Rumble, Inc. v. Google LLC

Background

Rumble asserted one claim under Section 2 of the Sherman Act, alleging that Google used Android agreements to preinstall YouTube, give it a prominent location, and make it non-removable on certain smartphones, thereby harming competition in the online video-platform market. Rumble sought materials from a separate Justice Department antitrust case involving Google, including trial and deposition transcripts, exhibits, demonstratives, and expert reports.

The court had previously found Rumble’s original requests overbroad and denied the motion to compel those requests, while allowing Rumble to submit narrower requests. Rumble then sought two categories of materials: (1) transcripts and related materials for Google witnesses who testified in the Justice Department case and could testify in this case; and (2) evidence concerning Android default-placement agreements, their negotiation and planning, and their effects on users and competition.

Legal standard

Under Federal Rule of Civil Procedure 26, discovery may concern nonprivileged information relevant to a claim or defense and proportional to the needs of the case. The requesting party initially must show relevance; the opposing party must show why discovery should not be allowed and support its objections.

The court explained that Rumble’s antitrust claim concerns whether Google maintained monopoly power through exclusionary conduct rather than through competition on the merits. The court also recognized that the Justice Department case involved general search markets, while Rumble’s case involved the online video-platform market. Evidence relevant to one market was therefore not automatically relevant to the other.

Rulings on Category (1)

Google agreed to produce unredacted trial transcripts for Dr. Pandu Nanak, Dr. Kevin Murphy, Jim Kolotouros, and Adrienne McCallister, who testified in the Justice Department case and were among Google’s disclosures or experts in this case. Rumble’s request for those materials was denied as moot.

Rumble’s request for materials concerning any future Google expert who also testified in the Justice Department case was denied without prejudice. The court stated that Rumble could file a new discovery letter after meeting and conferring with Google if Google disclosed such an expert, and that any new request would depend on relevance and proportionality.

The court found Rumble’s broader request for expert deposition transcripts untimely because the original requests focused on trial materials. It nevertheless granted in part the request for deposition testimony and related exhibits to the extent the material had been designated as evidence at trial and was therefore part of the trial transcript. The court denied the request for other deposition testimony from all expert witnesses.

Google was required to produce exhibits and demonstratives used with expert testimony at trial. Redaction was allowed for third-party information only if the third party had asked that the information be sealed in the Justice Department case. Otherwise, Google had to follow this case’s stipulated protective order for a nonparty’s confidential information. The court summarized the Category (1) ruling as granted in part and denied in part.

Rulings on Category (2)

The court granted Rumble’s requests for materials cited in paragraphs 779–821, 822–831, and 832–862 of the Justice Department’s proposed findings of fact. Those materials concerned, among other things, how Google’s Mobile Application Distribution Agreements and Revenue Sharing Agreements contributed to exclusivity, default placement, negotiations involving Verizon, and the distribution of competing applications.

The court denied the request for materials cited in paragraphs 863–866, which concerned Google’s agreements with browser developers. Rumble did not show why that evidence was important to its case, which focused on Android agreements.

The court granted the request for materials cited in paragraphs 867–943 concerning the effects of defaults on users, default distribution, consumer behavior, and competition. It denied the request for paragraphs 944–964 because that evidence concerned foreclosure of the general-search market, and Rumble did not explain how it related to foreclosure in the online-video-platform market.

The court granted the requests for materials cited in paragraphs 1089, 1312, 1324, and 1326. These materials concerned Google’s response to possible competition, revenue from preinstalled applications including YouTube, consumer views about removing the Google Search widget, and manufacturers’ and carriers’ preferences concerning application placement. The court denied the request for paragraph 1319, which concerned a different agreement between Google and Apple, because Rumble did not show the importance of that evidence to its Android-focused case.

The court also granted Rumble’s request solely as to the Michael Whinston trial demonstratives specifically identified in Rumble’s letter. Google was required to produce those demonstratives with redactions removed from its confidential information.

Disposition

Judge Haywood Gilliam ordered Google to produce the specified Category (1) and Category (2) materials and the identified Whinston demonstratives. The court stated that the overall request to compel production was granted in part and denied in part. It also stated that third-party confidential information could be redacted only when the third party had requested sealing in the Justice Department case.