Rumble, Inc. v. Google LLC

Background

Rumble brought one antitrust claim against Google under Section 2 of the Sherman Act and Sections 4 and 15 of the Clayton Act, alleging monopolization and attempted monopolization of the U.S. online video platform market. Rumble alleged that Google favored YouTube in search results, made YouTube the default online video application on Google smartphones, and used agreements with smartphone manufacturers that limited competition.

Rumble asked Google to produce documents it had provided during the previous ten years to the Department of Justice, Federal Trade Commission, Congress, the European Commission, and courts. Request for Production No. 13 sought materials concerning competition from specialized online search platforms and Google’s responses to that competition. Request for Production No. 14 sought materials concerning Google’s treatment of YouTube in online video searches. Google objected that the requests sought irrelevant documents, amounted to an overly broad search, and would impose a significant burden. Google also argued that the four-year antitrust limitations period should define the discovery cutoff.

Legal standard

The court applied Federal Rule of Civil Procedure 26(b)(1), which permits discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. The court explained that relevant information need not itself be admissible at trial. The party seeking discovery initially must show relevance; the opposing party must support objections that discovery is unduly burdensome.

Rulings on Rumble’s discovery request

The court held that Rumble was not limited to discovery directly concerning Google’s conduct toward Rumble or online video platforms. Information about the origin, background, purpose, and context of Google’s alleged anticompetitive conduct could be relevant. The court found that materials concerning specialized or “vertical” search platforms could bear on Rumble’s allegations even when the platforms involved shopping, travel, real estate, navigation, or other services.

The court granted Rumble’s request as to documents from the congressional investigation that led to the 2020 Congressional Report. The court found that the investigation concerned allegations similar to Rumble’s allegations, including Google’s treatment of YouTube and its use of default positions for its own applications. The ruling applied to both RFP Nos. 13 and 14.

The court also granted Rumble’s request as to documents from the Department of Justice and state Attorneys General investigations, the lawsuits that followed, and related discovery in those ongoing cases. The court found significant factual and legal overlap between those matters and Rumble’s antitrust claim. This ruling also applied to both RFP Nos. 13 and 14.

The court denied without prejudice Rumble’s request concerning the European Commission investigation. Although the court found the materials potentially relevant, it concluded that Rumble had not shown that obtaining them would be proportional to the needs of the case in light of Google’s concerns about prior production outside the United States and possible privilege issues.

The court denied without prejudice Rumble’s request concerning the Federal Trade Commission investigation and 2012 Staff Report because the documents were produced before the ten-year period specified in RFP Nos. 13 and 14. The court stated that Rumble could serve future requests concerning the FTC investigation if those requests complied with Rule 26(b).

Search terms and production protocol

Rumble proposed new electronically stored information search terms and a three-stage search and production schedule. The court rejected Rumble’s attempt to raise a new dispute about search terms after the parties had represented that they had agreed on an initial set of terms. The court also denied Rumble’s proposed Phased Search and Production Protocol because it would impose deadlines without allowing Google to object or requiring the parties to meet and confer.

The court granted Google’s Motion for Leave to File Reply Letter Brief. The court treated the motion as an administrative motion under the Northern District of California’s local rules and considered the parties’ additional submissions.

Discovery cutoff

The court denied Google’s request to make the four-year antitrust limitations period the discovery cutoff. Relying on the principle that the limitations period is not a rigid boundary for discovery, the court concluded that evidence of the possible creation and implementation of an anticompetitive strategy before 2017 could be relevant and discoverable if available and proportional.

Order and implementation

Magistrate Judge Lisa J. Cisneros ordered Google, within ten days of the order, to search the production databases for the congressional and Department of Justice and state Attorneys General investigations and lawsuits, along with document databases for discovery exchanged in the two specified District of Columbia cases. Google had to use the parties’ already agreed search terms and provide hit counts to Rumble’s counsel. Rumble had four days to identify documents for production. The parties had to meet and confer within seven days about any proposed changes to the search terms, and Google had to complete production no later than 45 days after the order. The order addressed discovery only; it did not decide the merits of Rumble’s antitrust claim.