowe testified and made frequent
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`public appearances on Yelp’s behalf about the allegations in this case.2 He has held himself out
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`as a leading source about antitrust enforcement and alleged harm to Yelp caused by Google.3 His
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`statements plainly influenced the drafting of the Complaints.4 Google seeks discovery regarding
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`the basis for these statements. Contrary to Yelp’s brief, the extent of Mr. Lowe’s personal
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`knowledge is itself a discoverable fact that Google is entitled to test based on his documents.
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`Moreover, Mr. Lowe’s declaration that the presentations that he made to the government
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`were “primarily drafted by Yelp’s outside counsel and/or consultants acting at counsel’s
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`direction”5 confirms that the most readily available, non-privileged information is his related
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`internal or external correspondence. Even if other custodians collectively have some of this
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`knowledge – which Yelp has failed to substantiate with any overlap analysis – Google would still
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`be entitled to discovery from Mr. Lowe’s documents, as those custodians were not the employees
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`whose statements parallel the Complaints.
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`II.
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`Yelp Refused to Negotiate a Reasonable Scope and has Failed to
`Demonstrate Undue Burden
`Yelp’s lengthy declarations about its burden and Google’s purported unreasonableness
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`2 See, e.g., Luther Lowe U.S. Senate Testimony,
`https://www.judiciary.senate.gov/imo/media/doc/Lowe%20Testimony.pdf; Luther Lowe Ohio Senate Testimony,
`https://search-
`prod.lis.state.oh.us/cm_pub_api/api/unwrap/chamber/133rd_ga/ready_for_publication/committee_docs/cmte_s_judi
`ciary_1/submissions/cmte_s_judiciary_1_2019-10-17-0230_917/10.17.19lowetestimony2.pdf.
`3 Indeed, Mr. Lowe coordinates a newsletter about antitrust and Google (“This Week in Google Antitrust”
`(TWIGA)). See, e.g., https://twitter.com/lutherlowe/status/1096245290531729409?lang=en (linking to subscription
`page for “This Week in Google Antitrust” and noting that “TWIGA is free”); Interview of Lowe on C-SPAN (Mar.
`17, 2020), https://www.c-span.org/video/?470421-1/communicators-luther-lowe; Angelica Stabile, Yelp executive
`accuses Google of doing ‘a lot to harm consumers and small businesses’, Fox News, Sept. 10, 2020,
`https://www.foxbusiness.com/technology/yelp-executive-google-harms-consumers-small-business.
`4 See Google Mot. at 4. Compare Luther Lowe U.S. Senate Testimony (see n.2) at 4-6, with States’ Complaint ¶¶
`168, 175-76, 183 (including preceding section heading IV.C.2), and 187 (allegations about Google’s entry into
`“verticals,” OneBox, and purported harm to specialized vertical search providers).
`5 Declaration of Luther Lowe, dated Oct. 8, 2021, at ¶ 5.
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`2
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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 3 of 34
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`neglect to mention that (1) it initially agreed to produce Mr. Lowe’s documents subject to
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`negotiations on scope; (2) Google repeatedly sought to negotiate search terms or limitations to
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`reduce burden and explained its reasons for seeking the documents (see Appendix E at 1-2,
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`Appendix F); and (3) fail to provide any hit counts about custodian overlaps in support of its claim
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`of burden.
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`Yelp’s prior productions or proposed substitute custodians are not sufficient in the absence
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`of Mr. Lowe’s documents. In the absence of hit reports, a search by Google’s counsel in the email
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`metadata of Yelp’s already-produced documents yields 74 hits in 10,000 documents for the names
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`“Luther Lowe” or “Luther,” or Lowe’s email address “
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`.” Google also received
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`Yelp’s September 21, 2021 letter (Yelp. Opp. Ex. E), and then reviewed the documents Yelp has
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`produced in response to Plaintiffs’ subpoenas for information about Yelp’s substitute custodians.
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`These exercises only confirmed the need for this Motion because the documents reflect little
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`overlap (74 hits thus far) between these custodians and Mr. Lowe (Google Mot. at 4).
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`Documentary discovery is necessary for Google to understand the basis of claims in the
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`Complaints, e.g., States’ Complaint, ¶¶ 37-39, 51-55, 59-89, 96-102, 168-211, and to determine if
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`it will seek Mr. Lowe’s testimony in the case (the Plaintiffs are differently situated, having met
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`with Mr. Lowe and having unfettered access). Certainly, Yelp nowhere identifies a basis for
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`withholding his documents in toto. Yelp’s alternative proposal would also force Google to
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`evaluate and/or seek testimony of up to seven other people. This is inefficient and impractical.
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`Moreover, Yelp’s suggestion that Google’s requests should be “directed to Plaintiffs, not
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`third party Yelp,” see Yelp. Opp. at 4 n.2, should be rejected because Google’s requests seek Yelp
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`documents, both internal and external communications about the claims in this case, that would
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`not be captured by
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`. (Google Mot., Appendix C
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`3
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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 4 of 34
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`(summary of subpoena requests)).
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`Finally, Yelp’s complaints about the cost of producing Mr. Lowe’s documents ($55,000)
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`must be viewed through the lens of its status as an important third party in this case. As of the
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`filing of Yelp’s brief, it had produced 10,000 documents total in this litigation, with only 74 hits
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`in email metadata fields for Mr. Lowe’s first name, full name, or email address.
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`, and now productions during the
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`litigation, Yelp cannot hide behind expense to prevent Google from testing its complaints. Yelp’s
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`arguments also ring hollow as it has refused steps that would reduce its burden. Yelp would not
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`negotiate scope or limitations with Google or provide hit counts for Mr. Lowe, and instead
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`proposed to produce documents from multiple other individuals. Yelp caused itself more burden.
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`III.
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`Presumptive Designation of Documents as “Highly Confidential” Resolves
`Any Concerns Yelp Has Regarding Third-Party Names
`Yelp’s claimed concern about the disclosure of other third parties is resolved by Google’s
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`willingness to presumptively designate documents that identify such parties as “Highly
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`Confidential,” subject to appropriate de-designation by agreement with Yelp or via a ruling from
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`this Court. Yelp erroneously claims in its brief that (1) Google has cited “no authority” in support
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`of this point, and (2) that the Protective Order would allow documents with third-party names to
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`“be disclosed to both Google’s outside and in-house counsel.” (Yelp. Opp. at 6). Both points are
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`plainly wrong. First, Yelp fails to respond, much less distinguish, Klayman v. Judicial Watch and
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`Filanowski v. Wal-Mart Stores, Inc. (Google Mot. at 6 n.13),6 in which courts noted that the
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`presence of a protective order minimizes any potential chilling effect of production on third parties.
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`6 See Klayman v. Judicial Watch, Inc., 2008 U.S. Dist. LEXIS 142879, at *11-12 (D.D.C. Jan. 8, 2008) (declining
`to quash subpoena to third party and noting that the potential chilling effect of production was minimized by
`presence of protective order), aff’d, 2008 U.S. Dist. LEXIS 142884 (Apr. 2, 2008); Filanowski v. Wal-Mart Stores,
`Inc., 1999 U.S. Dist. LEXIS 24150, at *5-6 (D. Me. Oct. 29, 1999) (“Having failed to make some showing how
`Defendant’s possession of the list impairs . . . associational activities, especially in light of the recently issued
`confidentiality order, the Court is satisfied that the privilege does not apply in this case.”).
`4
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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 5 of 34
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`Second, Yelp misreads the Protective Order, which expressly provides that the designated Google
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`in-house counsel may not review Highly Confidential documents unless the producing party
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`consents and/or this Court has ruled upon a motion to de-designate after notice. (Dkt. No. 98, at
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`¶¶ 1(e), 12(d), 17)). Nor does Yelp have any basis whatsoever to question outside counsel’s
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`compliance with the Protective Order.
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`Finally, none of Yelp’s cited cases supports the conclusion that the relevance of Luther
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`Lowe’s documents is outweighed by a risk of chilling third parties. Yelp exaggerates the breadth
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`and understates the relevance of Google’s requests when making comparisons to Apple v. Match
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`and Wyoming v. U.S. Dep’t of Agric.7 Both cases involved broad requests about the associational
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`activities of the third parties and the formation of their advocacy groups, none of which are present
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`here. Yelp is conflating discovery about Yelp’s own allegations with discovery about the identities
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`or activities of third parties. Google’s requests are focused on Yelp and its factual bases for claims
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`about Google, and its search terms – to which Yelp has agreed for all other custodians – are tailored
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`to these issues. There is no basis for Yelp to oppose using the search terms with Mr. Lowe’s
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`documents, as none focus on the inner workings of associations or advocacy groups.
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`CONCLUSION
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`For these reasons, Google respectfully requests that the Court grant Google’s motion.
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`7 Compare requests in Apple Inc. v. Match Grp. Inc., No. 4:21-mc-80184-YGR, Dkt. 36 at 4 (N.D. Cal. Aug. 19,
`2021) (Google Mot., Appendix D, at 4) (seeking all documents about “formation, documents of incorporation,
`bylaws, purpose, objectives, activities, sponsorship, founders, meeting minutes, membership, and fees”) and
`Wyoming v. U.S. Dep’t of Agric., 208 F.R.D. 449, 452 (D.D.C. 2002) (seeking documents about specific advocacy
`groups including “meetings or conversations,” “notes, memoranda, or letters that relate in any way to any of these
`groups,” and “‘daytimers,’ calendars, and/or diaries”) with Google Mot., Appendix C (selected requests from
`Google’s subpoena to Yelp, for which Yelp has agreed to run search terms).
`5
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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 6 of 34
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`Dated: October 13, 2021
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`Respectfully submitted,
`
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`
`
`
`
`
`Wendy Huang Waszmer (D.C. Bar No. 478725)
`1301 Avenue of the Americas
`New York, New York 10019
`Tel: 212-497-7702
`wwaszmer@wsgr.com
`
`Susan A. Creighton (D.C. Bar No. 978486)
`Franklin M. Rubinstein (D.C. Bar No. 476674)
`1700 K St, NW
`Washington, DC 20006
`Tel: 202-973-8800
`screighton@wsgr.com
`frubinstein@wsgr.com
`
`WILLIAMS & CONNOLLY LLP
`
`John E. Schmidtlein (D.C. Bar No. 441261)
`Benjamin M. Greenblum (D.C. Bar No. 979786)
`Colette T. Connor (D.C. Bar No. 991533)
`725 12th Street, NW
`Washington, DC 20005
`Tel: 202-434-5000
`jschmidtlein@wc.com
`bgreenblum@wc.com
`cconnor@wc.com
`
`ROPES & GRAY LLP
`
`Mark S. Popofsky (D.C. Bar No. 454213)
`Matthew McGinnis (pro hac vice)
`2099 Pennsylvania Avenue, NW
`Washington, DC 20006
`Tel: 202-508-4624
`Mark.Popofsky@ropesgray.com
`
`Counsel for Defendant Google LLC
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`6
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`

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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 7 of 34
`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 7 of 34
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`APPENDIX E
`APPENDIX E
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`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 8 of 34
`
`Brandon Kressin <brandon@kanterlawgroup.com>
`Friday, August 20, 2021 8:37 PM
`Edelson, Ken; Waszmer, Wendy; Catherine Larsen; Reed Showalter
`Rubinstein, Franklin; Tennis, Brad
`Re: Yelp subpoena from Google
`
`Edelson, Ken
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`[External]
`
`Hi Ken:
`
`The one thing I want to clarify on is the hit counts. Our e-discovery team is running the terms, and my hope is to have
`the de-duped hit counts by Wednesday, but I cannot guarantee that will be possible. They have explained that they are
`running the searches on 300 GB of PST data, and there are some limitations on how quickly that can be executed.
`However, we are pushing them to conduct the searches with all speed, and I will reach out early next week to give you
`an update.
`
`One additional thing that we did not discuss on the call, but that I think makes sense to raise. We likely would be willing
`to agree to higher hit counts if we are able to use TAR to reduce the total amount of documents that need to be
`reviewed. We’re happy to jump on a call early next week to discuss in more detail what that might entail.
`
`Thanks, and have a nice weekend.
`
`Best,
`
`Brandon
`
`From: Edelson, Ken <kedelson@wsgr.com>
`Sent: Friday, August 20, 2021 7:08:06 PM
`To: Waszmer, Wendy <wwaszmer@wsgr.com>; Brandon Kressin <brandon@kanterlawgroup.com>; Catherine Larsen
`<catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`
`Brandon,
`
`
`Thanks for the call today about Yelp's response to Google's subpoena. To recap where we are, and please let us know if
`we missed/erred on anything:
`
`
`Timeline for Production
`
`
` Yelp anticipates a final production date of September 24 for all go-get documents, custodial documents, and
`data.
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`
`
`Custodians:
`
`
` To date, Yelp has proposed and agreed to the following custodians for Google's and the government’s
`subpoenas:
`
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`
`
`1
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`

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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 9 of 34
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`
`
`
`
`
`
`
`
`
`
` and Luther Lowe as custodians,
`In its July 16 letter to Yelp, Google proposed Yelp employees
`and requested information regarding
` responsibilities during her employment at Yelp, and the
`extent to which her role and custodial documents would be distinct from
`.
` Yelp agreed to provide written summaries regarding
` roles, responsibilities, and
`relevance to Google’s requests. Please provide this information no later than Tuesday, August 24.
` and Luther
` Yelp proposed to provide documents of a limited scope for proposed custodians
`Lowe. As Google's proposal was not to limit these custodians, we need additional information on how Yelp
`proposes to scope productions for these custodians in terms of time, search terms, or otherwise. As discussed,
`Yelp will also include information on the number of Mr. Lowe’s documents that would be duplicative of the four
`agreed-upon custodians’ documents. Please provide this information by Wednesday, 8/25.
`
`
`
`Search terms:
`
`
` We asked that Yelp provide information on initial overall totals for search hits, and that Yelp touch base on
`Monday as to the status. Yelp indicated that this information might not be available until Tuesday
`afternoon. We asked for this update, as we understand you need until Wednesday to provide deduplicated hit
`counts. We are hoping that we can come to an understanding of whether Yelp intends to object to significant
`portions of Google's July 29 search term proposal soon, given the length of time that has passed since providing
`the terms.
` By Wednesday 8/23:
` Yelp will provide deduplicated hit counts for Google’s search terms and any counterproposal Yelp plans
`to provide.
` As discussed, Yelp will also clarify the volume of documents removed from the final number of search
`hits because these documents are already included in the documents being produced to the
`Government Plaintiffs.
` As we noted, it is important for Google to know this information as early as possible, as it will inform Google’s
`consideration of whether to raise these issues with the Court.
`
`
`Data:
`
`
` Yelp provided no updates on Google’s pending data requests, listed in its July 29 letter, but proposed to have all
`data produced by September 24.
`
`
`
`
`Best,
`
`
`Ken
`
`
`
`
`
`
`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
`
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`
`From: Waszmer, Wendy <wwaszmer@wsgr.com>
`Sent: Thursday, August 19, 2021 9:47 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed
`Showalter <reed@kanterlawgroup.com>
`
`2
`
`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 10 of 34
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`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>; Edelson, Ken
`<kedelson@wsgr.com>
`Subject: Re: Yelp subpoena from Google
`
`
`Thanks - we'll send an invite and speak to you tomorrow.
`
`
`Wendy Huang Waszmer
`Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas
`New York, New York 10019
`T 212 497 7702
`E wwaszmer@wsgr.com
`
`
`
`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Thursday, August 19, 2021 9:46 PM
`To: Waszmer, Wendy <wwaszmer@wsgr.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed Showalter
`<reed@kanterlawgroup.com>
`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>; Edelson, Ken
`<kedelson@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`[External]
`
`That works for us. Thanks.
`
`
`Brandon Kressin
`202.455.4244
`brandon@kanterlawgroup.com
`
`
`
`
`
`
`From: Waszmer, Wendy <wwaszmer@wsgr.com>
`Sent: Thursday, August 19, 2021 8:45 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed
`Showalter <reed@kanterlawgroup.com>
`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>; Edelson, Ken
`<kedelson@wsgr.com>
`Subject: Re: Yelp subpoena from Google
`
`
`Brandon - Thanks - we have a conflict at 4:30pm, but could do 5pm et. Would that work?
`
`
`Wendy Huang Waszmer
`Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas
`New York, New York 10019
`T 212 497 7702
`E wwaszmer@wsgr.com
`
`
`
`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Thursday, August 19, 2021 9:30 PM
`
`3
`
`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 11 of 34
`
`To: Waszmer, Wendy <wwaszmer@wsgr.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed Showalter
`<reed@kanterlawgroup.com>
`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>; Edelson, Ken
`<kedelson@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`[External]
`
`Wendy,
`
`
`Would your team be able to do 4:30 EST instead?
`
`
`Thanks,
`
`
`Brandon
`
`
`Brandon Kressin
`202.455.4244
`brandon@kanterlawgroup.com
`
`
`
`
`
`
`From: Waszmer, Wendy <wwaszmer@wsgr.com>
`Sent: Thursday, August 19, 2021 8:28 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed
`Showalter <reed@kanterlawgroup.com>
`Cc: Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad <btennis@wsgr.com>; Edelson, Ken
`<kedelson@wsgr.com>
`Subject: Re: Yelp subpoena from Google
`
`
`Brandon & team:
`
`
`Following up on Ken's note - does 4pm et work for you tomorrow for a call? If so, Ken can send a meeting
`notice for then.
`
`
`Given our upcoming conference in the case on Aug 31, we'd like to see if we try to resolve open issues
`tomorrow. Thanks.
`
`
`Wendy Huang Waszmer
`Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas
`New York, New York 10019
`T 212 497 7702
`E wwaszmer@wsgr.com
`
`
`
`From: Edelson, Ken <kedelson@wsgr.com>
`Sent: Wednesday, August 18, 2021 10:49 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed
`Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`
`4
`
`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 12 of 34
`
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`
`Brandon,
`
`
`We are available from 4-4:30 pm EST on Friday afternoon if that works for your team.
`
`
`Best,
`
`
`Ken
`
`
`
`
`
`
`
`
`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Wednesday, August 18, 2021 10:42 PM
`To: Edelson, Ken <kedelson@wsgr.com>; Catherine Larsen <catherine@kanterlawgroup.com>; Reed Showalter
`<reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`[External]
`
`Ken:
`
`
`Thank you for your letter. We have been running the proposed search terms and custodians internally to
`assess the reasonableness of the resulting search volume. We should be able to give you an update on
`Friday. Please let me know as to your availability Friday afternoon.
`
`
`Thanks,
`
`
`Brandon
`
`
`Brandon Kressin
`202.455.4244
`brandon@kanterlawgroup.com
`
`
`
`
`
`
`From: Edelson, Ken <kedelson@wsgr.com>
`Sent: Wednesday, August 18, 2021 9:31 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`5
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`

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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 13 of 34
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`
`
`Counsel,
`
`
`Please see the attached correspondence.
`
`
`Best,
`
`
`Ken
`
`
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`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
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`From: Edelson, Ken
`Sent: Thursday, July 29, 2021 1:34 AM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`
`Counsel,
`
`
`Please see the attached correspondence. For search term proposals that Google has modified, a Word document is also
`attached containing Google’s edits to Yelp’s proposed terms in redline.
`
`
`Best,
`
`
`Ken
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`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
`
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`From: Edelson, Ken
`Sent: Friday, July 16, 2021 7:47 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`Jonathan, Brandon,
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`6
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`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 14 of 34
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`
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`Please see the attached correspondence.
`
`
`Best,
`
`
`Ken
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`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
`
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`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Friday, June 18, 2021 10:48 AM
`To: Edelson, Ken <kedelson@wsgr.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine Larsen
`<catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`[External]
`
`WSGR Team:
`
`
`Please see the attached letter and spreadsheet that should address the three items Ken mentioned below.
`We’re happy to discuss during our next meet-and-confer.
`
`
`Thanks,
`
`
`Brandon
`
`
`Brandon Kressin
`202.455.4244
`brandon@kanterlawgroup.com
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`
`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Friday, June 11, 2021 7:26 PM
`To: Edelson, Ken <kedelson@wsgr.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine Larsen
`<catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: Re: Yelp subpoena from Google
`
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`Thank you, Ken. We confirm we will provide all three items next week.
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`From: Edelson, Ken <kedelson@wsgr.com>
`Sent: Friday, June 11, 2021 5:38:30 PM
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`7
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`

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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 15 of 34
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`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
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`Brandon,
`
`
`We are confirming receipt of Yelp’s production. Following up on our email from last Wednesday, is your team able to
`provide (i) search terms for Google’s priority document requests, (ii) proposed templates for priority data requests, and
`(iii) summaries of Yelp’s data productions to date by next week?
`
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`Thanks,
`
`
`Ken
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`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
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`From: Edelson, Ken
`Sent: Wednesday, June 2, 2021 5:10 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`
`Brendan,
`
`
`Thanks for the helpful call last week, and for sending the PDF copy of ‘5032. Below is a recap of the next steps discussed
`on the call. Let us know if your understanding differs on any of these items.
`
`
`1. For document requests:
` Yelp will propose search terms for Google’s list of priority document requests, contained in our Tuesday 5/25
`email.
` Google will review these terms and propose edits and supplemental terms to cover the remaining requests in its
`subpoena (those not included in our 5/25 list of priority requests).
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`2. Custodians:
` Google will review Yelp’s org chart information and propose additional custodians.
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`3. Data requests:
` Your team will prepare templates based on Google’s priority data requests by the middle of this week, which
`WSGR will review before your team sends them to Yelp for evaluation of how Yelp can respond to these data
`requests.
` Your team will send a summary of its data productions to date.
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`4. Discussions on resolving objections:
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`8
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`

`

`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 16 of 34
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` 11: Yelp’s position is that it will limit its response to submissions to US regulators.
` 12: Yelp’s position is that it will produce materials relevant to this request that are also relevant to other
`requests in Google’s subpoena.
` 13: Yelp will revert with a position on Google’s proposal to select an employee or employees responsible for
`communications with industry organizations or coalitions related to search or search advertisements as a source
`of responsive documents for this request.
` 56/58: Yelp will provide periodically generated decks for evaluation of whether they contain information
`responsive to these requests.
` 69: Yelp will find out what information is available about the methods or systems for holding feedback or
`complaints Yelp receives, and whether those systems can be queried, as a possible source for documents or
`information to satisfy request 69.
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`Please let us know your team’s availability later this week or early next week for another call.
`
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`Thanks,
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`Ken
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`Kenneth Edelson | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas | New York, NY 10019 | direct: 212.453.2806 | mobile: 646.509.5765 | kedelson@wsgr.com
`
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`From: Brandon Kressin <brandon@kanterlawgroup.com>
`Sent: Wednesday, May 26, 2021 5:56 PM
`To: Edelson, Ken <kedelson@wsgr.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine Larsen
`<catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
`[External]
`WSGR Team:
`
`
`Thank you for taking the time to speak with us this afternoon. As we discussed, attached is a PDF version of
`YELP-00005032. Please note that, like the TIFF version we’ve already produced, this document is labelled
`HIGHLY CONFIDENTIAL.
`
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`Please let me know if you have any questions or are still having difficulties with the legibility of the document.
`
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`Thanks,
`
`
`Brandon
`
`
`Brandon Kressin
`202.455.4244
`brandon@kanterlawgroup.com
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`9
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`

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`Case 1:20-cv-03010-APM Document 240 Filed 10/14/21 Page 17 of 34
`
`From: Edelson, Ken <kedelson@wsgr.com>
`Sent: Tuesday, May 25, 2021 9:40 PM
`To: Brandon Kressin <brandon@kanterlawgroup.com>; Jonathan Kanter <jonathan@kanterlawgroup.com>; Catherine
`Larsen <catherine@kanterlawgroup.com>; Reed Showalter <reed@kanterlawgroup.com>
`Cc: Waszmer, Wendy <wwaszmer@wsgr.com>; Rubinstein, Franklin <frubinstein@wsgr.com>; Tennis, Brad
`<btennis@wsgr.com>
`Subject: RE: Yelp subpoena from Google
`
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`Brendan,
`
`In advance of tomorrow’s call, we are writing to summarize where we think we are, and provide points for discussion
`and proposed next steps.
`
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`Current status:
`
`
` We now have 5 subpoena productions totaling 107 records.
`.
` You sent the DOJ’s search terms, and indicated that you would provide a refined set of terms to narrow the
`scope (this is still forthcoming).
` You sent a list of requests from Google’s subpoena you believe the unrefined list of terms may cover.
` You indicated that information about Yelp’s data productions to date was forthcoming.
`
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`
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`Topics for Discussion & Proposed Next Steps:
`
`
`1. Custodians. We believe we will need more custodians than the four Yelp has offered to DOJ. You indicated on our last
`call that the four custodians offered were intended to cover DOJ requests 3, 5, 10, 11, 13, and 19. The list of priority
`requests we provide below and the Google subpoena cover a broader range of topics than these five requests. Much of
`the org chart information in YELP-00005032, which you referred us to last week, was not legible. Could your team send
`a PDF copy of the document, and we will check to see if it has the information we need regarding potential custodians?
`
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`2. Search terms. Thanks for sending the search terms proposed by DOJ. If Yelp agreed to the DOJ terms as is, there
`would not be significant coverage for our subpoena or priority requests. However, the terms are useful to see, and we
`would be glad to work on areas of overlap to avoid duplicative document pulls. From an efficiency standpoint, we think
`it makes most sense as a next step for your team to propose search terms for the list of priority document requests we
`provide below.
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`3. Priority Document and Data Requests. The following is a list of Google’s priority requests