Case 1:20-cv-03010-APM Document 769 Filed 11/08/23 Page 1 of 10

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

United States of America, et al.,Plaintiffs,v.

Case No. 1:20-cv-03010-APM
HON. AMIT P. MEHTA

Google LLC,
Defendant.

State of Colorado, et al.,Plaintiffs,v.

Case No. 1:20-cv-03715-APM
HON. AMIT P. MEHTA

Google LLC,
Defendant.

DEFENDANT GOOGLE LLC’S RESPONSE TO UNITED STATES PLAINTIFFS’SUBMISSION REGARDING THE PUBLIC POSTING OF JX0024 AND JX0033

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Google respectfully submits the following response to the DOJ Plaintiffs’ Submission
Regarding the Public Posting of JX0024 and JX0033 (ECF No. 759), which seeks to unseal
several current provisions of the Information Services Agreement (ISA) between Google andApple.
Notably, the DOJ Plaintiffs do not contend that the disclosure of these commerciallysensitive provisions is necessary to facilitate an open court examination of any of the remaining
witnesses scheduled to testify at trial. Nor could they make such an argument, given that thewitnesses familiar with the ISA have already been examined about its terms without any need to
publish the precise language at issue, and without the DOJ Plaintiffs seeking or securingpermission in advance of the examination to disclose these particular terms.
The DOJ Plaintiffs’ submission instead suggests that there is some incremental benefit toposting on the Internet the particular language negotiated by the parties to the agreement, alongwith the open court testimony and other documents that are already publicly accessible. TheDOJ Plaintiffs have not demonstrated that the public’s interest in access to these proceedings
supports the additional disclosure of the particular contractual language at issue, in addition to allof the other formerly confidential information that has entered the public domain. And in allevents, any such interest in public access is outweighed by the strength of Google’s and third
party Apple’s interests in the confidentiality of the provisions and the possibility of prejudice
resulting from disclosure. United States v. Hubbard, 650 F.2d 293, 320-21 (D.C. Cir. 1980).
As Google has previously indicated, further disclosure of the precise terms of the ISAwould unreasonably undermine Google’s competitive standing in relation to both competitorsand other counterparties. See, e.g., Google’s Oct. 3, 2023 Memo. Regarding the Confidentialityof the Testimony of Apple Employees (ECF No. 727) at 1-3. Allowing competitors access to the1Case 1:20-cv-03010-APM Document 769 Filed 11/08/23 Page 3 of 10particular provisions that Google and Apple have negotiated in a confidential commercial
agreement would give those competitors a one-sided advantage in renegotiating their own
confidential agreements with Apple and preparing their own proposals to provide the services
that Google currently offers under the ISA. Aug. 7, 2023 Declaration of Elizabeth Daly (ECFNo. 740-4) (“Daly Decl.”) at ¶ 5 (addressing the commercial sensitivity of the 2016 ISAAmendment); see, e.g., Oct. 2, 2023 Trial Tr. at 3500:9-3501:9 (testimony of Microsoft CEO
Satya Nadella) (confirming in response to questions regarding Microsoft’s efforts “to get default
positions on mobile devices” that “the one that we tried and continue to try, quite frankly, is theApple default … and we’ve had a series of dialogues with them over the years on it”).
Moreover, disclosure of the terms that Google and Apple have reached in their current agreement
would affect Google’s future negotiations with browser developers and other counterparties
whose agreements reflect a range of different compromises based on the partners’ own
objectives. Daly Decl. at ¶ 6.
Although the DOJ Plaintiffs’ submission is predicated in large part on the observationthat some of the terms in question have been addressed to some degree in open court, the precise
scope and terms of the agreements have not been disclosed and the more generalized access thathas already been afforded to the public cuts against further disclosure rather than in favor of it.
That is particularly true here because the precise language agreed upon by Google and Apple isof greatest interest to sophisticated businesspeople and attorneys who negotiate these kinds ofcontracts. In other words, the competitive harm of disclosure increases materially when it
involves the specific bespoke terms of a confidential agreement, in addition to the witness
testimony about those terms that is already public as a consequence of this trial.

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Consistent with the Court’s guidance and Google’s commitment to public access to theproceedings, Google did not seek to seal any portion of the recent testimony regarding the ISA
by witnesses such as Joan Braddi, Sundar Pichai, or Professor Michael Whinston. That approachreflected a reasonable balancing of the Hubbard factors by simultaneously maximizing publicaccess to the proceedings and shielding Google to some extent from the unjustified competitive
harm that would result from publishing the precise terms of the agreements. See Oct. 4, 2023
Trial Tr. at 4368:4-14 (denying a number of requests to seal following a line-by-line review oftranscripts, but granting a request “that specific deal terms” in the Google-Apple ISA “be kept
under seal” because if disclosed they could create a “competitive disadvantage for Google andany future negotiations with potential partners”). There is no basis for the DOJ Plaintiffs toretroactively upend this balance and exploit Google’s willingness to conduct its examinations
about competitively sensitive provisions in open court by using that transparency to harm
Google’s ability to engage in ordinary commercial negotiations going forward.
I.

JX0024 (the 2014 JCA)A.

Sections 1.3 and 1.4

The sections of JX0024 (the 2014 JCA) that DOJ seeks to unseal remain in effect today.
After evaluating the Hubbard factors, Google notified the DOJ Plaintiffs that it does not seek toseal the historical fact that Apple negotiated the option to select a different default search engine
in three countries specified in Section 1.3 of the 2014 JCA. Rather, Google only seeks to seal
what the DOJ Plaintiffs have characterized as an additional provision “describ[ing] exclusions
for individual countries if certain conditions are met.” DOJ Br. at 2. Disclosure of this provision
would harm Google’s competitive standing by informing competitors in certain countries of thestandards that do (and do not) apply to determining any such “exclusions.” And disclosure3

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would also affect future negotiations with other counterparties, whose agreements differ in thisrespect and others. See Daly Decl. at ¶¶ 5-6.
The DOJ Plaintiffs’ assertion that open court testimony in this case has “already publiclyconfirmed the crux” of this paragraph demonstrates that there is little or no marginal benefit todisclosing the precise terms, which would only serve to undermine Google’s competitivestanding. Furthermore, the disclosure of this term by DOJ during Ms. Braddi’s examination
occurred without any advance notice to Google, notwithstanding Plaintiffs’ obligation to notify
Google of their “intention to publicly disclose information previously identified as confidential
information during the discovery phase.” Aug. 15, 2023 Order (ECF No. 647) at ¶ 1. If the DOJ
Plaintiffs disagreed with the redactions to the 2014 JCA that Google provided pursuant to thisprocess, they should have raised the issue with Google and, if necessary, the Court rather thaneliciting testimony about what they now attempt to characterize as the “crux” or “essence” of thesealed provision. DOJ’s decision to disregard the Court’s order and Google’s expressly statedconfidentiality interests cannot be a basis for disclosing the provision in haec verba.1
II.

JX0033 (the 2016 ISA Amendment)
A.

Section 1(a), Section 1(c), and the Fourth Paragraph of Section 4

Google opposes the DOJ Plaintiffs’ request to unseal the precise language of the second
paragraph of Section 1(a), which the parties and the Court addressed in advance of Mr. Cue’s

1

To be clear, Google does not oppose the unsealing of the portions of Section 1.3 of the 2014
JCA described in the excerpts of Eduardo Cue’s testimony cited by the DOJ Plaintiffs. See DOJ
Br. at 2-3 (citing Trial Tr. 2477:11-2478:8 and Trial Tr. 2579:12-17). Google’s request is limited
to the dates in Section 1.3 and the particular language of Section 1.4. See Ex. C to DOJ’s Br.
(ECF 759-3).

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testimony on September 26. Following review of the parties’ submissions on the issue,2 theCourt addressed the sealing of certain provisions of the ISA, including Section 1(a). Based on
the Court’s guidance, e.g., Sept. 26, 2023 Trial Tr. at 2430:12-2431:23, Google agreed to unsealthe entirety of the first paragraph of Section 1(a) and certain defined terms in that paragraph.
With respect to the second paragraph of Section 1(a), however, the Court observed that “[t]hisparticular term … is the kind of commercially sensitive term that ought to be discussed in closed
session and not be made part of the public record in whatever documents get released.” Id. at
2431:18-23. Google has applied that guidance in seeking to seal the second paragraph of Section
1(a) and three other paragraphs that present the same degree of commercial sensitivity insofar as
they incorporate language relating toId. at 2430:22-25.
The DOJ Plaintiffs’ contention that counsel has quoted or paraphrased short excerpts ofthe 2016 ISA Amendment does not support their assertion that the identified provisions ought tobe unsealed. As discussed, Google has made extensive efforts to keep the courtroom open
throughout its examinations, even when addressing highly sensitive agreements. That isindicative of the Hubbard balancing that has occurred on an ongoing basis, and does not meanthat an entire provision—or series of provisions—should “be made part of the public record inwhatever documents get released.” Id. at 2431:18-23.3

2E.g., Google’s Sept. 26, 2023 Memo. Regarding the Confidentiality of JX0033, UPX0586,UPX0588, and UPX0594 (ECF No. 718).
3This principle is not unique to a provision of the 2016 ISA Amendment, as there have been anumber of instances throughout trial where public testimony has been facilitated by Google’s
counsel referring on cross-examination to a document or portion of a document that a non-partycontends should remain sealed and has remained sealed.
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Even setting aside the specific phrases quoted by the DOJ Plaintiffs in their submission,
the paragraphs at issue are commercially sensitive because they contain bespoke definitions of
the kinds of terms that are individually negotiated with other browser developers as well as
Android OEMs and carriers. More specifically, the parties to agreements with Google negotiate
which search queries are subject to revenue share payments, and the definitions of the terms thatthe DOJ Plaintiffs seek to unseal——arenot uniform across agreements. Disclosure of these terms would unjustifiably impact Google’s
individualized negotiations while giving competitors who enter similar agreements anunwarranted insight into the terms that Google and Apple agreed on. See Daly Decl. at ¶¶ 5-6.
B.

The First Sentence of Section 2

The DOJ Plaintiffs seek to unseal the first sentence of Section 2 of the 2016 ISA
Amendment on the basis that their expert witness testified about it in open court. See DOJ Br. at7-8. Again, however, that testimony occurred without any advance notice to Google. In yet
another instance of Plaintiffs failing to comply with the August 15, 2023 Order (ECF No. 647),
the DOJ Plaintiffs included reference to Section 2 of the ISA in the demonstratives used withProfessor Whinston even though both Google and Apple had expressly indicated that theprovision should remain redacted, and even though Plaintiffs had never followed up on that
position or raised the provision with the Court during the parties’ prior exchange regarding the2016 ISA Amendment.
After Apple’s counsel immediately objected in writing to the unauthorized disclosure,DOJ replied “that Plaintiffs may reveal high-level descriptions of [the] agreements” and “havenot revealed the specific language of the agreement.” Oct. 16, 2023 Email from Sarah Bartels.
Having drawn a distinction between “high-level descriptions” and “the specific language of theagreement” with regard to the very provision at issue, the DOJ Plaintiffs should not be permitted
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to use their own impermissible disclosure of a “high-level description” to justify unsealing theprecise language of the contract. While there can be no justification for DOJ’s unauthorized
disclosure during Professor Whinston’s direct examination, revealing the exact terms of aprovision to competitors and other counterparties does create a greater risk of competitive harm,
which is precisely why this provision (and the others addressed in the DOJ Plaintiffs’submission) should remain sealed.
C.

Second Paragraph of Section 4

Finally, the DOJ Plaintiffs seek to unseal a specific provision of Section 4 of the 2016
ISA Amendment that they do not contend has been disclosed in any form in the public testimony
to date. Google has explained that the provision is commercially sensitive, see Google’s Oct. 3,2023 Memo. Regarding the Confidentiality of the Testimony of Apple Employees (ECF No.
727) at 2, and even DOJ has previously indicated that “we don’t intend to elicit that fact in opencourt” and “did not propose unredacting that part of the ISA.” Sept. 26, 2022 Trial Tr. at 2442:13, 22-24.
The DOJ Plaintiffs’ brief obscures the issue by asserting that the language in question
merely “shows that Google and Apple share revenue, a fact well-known to the public and central
to this case.” DOJ Br. at 8. That is why neither Google nor Apple seeks to seal the first sentenceof Section 4 (with the exception of the revenue share percentage itself, which no one seeks tounseal). See ECF No. 759-4 at 5 (“Effective September 1, 2016 Google will pay Apple [aredacted percentage] of its Net Ad Revenue for the remainder of the Term.”). The provisions
that follow, however, set forth the manner of calculating the revenue share owed, and like therevenue share percentage itself, they are a commercially sensitive part of the financial terms ofan agreement currently in effect. Sept. 26, 2023 Trial Tr. at 2442:1-37

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The financial terms of Google’s agreements with Apple and the other counterparties
referenced throughout this case are individually negotiated and therefore differ from each other.
See Daly Decl. ¶¶ 6, 8. A provision such as the second paragraph of Section 4 is a paradigmatic
example of a contractual term that should be sealed to prevent harm to the parties’ competitive
standing. See, e.g., In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (sealing
information such as the “pricing terms, royalty rates, and guaranteed minimum payment terms”
of a license agreement because, among other things, these terms are information that “plainlyfalls within the definition of ‘trade secrets’”). Google’s ability to engage in standard businessnegotiations would be significantly impaired if portions of the financial terms of its current
agreement with Apple were unsealed, just as they would be if its confidential agreements withother partners were made public. See Daly Decl. ¶ 6; United States v. Anthem Inc., 2017 WL
8893757, at *2-3 (D.D.C. Jan. 18, 2017) (sealing trial materials where “providers and customers
would have an unfair advantage when negotiating contracts with [the defendant]” if public
disclosure occurred). And competitors who seek to displace Google as the default search engine
in Safari would obviously receive an unjustified advantage by knowing the financial terms
Google has negotiated with Apple, including those that the DOJ Plaintiffs now seek to unseal.
Daly Decl. ¶ 6; Oct. 2, 2023 Trial Tr. at 3656:8-13 (testimony of Microsoft CEO Satya Nadella)(indicating that Microsoft will keep trying to persuade Apple to switch the default on Safari from
Google to Bing).

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Dated: November 8, 2023

Respectfully submitted,
WILLIAMS & CONNOLLY LLP
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
Tel: 202-434-5000
jschmidtlein@wc.com
bgreenblum@wc.com
cconnor@wc.com
WILSON SONSINI GOODRICH & ROSATI P.C.
Susan A. Creighton (D.C. Bar No. 978486)
Franklin M. Rubinstein (D.C. Bar No. 476674)
Wendy Huang Waszmer (D.C. Bar No. 1631078)
1700 K Street, NW
Washington, DC 20006
Tel: 202-973-8800
screighton@wsgr.com
frubinstein@wsgr.com
wwaszmer@wsgr.com
ROPES & GRAY LLPMark S. Popofsky (D.C. Bar No. 454213)
2099 Pennsylvania Avenue, NW
Washington, DC 20006
Tel: 202-508-4624
Mark.Popofsky@ropesgray.com
Matthew McGinnis (admitted pro hac vice)
Prudential Tower
800 Boylston StreetBoston, MA 02199
Tel: 617-951-7703
Matthew.McGinnis@ropesgray.com
Counsel for Defendant Google LLC

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