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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`UNITED STATES, et al., )
`)
` Plaintiffs, )
`v. ) No. 1:23-cv-00108-LMB-JFA
`)
`GOOGLE LLC, )
`)
`Defendant. )
`
`PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO GOOGLE’S EMERGENCY
`MOTION FOR DISCOVERY RELIEF
`Through its emergency motion, Google seeks an order from this Court preemptively
`excluding “any use” at the remedies trial of a voluntary de bene esse deposition of a French
`national unless Google is permitted to examine the witness for 3.5 hours of the witness’ total 4
`hours of available time. Google’s motion is contrary to the parties’ standing agreement to split
`deposition time equally when both sides notice the deposition of a third-party witness. Having
`illegally excluded nearly all its competitors from the publisher ad server market, Google now
`seeks to silence the chief executive officer of one of the few publisher ad server providers that
`remains, Arnaud Créput of Equativ. ECF No. 1410 at 63, 75.1
`Mr. Créput is a French national residing in France whose deposition testimony was relied
`upon by the Court in its liability opinion and whom both sides identified as a trial witness for the
`remedies trial.2 Mr. Créput is beyond the Court’s subpoena jurisdiction and will likely be
`unavailable to testify in person at the remedies trial, just as he was during the liability phase.
`
`1 In its April 17, 2025 opinion, the Court identified Equativ as one of two “primary competitors
`in the open-web publisher ad server space” and found Google’s publisher ad server monopoly
`caused “many once-large rival ad servers [to] either le[ave] the ad serving business entirely” or
`turn “to compete in channels other than open-web display advertising.” ECF No. 1410 at 63, 75.
`2 To efficiently use the discovery period, the parties agreed to exchange preliminary witness lists
`on May 30, with a supplemental list exchanged on June 6.
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`Thus, the four hours Mr. Créput has volunteered to testify at a deposition will likely be the only
`testimony he will give in this remedies phase, and it should be sufficient to afford both sides a
`fair opportunity to examine him on issues relevant to remedies. Plaintiffs have in no way sought
`to limit Mr. Créput’s time and are merely working with what is available to both parties. The
`Court should reject Google’s request to take nearly all of that time for itself—denying Plaintiffs
`all but a de minimis opportunity to take testimony—because it has no basis in law or notions of
`fundamental fairness.
`Google fails to support its extraordinary request to deny Plaintiffs an equal opportunity to
`examine this witness. Google’s motion omits the full context of the parties’ dispute and fails to
`cite, let alone engage with, the applicable federal rules. The Court should reject the false choice
`Google has posed: either Plaintiffs be denied time to examine Mr. Créput or his testimony be
`excluded before it is even offered. No such relief is warranted, on an emergency basis or
`otherwise, and the parties should proceed with Mr. Créput’s deposition as they are for all other
`cross-noticed non-party depositions, with each side using half of the available time to examine
`the witness.
`BACKGROUND
`Mr. Créput is no stranger to Google or this litigation. He is a foreign national, based in
`France, where his company, Equativ, is headquartered. During the liability phase, Mr. Créput
`voluntarily sat for a deposition that lasted less than 5 hours on the record. That deposition
`touched on the range of issues then before the Court: market definition, Google’s market power,
`Google’s decade-long campaign of exclusionary conduct, and competitive effects. Google
`questioned Mr. Créput on those broad subjects for under two hours. Because Mr. Créput was
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`unavailable to testify live at trial, as he was outside the subpoena power of the Court, his
`deposition testimony was accepted into evidence. Trial Tr. 9/13 PM at 62:8-93:25.
`Mr. Créput’s knowledge and experience remain relevant to this remedies phase. Both
`parties included Mr. Créput on their May 30 preliminary witness list, and Mr. Créput is one of
`only three non-party witnesses on Google’s amended witness list. In light of the compressed
`discovery schedule, Plaintiffs proactively conferred with counsel for third-party witnesses
`(including Mr. Créput) on potential deposition dates. Mr. Créput “rearrange[d] his meetings at
`significant inconvenience to make himself available for 4 hours” to sit for a voluntary deposition
`while he is in Spain on a business trip. Ex. 1, June 4, 2025 Email from A. Aryankalayil to
`L. Hibbler. To compel Mr. Créput to sit for additional time, Plaintiffs or Google would have
`needed to seek the assistance of French authorities via the Hague Evidence Convention,
`3 which
`Plaintiffs believe is unnecessary given the narrow scope of the issues in the remedies phase.
`Once Mr. Créput returns to France, the French blocking statute becomes an additional barrier to
`securing his deposition testimony in this matter.4 Accordingly, when Plaintiffs disclosed their
`
`3 Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil or
`Commercial Matters (the “Hague Convention”). Under the Hague Convention, depositions in
`France can be taken through three mechanisms: a Letter of Request to local judicial authorities,
`or, if voluntary, before diplomatic or consular officers, or before a court-appointed commissioner.
`Depositions of French citizens in France require prior permission from the French Central
`Authority. See U.S. Department of State, Judicial Assistance Country Information, France,
`https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-
`Information/France.html.
`4 The French blocking statute generally precludes individuals from sitting for even a voluntary
`deposition in France for the purpose of providing evidence in connection with a foreign judicial
`proceeding without adhering to the procedures outlined in the Hague Evidence Convention. Law
`concerning the Communication of Economic, Commercial, Industrial, Financial or Technical
`Documents or Information, Law No. 80-538, 1980 Journal Officiel de la République Française
`[J.O.] 1799, Art. 1 bis (July 16, 1980). (“Subject to treaties or international agreements and to
`currently applicable laws and regulations, it is prohibited for any person to request, seek or
`disclose, in writing, orally, or in any other form, documents or information of an economic,
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`May 30 preliminary witness list, Plaintiffs also specifically informed Google that Mr. Créput was
`willing to sit for another voluntary de bene esse deposition on “June 11, 2025 (remote, with time
`limits).” Ex. 2, May 30, 2025 Email from D. Geiger to E. Spevack. Although Google also listed
`Mr. Créput on its preliminary witness list, it appears Google took no steps to secure a deposition
`of Mr. Créput—via the Hague Evidence Convention or otherwise. Instead, Google relied entirely
`on Plaintiffs’ efforts to secure Mr. Créput’s testimony. Indeed, beyond asking Mr. Créput’s
`counsel for additional time, Plaintiffs are not aware of Google taking any steps at all to secure his
`testimony.5
`ARGUMENT
`Google’s emergency motion fails on both the facts and the law for multiple reasons.
`First, Google concedes that as a French national located abroad, Mr. Créput is “beyond
`the jurisdiction of this Court.” ECF No. 1462 at 6. But having recognized that Mr. Créput is
`beyond the scope of Rules 30 and 45 of the Federal Rules of Civil Procedure, Google’s brief
`proceeds as if all of the elements of a typical Federal Rules deposition, including Rule 30(d)(1)’s
`provisions regarding the maximum duration of a deposition, apply—but only to Google’s benefit.
`Thus, Google’s motion seeks to turn a maximum into a minimum and use that as a basis for
`
`commercial, industrial, financial or technical nature directed toward establishing evidence in
`view of foreign judicial or administrative proceedings or in relation thereto.” (unofficial
`translation)). France maintains that the Hague Convention constitutes the only permitted method
`for obtaining evidence in a foreign civil proceeding. See, e.g., Christopher X/MAAF , French
`Supreme Court, Criminal Section, December 12, 2007, n°07-83.228 (holding that a lawyer had
`committed a criminal offense by seeking to obtain information from a French witness for use as
`evidence in U.S. proceedings without complying with the requirements of the Hague
`Convention).
`5 Plaintiffs, on the other hand, arranged the logistics of Mr. Créput testifying at a U.S. embassy to
`comply with Spanish restrictions on testimony taken for the benefit of foreign courts.
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`requiring 3.5 hours of record time out of the total four hours for which the witness is available.
`“Fair play” requires the parties to split that time equally, not to give Google almost 90% of it.
`Rule 28(b) authorizes depositions in foreign countries even if they may differ
`substantially in format from a traditional Rule 30 deposition. For example, Rule 28(b) does not
`require “a verbatim transcript” of depositions or that depositions be “taken under oath.” Fed. R.
`Civ. P. 28(b)(4). And prior testimony from an unavailable witness like Mr. Créput is admissible
`so long as it was given at a “lawful deposition,” under the laws of the country where the
`deponent was located (not Rule 30), and the opposing party had “an opportunity and similar
`motive to develop it by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1).
`Accordingly, courts regularly admit into evidence even depositions that proceed via written
`question and response. See, e.g., United States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988) (“[A]
`deposition taken abroad pursuant to foreign law, but in conformity with Rule 28, would appear to
`be taken ‘in compliance with law’ for purposes of the former testimony exception to the rule
`against hearsay, Fed. R. Evid. 804(b)(1).”); FTC v. Qualcomm Inc., 2018 U.S. Dist. LEXIS
`209869, at *14 (N.D. Cal. Dec. 12, 2018) (“[E]ven though LGE did not provide testimony orally,
`LGE’s written responses constitute deposition testimony for purposes of FRE 804(b)(1).”).
`Plaintiffs are prepared to proceed with Mr. Créput’s deposition using nearly all of the
`procedural protections available in a Federal Rules deposition. Google will have a full
`opportunity to examine Mr. Créput, under oath, and to obtain and use a verbatim transcript of
`that testimony, just like any other witness. The only departure from the Federal Rules is that both
`Google and Plaintiffs will each have two hours to examine Mr. Créput, rather than the 3.5 hours
`of record time each side might otherwise have in a domestic, cross-noticed deposition. Google
`will have the same amount of time as Plaintiffs to ask questions of Mr. Créput, whom Google
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`identified on its own witness list. Google does not and cannot claim—especially ex ante—that it
`will not have an “opportunity” to examine the witness. Mr. Créput’s testimony from the proposed
`4-hour remote deposition, with time split equally, should clearly be admissible. See United States
`v. Lentz, 282 F Supp. 2d 399, 424 (E.D. Va. 2002) (deposition testimony admissible where the
`defendant had an “opportunity to cross examine” witness at the deposition); Wellin v. Farace,
`2023 U.S. Dist. LEXIS 64982, at *22 (D.S.C. Apr. 12, 2023) (denying defendants’ motion to
`exclude deposition testimony where they had thirty minutes to ask questions because “courts
`applying [Rule 804(b)(1)] have found that a cross examination need not be lengthy to constitute
`an ‘opportunity’ under the Rule”); Wright & Miller, 30B Fed. Prac. & Proc. Evid. § 6974 (2025
`ed.) (“Application of the term [opportunity] is typically straightforward: either the party was
`present and allowed to question the witness at the earlier proceeding or not.”); cf. United States v.
`Cohen, 2012 U.S. Dist. LEXIS 11627, at *11 (C.D. Ill. Jan. 31, 2012) (finding a lack of
`“opportunity” to examine the witness where “[t]he presiding judge did not ask any of the
`approved 39 questions” and instead “asked no questions” at all (emphasis added)).
`Second, while Google asserts that proceeding with a time-limited deposition of
`Mr. Créput would be fundamentally unfair, it is Google’s requested relief—taking 90% or more
`of Mr. Créput’s time for itself—that w ould be unfair. The planned deposition is a de bene esse
`deposition, where both sides seek to preserve trial testimony, recognizing Mr. Créput is a foreign
`national outside the jurisdiction of the Court and therefore likely unavailable for trial, just as he
`was during the liability phase.6 Plaintiffs have agreed to split deposition time equally when both
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`6 Neither of the cases cited by Google are analogous for this reason. Perrot v. Kelly, 2023 WL
`11873009, at *3 (D. Mass. Oct. 27, 2023), involved a domestic deposition where the plaintiff’s
`questioning was limited to “introductory topics” and constituted only 16 out of the 79 transcript
`pages before the witness walked out (20 minutes of time); Mathes v. Mid-Century Ins. Co., 2008
`
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`sides notice a deposition of the same person, and if Mr. Créput testified in person at the remedies
`trial, it is unlikely his examination would be longer than the four hours he has agreed to sit for a
`deposition. By contrast, Google’s assertion that it should be entitled to three and a half hours of
`deposition record time would be unfairly prejudicial to Plaintiffs, as that likely would be nearly
`all of the deposition time available after accounting for reasonable breaks. Yet Google asserts
`that if it cannot monopolize Mr. Créput’s limited deposition time, then the Court should be
`barred from hearing any testimony from him at all. There is no basis for such an extreme, one-
`sided outcome.
`Third, the Court need not reach Google’s challenge to the admissibility of Mr. Créput’s
`testimony at this juncture, especially on an emergency basis. The deposition has not taken place,
`and therefore all of Google’s misguided claims of unfairness are premature at best. In its brief,
`Google does not even explain why its allotted two hours is insufficient.7 Moreover, if Google
`believes it has good cause to seek additional deposition time with Mr. Créput, it may do so
`through other available means, namely seeking to compel Mr. Créput’s testimony by means of a
`Letter of Request pursuant to the Hague Evidence Convention. To date, Google has taken no
`steps to do so. Google should not be permitted to assume for itself almost all of the time
`Plaintiffs secured for Mr. Créput’s voluntary deposition without taking any steps to secure the
`additional deposition time that Google claims it needs.
`
`WL 222716, at *1 (E.D. Mo. Jan. 25, 2008) (domestic deposition abruptly cut off during cross-
`examination).
`7 Moreover, given that the Court will conduct a bench trial on remedies, “[a]ny arguments about
`whether th[ere] was sufficient time to develop [] testimony now go to the testimony’s weight,
`rather than its admissibility.” Wellin, 2023 U.S. Dist. LEXIS 64982, at *23.
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`CONCLUSION
`For the reasons above, Plaintiffs request the Court deny Google’s emergency motion in
`full.
`
`Dated: June 9, 2025
`
`Respectfully submitted,
`
`ERIK S. SIEBERT
`United States Attorney
`
`/s/ Gerard Mene
`GERARD MENE
`Assistant U.S. Attorney
`2100 Jamieson Avenue
`Alexandria, VA 22314
`Telephone: (703) 299-3777
`Facsimile: (703) 299-3983
`Email: Gerard.Mene@usdoj.gov
`
`/s/ Julia Tarver Wood
`JULIA TARVER WOOD
`DAVID A. GEIGER
`MATTHEW R. HUPPERT
`DAVID M. TESLICKO
`MICHAEL E. WOLIN
`
`United States Department of Justice
`Antitrust Division
`450 Fifth Street NW, Suite 7100
`Washington, DC 20530
`Telephone: (202) 307-0077
`Fax: (202) 616-8544
`Email: Julia.Tarver.Wood@usdoj.gov
`
`Attorne
`ys for the United States
`
`JASON S. MIYARES
`Attorney General of Virginia
`
`/s/ Tyler T. Henry
`TYLER T. HENRY
`Assistant Attorney General
`
`Office of the Attorney General of Virginia
`202 North Ninth Street
`Richmond, VA 23219
`Telephone: (804) 692-0485
`Facsimile: (804) 786-0122
`Email: thenry@oag.state.va.us
`
`Attorneys for the Commonwealth of
`Virginia and local counsel for the
`States of Arizona, California,
`Colorado, Connecticut, Illinois,
`Michigan, Minnesota, Nebraska, New
`Hampshire, New Jersey, New York,
`North Carolina, Rhode Island,
`Tennessee, Washington, and West
`Virginia
`
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