Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 1 of 10
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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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`Plaintiffs,
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`v.
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`GOOGLE LLC,
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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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`DEFENDANT GOOGLE LLC’S MOTION TO EXCLUDE THE REPORT AND
`TESTIMONY OF DOJ PLAINTIFFS’ UNTIMELY DISCLOSED EXPERT
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`The parties are four months into a five-month expert discovery period, with depositions
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`beginning today, October 10. As the Court is aware from the parties’ reports at the regular status
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`conferences, each side has disclosed several experts, and the parties exchanged voluminous
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`expert reports in the opening round on June 6 and the rebuttal round on August 5. The parties
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`served their third and final round of reply expert reports on September 26. This last round of
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`expert disclosures were, in Plaintiffs’ own words when they requested that the Case Management
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`Order (CMO) allow for three rounds of reports instead of two, a “chance to serve a reply in
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`support of the opening report.” ECF 70 at 4 (emphasis added). DOJ Plaintiffs now offer – in
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`this third round – Dr. Kirsten Martin, a new expert witness who offers opinions on privacy issues
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`entirely unconnected to the opinions offered by the DOJ Plaintiffs’ witnesses in the opening
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`round of reports. DOJ Plaintiffs’ failure to disclose Dr. Martin earlier requires that her opinions
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`be struck.1
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`1 Google notified DOJ Plaintiffs on October 3 that Google intended to brief this issue in the JSR
`that is due to be filed on October 12 in advance of the October 14 status conference. DOJ
`Plaintiffs did not agree to brief the issue in the JSR, prompting Google to file this motion.
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 2 of 10
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`There is no excuse for DOJ Plaintiffs offering a new privacy-focused expert in the third
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`and final round of expert reports. DOJ Plaintiffs put privacy at issue in the case, and whatever
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`expert testimony they wished to offer, the time to make the required disclosures was in the first
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`round of expert reports exchanged four months ago. It is certainly far too late in the reply round,
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`and this late disclosure unfairly disadvantages Google because it has no opportunity to offer a
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`responsive report to the opinions first disclosed in this reply round. Not only was Dr. Martin
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`never previously disclosed, but her report advances an entirely new theory with respect to
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`privacy, not introduced by any of DOJ Plaintiffs’ other experts, some of whom opined on
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`privacy during the initial round of expert disclosures. DOJ Plaintiffs’ strategy of hiding the ball
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`until the last round of reports is not permitted under the CMO or Federal Rule of Civil Procedure
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`26, and under Rule 37, the appropriate remedy is exclusion.
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`BACKGROUND
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`The CMO provides for three simultaneous rounds of expert reports. The third “reply”
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`round was a provision of the CMO that Plaintiffs proposed and that was litigated as one of the
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`disputed issues with respect to the CMO. In requesting that the Court permit a third “reply”
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`round, DOJ Plaintiffs represented: “Plaintiffs’ proposed schedule does not give either Party an
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`unfair advantage. The Parties will serve their opening reports simultaneously, the other side will
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`serve a rebuttal, and then each side will have the chance to serve a reply in support of the
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`opening report.” ECF 70 at 4 (emphasis added). And in ruling on the issue and allowing for the
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`three rounds of reports, the Court stated, “I do think it may be useful to have those just if for no
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`other reason than to sharpen the issues, and frankly, I think it will be helpful for the parties to
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`have replies, and, at the end of the day, will probably provide for a . . . sharpening of the lines of
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`inquiry during depositions and ultimately trial.” ECF 88 at 28 (emphasis added).
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`2
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 3 of 10
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`On June 6, DOJ Plaintiffs disclosed five experts; the Colorado Plaintiffs disclosed two
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`experts; and Google disclosed eight experts. Google’s opening round of expert disclosures
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`included the report of Dr. Catherine Tucker, a Ph.D economist who offers opinions specifically
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`relating to data privacy and competition regarding data privacy. The entire focus of Dr. Tucker’s
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`54-page report was a response to the DOJ and Colorado Plaintiffs’ claims that “in the absence of
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`Google’s alleged conduct, consumers would have enjoyed superior privacy and search.” Ex. A,
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`Tucker June 6 Report ¶ 7.2 Specifically, Dr. Tucker described her assignment as follows:
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`Based on my expertise in the economics of digital markets and data
`privacy, I have been asked by counsel to address the following questions:
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`●
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`To what extent do firms collect data on consumers and how
`is consumer data typically used by firms in the ordinary
`course of business?
`What are peoples’ attitudes regarding data collection and
`data privacy and what factors determine peoples’ decisions
`to share data with firms?
`To what extent, if at all, can increased competition be
`expected to result in less data collection and increased data
`privacy?
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`Ex. A, Tucker June 6 Report ¶ 6. Dr. Tucker offers opinions on each of those questions.
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`Summarized briefly, she opines that (a) Google, like other firms, collects data from users to
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`provide search and search advertising services and to improve the quality of those services; (b)
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`peoples’ attitudes towards data privacy vary, and their considerations and behavior can also vary
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`by context; (c) Google offers data privacy controls so that users can balance their individualized
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`2 Specifically, the DOJ Plaintiffs allege, in the opening paragraphs of their operative Complaint,
`that “American consumers are forced to accept Google’s policies, privacy practices, and use of
`personal data.” ECF 94 ¶ 13. The DOJ Plaintiffs’ Complaint further alleges that the challenged
`conduct has harmed consumers by “reducing the quality of general search services.” The
`Complaint is short on specifics; the most provided is that this “include[s] dimensions such as
`privacy, data protection, and use of consumer data.” Id. ¶ 167. The Colorado Plaintiffs made
`similar allegations in their Complaint. State of Colorado v. Google, LLC, No. 1:20-cv-03715-
`APM (D.D.C.), ECF 3 ¶¶ 36, 204. Dr. Martin is designated only by DOJ Plaintiffs; therefore
`this brief is directed only at DOJ Plaintiffs.
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`3
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 4 of 10
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`desires for data privacy and personalized services; and (d) the academic literature and associated
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`empirics do not support the claim that more competition would lead to more data privacy. Id. ¶
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`9.
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`In contrast, DOJ Plaintiffs did not disclose a standalone expert on privacy in the initial
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`round; instead, they proffered expert economists offering opinions on a range of subjects,
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`including opinions on privacy. Specifically, two of the five experts disclosed by the DOJ
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`Plaintiffs opined on matters relating to privacy.3 The first, economist Dr. Michael Whinston,
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`submitted a report spanning 535 pages and 1,404 numbered paragraphs; the discussion of privacy
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`comprises seven pages and 16 numbered paragraphs. Whinston June 6 Report at 483–90. Dr.
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`Whinston opines that what he calls “the absence of search competition” has caused Google to
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`“not improve[] its Search privacy policies as significantly or quickly as it would have in a more
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`competitive market.” Id. ¶ 1224. The second, behavioral economist Dr. Antonio Rangel,
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`includes an “opinion on the impact of these search engine defaults on how consumers weigh
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`privacy in their search engine choices.” Rangel June 6 Report ¶ 6. Dr. Rangel’s privacy-specific
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`analysis spans seven paragraphs. He concludes that “consumers’ current search engine choices
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`do not provide a sound metric of the value of consumer privacy” because consumers are biased
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`in favor of default search engines and “confused” about privacy in search. Id. ¶ 134.
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`In the second/rebuttal round of expert reports exchanged August 5, the DOJ Plaintiffs did
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`not disclose a new expert focused specifically on privacy to rebut Dr. Tucker. Rather, DOJ
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`Plaintiffs’ rebuttal to Dr. Tucker consisted of opinions from their previously-disclosed
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`economists, Drs. Whinston and Rangel. Dr. Whinston’s response to Dr. Tucker comprises two
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`3 The Colorado Plaintiffs’ proffered expert economist, Dr. Jonathan Baker, made passing
`references to privacy in his report disclosed June 6; it contains even less specifics than the DOJ
`Plaintiffs’ experts.
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`4
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 5 of 10
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`pages of his 230-page report; Dr. Rangel’s response to Dr. Tucker is the singular focus of his 24-
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`page report. Dr. Tucker submitted a rebuttal report (Ex. B, Tucker Aug. 5 Report) responding to
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`the privacy-related opinions offered by Drs. Whinston and Rangel in their opening reports.4
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`The parties exchanged reply reports on September 26. As in the rebuttal round, Google’s
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`privacy-focused expert Dr. Tucker responded to the privacy-related rebuttal opinions offered by
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`the DOJ Plaintiffs’ experts Drs. Whinston and Rangel, and vice versa. This time, however, DOJ
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`Plaintiffs also disclosed a new expert, Dr. Kirsten Martin, who submitted a “reply” report
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`focused exclusively on privacy. See Ex. C, Martin Sept. 26 Report. Dr. Martin’s report is styled
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`as a response to Dr. Tucker’s rebuttal of Drs. Whinston and Rangel, but that is a charade. Surely
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`recognizing the impropriety of offering new opinions by a new expert witness in the final round
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`of reports, Dr. Martin’s report tries to dress up her new opinions as points that Dr. Tucker
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`supposedly “fails to consider.”5 Dr. Martin opines regarding “consumer privacy preferences and
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`expectations regarding non-contextual, secondary uses of online data.” Martin Sept. 26 Report ¶
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`9(a). She contends that certain uses of Google search profile data for the purpose of returning
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`personalized advertising would constitute a “non-contextual, secondary” data use that would
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`violate users’ privacy expectations. Id. ¶¶ 19, 20. These contentions have never before been
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`made by Plaintiffs, whether through their experts, allegations in DOJ Plaintiffs’ Amended
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`Complaint, or interrogatory responses.
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`4 Dr. Tucker also responded to the Colorado Plaintiffs’ expert.
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`5 Dr. Martin also responds to Google’s economist Dr. Kevin Murphy in paragraphs 35-38 of her
`report. See Ex. C. The rebuttal is grouped together with, and contains the same analysis as, her
`response to Dr. Tucker. It is untimely for all of the same reasons.
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`5
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure Rule 26(a)(2) requires a party to make its expert
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`disclosures “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
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`A party may not rely on witnesses not disclosed in accordance with Rule 26(a)(2) “unless the
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`failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1).
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`Rule 26(a)(2) anticipates a two-step process for expert disclosures. Rebuttal reports are
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`limited to expert testimony “intended solely to contradict or rebut evidence on the same subject
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`matter” identified by another disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii) (emphasis added).
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`When authorized by the court, parties may also file a “sur-rebuttal” or “reply” report. Ordinarily,
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`because the expert disclosure process contemplates a narrowing of issues, parties may not
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`designate a new expert at the reply stage. Lopez v. Travelers Home & Marine Ins. Co., 2020 WL
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`13490513, at *3 (D. Colo. June 19, 2020) (“[I]f expert B rebuts expert A, expert A will be able to
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`address the defects in expert B’s testimony”); see Ford Motor Co. v. Versata Software, Inc.,
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`2018 WL 5306637, at *5 (E.D. Mich. Feb. 8, 2018) (reasoning parties should not be able “to
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`secretly prepare rebuttal experts whose work would not be subject to a direct response from an
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`opposing expert”).6
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`That narrowing of the issues is what the parties and the Court contemplated here. As
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`described by DOJ Plaintiffs, the purpose of the third round was to afford the parties “the chance
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`to serve a reply in support of the opening report.” ECF 70 at 4 (emphasis added). And the Court
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`6 Since plaintiffs usually bear the burden of proof and the party with the burden of proof on an
`issue addresses the matter in its initial disclosure, plaintiffs’ expert disclosures are generally
`aimed at proving the elements of their claim. U.S. Bank, N.A. v. Glogowski L. Firm, PLLC, 339
`F.R.D. 579, 581 (W.D. Wash. 2021). Accordingly, if a plaintiff’s designated “rebuttal” expert
`opines for the first time on a topic “essential to proving [their] case-in-chief,” their opinions are
`not proper rebuttal. People v. Kinder Morgan Energy Partners, L.P., 159 F. Supp. 3d 1182,
`1192 (S.D. Cal. 2016).
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`6
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 7 of 10
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`observed that it expected the third round would allow the parties to “sharpen” the issues and lines
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`of inquiry regarding the opinions previously disclosed. See ECF 88 at 28.
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`Responsive reports that are, in fact, “untimely and improperly disclosed initial expert
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`report[s] in violation of Rule 26(a)(2)” must be excluded unless the violation was “substantially
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`justified or harmless.” Blake v. Securitas Sec. Servs., Inc., 292 F.R.D. 15, 19 (D.D.C. 2013).
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`The disruption resulting from the untimely disclosure of experts is not harmless. See Kinder
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`Morgan, 159 F. Supp. 3d at 1193 (holding that plaintiff’s late disclosure was “not harmless when
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`[the “rebuttal” expert] should have been disclosed as an initial expert, which would have given
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`[defendant’s] experts months to prepare rebuttal reports”); see also Antoine v. J.P. Morgan
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`Chase Bank, 2009 WL 5842054, at *3 (D.D.C. Aug. 13, 2009) (emphasizing that untimely
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`disclosures undercut the opposing party’s ability to make strategic decisions and may result in
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`additional litigation costs). And a party cannot cure the prejudice resulting from their untimely
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`expert disclosure by offering the opposing party a chance to depose the new expert as “some sort
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`of concession or compromise.” Lytes v. D.C. Water & Sewer Auth., 2007 WL 9718949, at *2
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`(D.D.C. May 9, 2007).
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`ARGUMENT
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`Under the guise of a “reply” report, DOJ Plaintiffs introduced a new expert and advanced
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`a new theory in support of their case-in-chief that they failed to timely disclose. This tactic
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`violates both the letter and the spirit of the CMO and the Federal Rules of Civil Procedure.
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`Dr. Martin’s report offers the never-before-disclosed theory that certain uses of data
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`would comprise a “secondary, non-contextual use” and thus allegedly harm consumers by
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`violating their privacy expectations. This report pertains to new issues that should have been
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`disclosed in the opening round of reports; indeed, it does not even properly respond to Dr.
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`7
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 8 of 10
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`Tucker’s rebuttal of DOJ Plaintiffs’ experts’ opening round reports (the only allowed purpose for
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`reply reports). Parties may not subvert the expert disclosure process by secretly preparing and
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`strategically designating new “rebuttal” experts during the final round of expert disclosures.
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`Lopez, 2020 WL 13490513, at *2 (“[N]either the Scheduling Order nor the Federal Rules of
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`Civil Procedure contemplate sur-rebuttal expert witnesses.”); see also Williams v. Aviles, 2022
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`WL 2643559, at *4 (D.D.C. July 8, 2022) (excluding expert where the party made a “strategic
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`choice” that gave rise to the late disclosure).
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`Plaintiffs’ untimely disclosure contravenes the CMO, as well as the requirements of Rule
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`26(a). Accordingly, Plaintiffs must demonstrate their violation of was “substantially justified” or
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`“harmless” to evade the “self-executing sanction” of Rule 37(c)(1). Williams v. Aviles, 2022 WL
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`2643559, at *3.
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`Plaintiffs have not provided any explanation, much less a “substantial justification,” for
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`failing to timely designate a privacy expert to support their privacy arguments. The Court should
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`exclude the Martin Report on this basis alone. See Blake, 292 F.R.D. at 19 (“Plaintiff has never
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`argued that [the] report could be viewed as an excusably late initial expert report, and,
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`consequently, he has not shown that his failure to timely and properly disclose the testimony
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`‘was substantially justified or harmless.’”).
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`Exclusion is also appropriate because the untimely disclosure resulted from, at best, DOJ
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`Plaintiffs’ “lack of diligence.” Hajjar-Nejad v. George Washington Univ., 2012 WL 13168550,
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`at *3 (D.D.C. Nov. 13, 2012). The Martin Report does not rely on any information that was not
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`available when DOJ Plaintiffs filed their initial and rebuttal expert disclosures, and it was not
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`unforeseeable that DOJ Plaintiffs would rely on expert testimony to support its argument that,
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`notwithstanding Google’s data privacy controls that allow users to control how their data is
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 9 of 10
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`collected and used, consumers are somehow harmed by Google’s privacy practices.7 See Kinder
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`Morgan, 159 F. Supp. 3d at 1193 (excluding the plaintiff’s “rebuttal” expert because the expert
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`opined on topics “essential to proving the [plaintiff’s] case-in-chief” that the plaintiff should
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`have expected to prove by introducing such expert testimony and noting plaintiff’s designation
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`of the expert as “rebuttal” was “disingenuous, at best”). “[T]he trial court is under no
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`obligation . . . to rescue a party from its own lack of diligence,” Williams, 2022 WL 2643559, at
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`*4, and there is no reason the Court should do so here.
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`Because DOJ Plaintiffs’ failure to timely disclose Dr. Martin is neither substantially
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`justified nor harmless, the appropriate remedy is exclusion. The parties have gone back and
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`forth over several months with multiple rounds of expert reports spanning thousands of pages,
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`and are now in the midst of expert depositions on a tight time schedule in the period leading up
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`to summary judgment and Daubert motions. Untimely disclosed expert reports under this
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`schedule are highly prejudicial and surely are not harmless. Moreover, any lesser sanction would
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`reward DOJ Plaintiffs for their attempt to sandbag Google at the eleventh hour with a “reply”
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`report that should have been disclosed many months ago.
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`CONCLUSION
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`For the foregoing reasons, Dr. Martin’s expert report should be struck.
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`Dated: October 10, 2022
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`Respectfully submitted,
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` WILLIAMS & CONNOLLY LLP
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`By: /s/ John E. Schmidtlein
`John E. Schmidtlein (D.C. Bar No. 441261)
`Benjamin M. Greenblum (D.C. Bar No. 979786)
`Colette T. Connor (D.C. Bar No. 991533)
`680 Maine Avenue, SW
`Washington, DC 20024
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`7 For their part, DOJ Plaintiffs would not suffer any prejudice from exclusion of Dr. Martin’s
`opinions because their timely-disclosed experts have offered opinions on privacy.
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`Case 1:20-cv-03010-APM Document 398 Filed 10/10/22 Page 10 of 10
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`Tel: 202-434-5000
`jschmidtlein@wc.com
`bgreenblum@wc.com
`cconnor@wc.com
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`WILSON SONSINI GOODRICH & ROSATI P.C.
` Susan A. Creighton (D.C. Bar No. 978486)
`Franklin M. Rubinstein (D.C. Bar No. 476674)
`1700 K Street, NW
`Washington, DC 20006
`Tel: 202-973-8800
`screighton@wsgr.com
`frubinstein@wsgr.com
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`ROPES & GRAY LLP
` Mark S. Popofsky (D.C. Bar No. 454213)
` 2099 Pennsylvania Avenue, NW
` Washington, DC 20006
` Tel: 202-508-4624
` Mark.Popofsky@ropesgray.com
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` Counsel for Defendant Google LLC
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`10
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