Case 1:23-cv-00108-LMB-JFA Document 452-1 Filed 09/20/23 Page 1 of 29 PageID# 6741
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`UNITED STATES, 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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`No. 1:23-cv-00108-LMB-JFA
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`GOOGLE LLC’S MEMORANDUM IN SUPPORT OF ITS
`MOTION TO COMPEL RESPONSES TO VARIOUS DISCOVERY REQUESTS
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`Plaintiff United States (“Plaintiff”) has cumulatively, across thirteen interrogatories,
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`twelve requests for admission, and two requests for production, stymied and stonewalled
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`Google’s ability to discover relevant, non-privileged facts and documents regarding important
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`issues in the case covering four categories—each of which the court has recognized as relevant
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`and discoverable. See Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 21:15–23; Sept. 1, 2023 Hr’g Tr. (Dkt.
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`398) 31:23–33:21, 80:5–23. These categories are as follows:
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`1. The factual basis for Plaintiff’s alleged damages, stemming from the “over $300 million”
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`Federal Agency Advertisers (“FAAs”) collectively spent on open web display advertising
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`as stated in Plaintiff’s initial disclosures. Google seeks updated initial disclosures which
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`comply with Rule 26(a)(1)(A)(iii);
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`the applicable discovery requests are Google’s
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`Interrogatories Nos. 4, 9, 14, and 17, and Google’s Request for Production (“RFP”) No.
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`12. Appendix at 7–17, 28.
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`1
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`

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`2. The factual information or admissions regarding whether the United States and the FAAs
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`on whose behalf DOJ is seeking damages are “direct purchasers” under Illinois Brick.
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`These requests are Google’s Requests for Admission (“RFAs”) Nos. 1–3. Appendix at
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`1–3.
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`3. The factual basis for DOJ’s allegations in the Complaint of Google’s alleged share of the
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`alleged “publisher ad server market,” “ad exchange market,” and “market for advertiser
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`ad networks for open web display advertising.” Am. Compl. (Dkt. 120) ¶¶ 285, 292, 301.
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`These requests are Google’s Interrogatories Nos. 18, 19, and 20. Appendix at 18–22.
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`4. The communications exchanged between DOJ and third parties, including the European
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`Commission (“EC”), regarding the subject matter of this case through August 25, 2023,
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`which are topics this Court has determined Google may depose Plaintiff about under Rule
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`30(b)(6). These requests are Google’s Interrogatory No. 21 and RFP 44. Appendix at
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`22–23, 29.
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`As to the first two categories, the Amended Complaint seeks some undisclosed amount of
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`damages on behalf of the FAAs. Google is entitled to discovery on what damages Plaintiff is
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`seeking, and on whether such alleged damages are recoverable under Illinois Brick (i.e., whether
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`the FAAs are direct purchasers), and if so, what the categories, amounts, or transactions are that
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`underlie those alleged damages. But Plaintiff is doing everything it can to stop Google from
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`obtaining this discovery—including debating the meaning of the words “directly,” “pay,” and
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`“purchase” and refusing to provide any calculation of damages or inputs into such calculation.
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`Over the last five months, Plaintiff has contorted its objections and responses, declined to
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`provide information, and failed to answer the questions asked on these critical topics. The
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`reasons for Plaintiff’s ongoing obstruction appear clear: the discovery Google seeks will reveal
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`2
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`fundamental weaknesses in Plaintiff’s case—including that there are no recoverable damages
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`because the FAAs are not direct purchasers. Further, for some FAAs, discovery to date suggests
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`at least one FAA may not even purchase “open web display advertising” using Google ad tech
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`services and thus has no claim for damages whatsoever.1
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`Moreover, Google patiently awaited supplemental responses to many of the discovery
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`requests as Plaintiff continued to investigate and build its alleged damages case, and Google
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`served new discovery requests as Plaintiff further sought to confuse and obfuscate on simple
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`questions like: did the FAAs purchase any “open web display advertising” directly from Google,
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`and if so, can it identify such purchases. Now, at the close of fact discovery, Plaintiff’s overall
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`responses to this discovery to which Google is entitled remain woefully deficient, just as
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`Plaintiff’s initial disclosures, supplemented four times during the fact discovery period, provide
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`essentially no information about Plaintiff’s claimed damages.
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`As to categories three and four, the Court has recognized this information is relevant and
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`discoverable when ordering Plaintiff to produce a 30(b)(6) designee on the same topics; such
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`discovery is important to Google’s defenses in showing that the gerrymandered antitrust markets
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`alleged in Plaintiff’s complaint are just that and do not pass muster under antitrust law, and that
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`this suit was not brought on behalf of the FAAs.
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`Accordingly, Google respectfully requests that
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`the Court order Plaintiff to provide
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`sufficient and complete responses to Google’s discovery requests listed above within eleven days
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`of the Court’s order granting this motion, and allow the parties to use those responses for all
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`purposes as if they had been served on or before September 8, 2023. In addition, for the reasons
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`1 Ex. 1 (Owens Tr. 143:14–21) (testifying that the only programmatic display advertising vendor
`that, to the witness’s knowledge, the Navy has used, is The Trade Desk, not Google).
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`3
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`outlined in Section III.B.2., infra 22–25, Google respectfully requests that the Court overrule
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`Plaintiff’s improper objections to Google’s RFAs 4–12 and Interrogatories Nos. 22–29.
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`I.
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`BACKGROUND
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`A. Discovery on Factual Basis for Alleged Damages
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`Plaintiff brings a claim for “damages incurred by the United States,” alleging in its fifth
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`claim that “Google’s violations of the Sherman Act have caused the United States to incur
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`monetary damages, as the United States and its various agencies and departments are buyers of
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`open web display advertising.” Am. Compl. (Dkt. 120) ¶ 341. On April 3, 2023, Plaintiff served
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`its initial disclosures, stating that the FAAs “have spent over $300 million on open web display
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`advertising during the relevant time period.” Ex. 2 at 29 (4/3/23 Plaintiffs’ Initial Disclosures).
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`The initial disclosures served in April have been supplemented four times, including as recently
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`as August 11, 2023, but in none has Plaintiff disclosed “a computation of each category of
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`damages.” Fed. R. Civ. P. 26(a)(1)(A)(iii). In other words, to date, Plaintiff has not stated any
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`amount of damages it seeks, let alone any computation of those damages, and has failed to
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`comply with Rule 26(a)(1)(A)(iii).
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`To understand the factual basis for Plaintiff’s alleged damages—including, for example,
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`the transactions at issue, the dates of those transactions, the money spent on those transactions,
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`what products or services (whether “open web display advertising” or some other “ad tech
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`services”) were purchased in those transactions—Google served Interrogatories Nos. 4, 9, 14,
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`and 17, and Request for Production No. 12.2 Plaintiff has failed to provide Google with
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`sufficient responses to these requests.
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`2 Google’s Interrogatories Nos. 22, 23, 24, 25, and 26 also seek factual information underpinning
`Plaintiff’s alleged damages. Plaintiff’s responses to these interrogatories are due today. Google
`will promptly advise the Court if Plaintiff’s responses narrow the issues on which Google seeks
`the Court’s intervention.
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`4
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`In response to Google’s Interrogatory No. 14, which asks the United States to identify
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`purchases of “open web display advertising” purchased directly by the FAA from Google during
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`the Damages Period, Plaintiff stated that the FAAs “pay fees for ad tech services provided by
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`Google that facilitate the FAAs’ purchases of open web display advertising from publishers.”
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`Appendix at 15. Plaintiff has refused to supplement its response to Interrogatory 14, despite
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`Google’s repeated requests—on August 1, 3, 8, 13 and 28, 2023—that it do so because the
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`response fails to identify any purchases whatsoever, notwithstanding Plaintiff’s representation
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`that it will “make reasonable good faith efforts to identify purchases of ‘open web display
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`advertising’ purchased by the Federal Agency Advertisers from Google during the Damages
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`Period.” Id.; Ex. 3 (correspondence between M. Goodman and Plaintiff’s counsel).
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`Similarly, in response to Interrogatories 4 and 17, which ask for details about the ad tech
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`products used by the FAAs during the damages period (including things like the type of product
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`used, the amount of fees or take rate by month, the dates during which the product was used) and
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`the amounts paid by the FAA to Google or by the FAA to any advertising agency for campaigns
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`related to its damages claims, Plaintiff points Google to invoices, which often do not specify
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`what purchases, if any, are of “open web display advertising” or “ad tech services provided by
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`Google.”3 For each FAA, Plaintiff has provided long appendices citing hundreds, and for some
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`FAAs thousands, of invoices prepared by ad agencies and submitted to the FAAs for paid media
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`purchases. See Appendix at 7–11, 15–17. These invoices and reports—some of which span
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`hundreds of pages—provide little information beyond the names of vendors or subcontractors
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`(which sometimes total more than twenty-five different vendors or subcontractors) and the total
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`amount of money spent with those vendors or subcontractors for a given time period (typically
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`3 Google has not included with this motion any exemplar invoices at risk of burdening the court
`with voluminous documents, but should the Court request such examples, Google will of course
`provide them.
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`5
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`monthly).
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`Interrogatory No. 9 asks for a computation of the damages sought in the Complaint and
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`the date range for the computation—the same kind of information that DOJ is required to
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`disclose under Rule 26. Id. at 11; see Fed. R. Civ. P. 26(a)(1)(A)(iii). However, to date, and in
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`response to this interrogatory, Plaintiff has provided only the names of, in total, 90 FAA
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`employees with “relevant knowledge” of the information sought by this interrogatory. Appendix
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`at 11–15.
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`Request for Production No. 12 similarly seeks facts underpinning Plaintiff’s damages
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`claims. Id. at 28. The request seeks documents or data sufficient to show, among other things,
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`gross amounts paid for display advertising, fees paid to any ad tech providers for such
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`advertising, and the ad buying tools through which the advertising was purchased. As detailed
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`more fully below, information that Google has obtained during witness depositions of FAA
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`employees has made clear that Plaintiff has not produced certain data responsive to this request.
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`B. Discovery on Purchaser Status
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`As the Court recognized, Google is entitled to discovery on whether the United States
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`and/or its “agencies and departments” is a “buyer[] of open web display advertising” or any other
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`“ad tech services” directly from Google because, with certain narrow exceptions, only direct
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`purchasers have antitrust standing to sue for damages under the Sherman Act. See Illinois Brick
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`v. State of Illinois, 431 U.S. 720 (1977). When Google moved to dismiss the Amended
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`Complaint on grounds that Plaintiff lacks antitrust standing under Illinois Brick, the Court
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`rejected that argument because it found whether Plaintiff was a direct purchaser was a factual
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`issue. Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 11:16-17, 21:15–23. The Court went on to state:
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`I think the only argument that defendants might have down the road—which,
`again, is a fact situation—is if you all had used a real middleman, then there
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`6
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`might be a problem, or two middlemen. So, unfortunately, that will require
`discovery. But, I mean, discovery shouldn’t be that difficult. You ought to have
`the data at your hands right now. I would think probably almost a request for
`admissions and a couple of quickie interrogatories should probably flesh that out
`rather quickly.
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`Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 21:15–23.
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`Google followed up on the Court’s very good suggestion and served straightforward
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`RFAs to the United States regarding its departments’ and agencies’ alleged purchases of open
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`web display advertising from Google. Appendix at 1–6. As Judge Brinkema explained, whether
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`those departments or agencies did, in fact, make direct purchases could be fleshed out in
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`discovery “rather quickly.” Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 21:15-23. When the United States
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`refused to respond to RFA 1, which asked Plaintiff to “Admit that, during the Damages Period,
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`the Federal Agency Advertisers did not purchase ‘open web display advertising’ directly from
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`Google,” Appendix at 1, claiming (incorrectly) that it required a legal conclusion, Google moved
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`to compel. A few days later, the United States served an amended response to RFA 1. Id.; Ex. 4
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`(August 7, 2023 email from A. Teitelbaum to M. Goodman and others). The response provides
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`in pertinent part:
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`First, the United States is unaware of the extent to which Google sells “open web
`display advertising” inventory on its owned-and-operated websites but, to the
`extent it does, and to the extent the FAAs purchased such display advertising
`inventory on Google’s owned-and-operated websites, the FAA’s [sic] practice is
`for the FAAs’ Agencies to purchase such advertising from Google on the FAAs’
`behalf and for the FAA to fully reimburse the FAAs’ Agencies for those
`purchases. Accordingly, and subject
`to and without waiving the foregoing
`objections, the United States admits that it was the FAA’s [sic] practice for the
`FAA’s [sic] Agencies to purchase “open web display advertising” from Google as
`agents of the FAA, pursuant to a contractual relationship.
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`Second, to the extent that this Request For Admission No. 1 sweeps beyond the
`purchase of
`“open web display advertising”
`sold by Google on its
`owned-and-operated websites, the United States does not believe, based on the
`information currently known to it, that Google is a publisher of “open web display
`advertising.” Thus, according to the United States’ current understanding of the
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`7
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`it would not be possible for anyone to purchase “open web display
`facts,
`advertising” from Google outside of its owned-and-operated websites. On that
`basis alone, the United States admits that Federal Agency Advertisers did not
`purchase “open web display advertising” directly from Google during the
`Damages Period, outside of
`the context of Google’s owned-and-operated
`websites. For the avoidance of doubt, whether a Federal Agency Advertiser
`purchased “open web display advertising” directly from Google, subject to the
`Oxford English Dictionary definitions applicable for the purpose of this response,
`is a wholly distinct question from whether the Federal Agency Advertisers
`constitute direct purchasers of open web display advertising services under
`Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) and its progeny. As used in this
`response to this Request for Admission, the term “open web display advertising”
`does not include ad tech services that facilitate the purchase of such advertising
`from publishers.
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`Appendix at 1–2. This response does not address the request as it was asked because, as
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`discussed further below, Plaintiff decided to interpret “open web display advertising” (its own
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`manufactured term not used in the advertising industry) to make it impossible for anyone to
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`purchase open web display advertising directly from Google. Plaintiff also carved out “ad tech
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`services that facilitate the purchase of such advertising from publishers” from the response.4
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`Based on this response, Google served another set of RFAs and interrogatories seeking
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`the same type of information, but this time using the terms and phrases used by Plaintiff itself in
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`its answers to Google’s first set of RFAs so as to avoid receiving evasive, legalese responses. Id.
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`at 23–27. While Plaintiff’s responses to Google’s second set of RFAs and interrogatories 22
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`through 29 are due to be served today, Google believes, based on the objections that Plaintiff
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`served, that the responses will, as before, fail to provide the requested information.5
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`4 They do so to avoid the allegation in the Complaint that Plaintiff purchases “open web display
`advertising using Google and non-Google ad tech tools.” Am. Compl. (Dkt. 120) ¶ 278.
`5 Google has included Plaintiff’s objections to these discovery requests in the Appendix, and may
`ask the Court to consider those responses when filing our reply in support of this motion.
`Google will promptly advise the Court if Plaintiffs’ responses narrow the issues or obviate the
`need for the court intervention on those RFAs. Appendix at 23–27.
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`8
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`C. Discovery on Market Share Allegations and Monopoly Power
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`Google served Interrogatories 18, 19, and 20 in order to understand the factual basis for
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`Plaintiff’s three allegations of Google’s purported market share in the Amended Complaint. Id.
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`at 18–22. For example, Interrogatory No. 18 asks the United States to “[e]xplain if, and how,
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`you calculated that ‘Google’s share of the [alleged] publisher ad server market in the United
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`States has remained above 90% for many years’ as alleged in paragraph 285 of the Amended
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`Complaint.” Id. at 18. The request specifically asks the United States to provide the basis for
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`certain values in any calculation underlying the allegation, such as the numerator used and the
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`denominator used. Id. Google’s interrogatories 19 and 20 ask the same as to Google’s share of
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`the alleged “ad exchange market,” and alleged “market for advertiser ad networks for open web
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`display advertising.” Id. at 20–22.
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`In response, Plaintiff simply restated the allegations from the Amended Complaint and
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`referred Google to a series of files produced during the investigation phase, which purport to
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`“provide evidentiary support for this allegation.” Id. at 18–22. Plaintiff intimated that further
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`disclosures would be forthcoming during the expert discovery period. Plaintiff failed to provide
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`the information that Google actually requested, including an explanation of the calculation (if
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`any) supporting the market share allegations.
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`D. DOJ’s Communications with Third Parties
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`Google’s RFP No. 44 and Interrogatory No. 21 seek information concerning the DOJ’s
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`communications with third parties regarding the subject matter of this case through August 25,
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`2023. Id. at 22, 29. After DOJ objected to RFP 44 to the extent it sought documents post-dating
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`the filing of the Complaint, Google served Interrogatory 21 on July 26, 2023 asking DOJ to
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`identify “[f]rom the start of [its] Investigation until August 25, 2023,” “each and every
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`Communication between the Department of Justice on the one hand, and any Potential Witness
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`or the European Commission on the other hand, related to the subject matters of the Investigation
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`or of the Action.” Id. at 29.
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`Plaintiff’s response to Interrogatory 21 is deficient because it designates DOJ’s entire
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`investigative file, while also failing to identify responsive documents from other DOJ
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`productions in this case or to identify communications post-dating March 27, 2023, despite the
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`fact that the interrogatory specifically requested information through August 25 2023.
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`Id. at
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`22–23. But as recent testimony from third parties has confirmed, communications through
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`August 25, 2023 are both necessary and relevant because DOJ continued to speak and meet with
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`industry participants after March 27, 2023 to prepare its case.
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`Ex. 5 (Lambert Tr. at
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`224:20–234:24). Although DOJ indicated that its investigation and production is “ongoing,” and
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`that it would supplement its response as it identifies additional information, DOJ has yet to do so,
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`even though it appears they have continued to produce responsive communications, including as
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`recently as September 6, 2023.
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`E. The Court’s September 1, 2023 Hearing
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`On September 1, 2023, Judge Anderson held a hearing on DOJ’s Motion for a Protective
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`Order with respect to certain topics noticed in Google’s 30(b)(6) Notice to the United States.
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`Recognizing that the United States as a party to the case had an obligation to produce a 30(b)(6)
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`witness on topics relevant to a claim or defense in the case, the Court denied the United States’
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`motion and required the United States to produce a witness to testify on its behalf as to certain
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`topics. Dkt. 377; Sept. 1 Hr’g Tr. (Dkt. 398) 31:23–33:21. Several of these topics, including
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`Topic 29 (“Your involvement and communications with any third parties concerning the
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`Investigation and/or this Action”), Topic 36 (“All communications, including written, oral,
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`10
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`face-to-face, telephonic, videoconference, or otherwise with any representative of the European
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`Commission concerning the Investigation or this Action”), and Topic 39 (“Your market share
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`calculations as alleged in the Complaint for the alleged publisher ad server market, ad exchange
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`alleged market, and alleged market
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`for advertiser ad networks for open web Display
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`Advertising”), pertain to Google’s discovery requests at issue in this Motion.
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`The same day, the Court heard argument on Google’s Motion to Compel (Dkt. 304). Dkt.
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`375. Although the Court found that certain documents involving communications between the
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`FAAs and their ad agencies related to the FAAs’ online advertising purchases were protected
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`work product, the Court nevertheless instructed:
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`[T]he information [from ad agencies about their advertising purchases] itself is
`producible . . . . You’re entitled to that information. If you’re not getting it, you
`file a motion to compel. . . . [I]f you want information about how advertising is
`purchased, obtained, however it’s done, about the facts and circumstances of how
`it’s directed and those types of things, that’s information that [Google is] entitled
`to.
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`Sept. 1 Hr’g Tr. (Dkt. 398) at 80:5–23.
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`II.
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`APPLICABLE LEGAL STANDARD
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`The Federal Rules of Civil Procedure provide a broad baseline for discovery as a party is
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`entitled “to discover any material
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`that
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`is relevant
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`to any party’s claim or defense,
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`is
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`nonprivileged, and is proportional
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`to the needs of the case.”
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`BASF Plant Sci., LP v.
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`Commonwealth Sci. & Indus. Rsch. Org., 2019 WL 8108060, at *2 (E.D. Va. July 3, 2019)
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`(citing Fed. R. Civ. P. 26(b)(1)). This right to relevant discovery includes “[a]ny matter that
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`bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may
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`be in the case.” Tube-Mac Indus., Inc. v. Campbell, 2021 WL 6332354, at *1 (E.D. Va. June 10,
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`2021) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
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`It is well
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`accepted that “[t]he burden is on the person objecting to the discovery . . . to demonstrate that
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`such discovery should not be permitted.” Rhodenizer v. City of Richmond Police Dep’t, 2009
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`WL 3334744, at *3 (E.D. Va. Oct. 14, 2009).
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`Rule 36 provides that a “party may serve on any other party a written request to admit,
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`for purposes of the pending action only, the truth of any matters within the scope of Rule
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`26(b)(1) relating to: facts, the application of law to fact, or opinions about either.” Fed. R. Civ. P.
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`36(a)(1)(A). The Advisory Committee Notes make clear that the purpose of the rule is to
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`“facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to
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`narrow the issues by eliminating those that can be.” Fed. R. Civ. P. 36 advisory committee’s note
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`to 1970 amendment; see also Erie Ins. Prop. & Cas. Co. v. Johnson, 272 F.R.D. 177, 183
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`(S.D.W. Va. 2010) (purpose of requests for admission is to reduce trial time and narrow the scope
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`of issues in dispute). A party has a duty to conduct a reasonable inquiry in responding to
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`requests for admissions, and Rule 36 requires meaningful responses. Id.; see also Susko v. City
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`of Weirton, 2010 WL 1881933, at *14 (N.D.W. Va. May 7, 2010) (“Parties may not view
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`requests for admission as a mere procedural exercise requiring minimally acceptable conduct.
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`They should focus on the goal of the Rules, full and efficient discovery, not evasion and word
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`play.”) (citation omitted). Where a court determines that a response to a request for admission
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`does not comply with the requirements of Rule 36, it may order either that the matter is deemed
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`admitted or that the responding party serve an amended answer. Fed. R. Civ. P. 36(a)(6).
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`Likewise, Federal Rule of Civil Procedure 37 and Local Civil Rule 37(A) allow parties to seek a
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`court order to compel responses to interrogatories and document requests.
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`Rule 33 provides that “[a]n interrogatory may relate to any matter that may be inquired
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`into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an
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`opinion or contention that relates to fact or the application of law to fact[.]” Fed. R. Civ. P.
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`33(a)(2); Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 428 (N.D.W. Va. 2006)
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`(“parties may use interrogatories to ask questions regarding: evidence on which an opposing
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`party bases some specific contention; a position taken by a party and an explanation or defense
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`for that position with respect to how the law applies to the facts; and the legal basis for, or theory
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`behind, some specific contention.”) (citations and quotations omitted). “Under Federal Rule of
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`Civil Procedure 37, a motion to compel is proper when a party fails to answer an interrogatory,
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`and an evasive or incomplete answer must be treated as a failure to answer.” NewMarket Corp.
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`v. Innospec Inc., 2011 WL 1306008, at *3 (E.D. Va. Apr. 1, 2011) (citing Fed. R. Civ. P.
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`37(a)(3)(B), (a)(4)).
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`Rule 34 provides that “a party may serve on any other party a request within the scope of
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`Rule 26(b) to produce . . . any designated documents or electronically stored information[.]”
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`Fed. R. Civ. P. 34(a)(1)(A). “When discovery disputes arise, the burden of proof is with the
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`party objecting to the discovery to establish that the challenged production should not be
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`permitted.” Humanscale Corp. v. CompX Int’lInc., 2009 WL 5091648, at *2 (E.D. Va. Dec. 24,
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`2009) (citing Finley v. Trent, 955 F. Supp. 642, 648 (4th Cir. 1997)).
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`III.
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`ARGUMENT
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`A. Google Is Entitled to Discovery Responses Regarding The Factual Basis for
`Plaintiff’s Alleged Damages
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`1. Plaintiff’s Initial Disclosures Fail To Comply With Rule 26(a)(1)(A)(iii).
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`Plaintiff’s Initial Disclosures pertaining to damages are patently deficient under Rule
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`26(a)(1)(A)(iii). Rule 26(a)(1)(A)(iii) requires a party to disclose “a computation of each
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`category of damages claimed by the disclosing party—who must also make available . . . the
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`documents or other evidentiary material . . . on which each computation is based, including
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`materials bearing on the nature and extent of injuries suffered .
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`.
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`.
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`.”
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`Fed. R. Civ. P.
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`26(a)(1)(A)(iii). “[A] party’s Rule 26(a)(1)(A)(iii) disclosure must state the types of damages
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`that the party seeks, must contain a specific computation of each category, and must include
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`documents to support the computations.” Silicon Knights, Inc. v. Epic Games, Inc., 2012 WL
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`1596722, at *1 (E.D.N.C. May 7, 2012). Further, a party does not fulfill its Rule 26 obligation
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`by providing “‘undifferentiated financial statements; it requires a ‘computation,’ supported by
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`documents.’” Id. (quoting Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006)). If a
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`party fails to timely provide the information required under Rule 26(a) or timely supplement that
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`information under Rule 26(e), “the party is not allowed to use that information or witness to
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`supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed.
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`R. Civ. P. 37(c)(1).
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`First, Plaintiff has only disclosed that
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`the FAAs collectively spent approximately
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`$300,000,000 on “open web display advertising.” This “disclosure” is nothing of the sort: it is
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`not specific to money spent on Google products or services, but extends to any provider of “open
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`web display advertising.” It is not a lump sum damages figure, but rather a gross spend amount
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`across multiple vendors—in other words, not a computation of damages, as Rule 26 requires.
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`Advanced Training Grp. Worldwide, Inc. v. Proactive Techs. Inc, 2020 WL 4574493, at *4 (E.D.
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`Va. Aug. 7, 2020) (“where a party only discloses a lump sum or merely refers to documents from
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`which the opposing party can presume damages, the disclosing party has not met its obligation”
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`under Rule 26).
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`Second, Plaintiff does not point to any “documents or other evidentiary material,” Fed. R.
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`Civ. P. 26(a)(1)(A)(iii), supporting its claim that the FAAs spent $300 million on “open web
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`display advertising,” let alone any documents that support a computation of damages. This is
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`patently insufficient; Rule 26 requires that a plaintiff provide a “‘computation,’ supported by
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`documents.” Silicon Knights, Inc., 2012 WL 1596722, at *1 (quoting Davis, 469 F.3d at 295).
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`Third, Plaintiff has no explanation for its failure to provide a damages computation.
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`Instead, Plaintiff suggests that further explanation will be provided later on by experts. But Rule
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`26(a)(1)(A)(iii) does not have a “wait until expert discovery” safety valve. Google is entitled to
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`this information now, with the specificity that Rule 26 requires. See Albert S. Smith Co., Inc. v.
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`Motes, 2019 WL 10959830, at *1 (D. Md. May 9, 2019) (rejecting argument that its damages
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`calculation will be the subject of expert disclosure, finding the party “has a duty to provide a
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`calculation of his damages at this stage in the litigation, although it may be subject to further
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`supplementation”). The potential that Plaintiff will obtain additional information concerning
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`damages as expert discovery proceeds does not absolve Plaintiff from its Rule 26 obligations,
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`because Rule 26 requires a party to disclose, “without awaiting a discovery request,” this
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`damages computation. Fed. R. Civ. P. 26(a)(1)(A) (emphasis added); see also Dickman v.
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`Banner Life Ins. Co., 2017 WL 4342064, at *6 (D. Md. Sept. 28, 2017) (response that “the
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`question” regarding the plaintiff’s damages calculation “is ‘premature at this early stage in the
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`litigation’ is a totally inadequate response”).
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`Plaintiff’s failure to comply with Rule 26 significantly prejudices Google in its ability to
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`defend itself in a compressed discovery schedule in an extremely complex case. This Court
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`should therefore order Plaintiff to supplement
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`its Rule 26(a)(1)(A)(iii) disclosure, or risk
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`exclusion under Rule 37. See S. States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d
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`592, 597 (4th Cir. 2003) (setting forth factors courts consider when exercising their discretion to
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`remedy a Rule 26 violation, including exclusion of evidence at trial).
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`2. Google Is Entitled to Supplemental Responses Which Actually Answer Its
`Interrogatories.
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`Interrogatories 4, 9, 14, and 17 seek information regarding the factual basis for Plaintiff’s
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`alleged damages, falling “comfortably” within the scope of discoverable information relevant to
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`Plaintiff’s claims. Daniels v. Hyster-Yale Grp., Inc., 2020 WL 2334088, at *10 (E.D.N.C. May
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`11, 2020)
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`(interrogatory seeking evidentiary support
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`for party’s damages claim “falls
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`comfortably within t