United States v. Google: Intent evidence in the era of smokeless antitrust guns

On August 5, 2024, a District of D.C. judge held in the United States’ case against Google that “Google is a monopolist” in the search market.[1] The Department of Justice celebrated the victory as “a historic win for the American people.”[2] Being the first decision in over two decades in a government enforcement action to hold a Big Tech company liable for antitrust violations, it has understandably drawn significant public attention.[3]

Attorneys involved in pending and future litigation against Big Tech will closely study the decision.[4] As other commenters have already noted, this decision could provide a roadmap for applying older precedent—especially the ruling in the DOJ’s case against Microsoft in the 1990s—to today’s Big Tech business practices.[5]

But it also harbors lessons for discovery. The decision drew headlines for the judge’s harsh admonition of Google’s efforts to avoid creating evidence.[6] Among other things, the judge called out Google for training employees to avoid “buzzwords” that may raise antitrust concerns.[7] The judge went so far as to state that he was “taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants.”[8] According to the court, the lack of smoking gun evidence in the case was directly attributable to Google’s employee training.[9]

These efforts to avoid “smoking gun” proof are not unique to Google. Sophisticated parties issue policies to their business units with the hope of avoiding a paper trail, just as Google did in the United States’ search market case. Plaintiffs routinely seek discovery of such training materials in antitrust cases. But if—as the court explained in the United States’ recent win against Google—intent is not an element under Section 2 of the Sherman Act, are these policies worth discovering in all cases? And if they are, do courts even permit their discovery in the face of privilege objections? This article provides an overview of where courts stand on both questions.  

Corporate lessons from Microsoft, McWane, and Dentsply, and the growth of formal antitrust compliance policies

In chastising Google for its search market practices, the court noted that “Google clearly took to heart the lessons from” a series of older antitrust cases: United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001); McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015); and United States v. Dentsply, 399 F.3d 181 (3d Cir. 2005).[10] That lesson is essentially “leave no trace.”

In all three cases, employees and executives made statements in written or oral communications that would make even the most lenient antitrust enforcer raise an eyebrow. In Microsoft, an internal email stated: “[We] need a way to push these guys [i.e., Apple] and [threatening to cancel Mac Office] is the only one that seems to make them move.”[11] Another Microsoft email was quoted as saying “Apple should be using [Internet Explorer] everywhere and if they don't do it, then we can use Office as a club.”[12] In McWane, the court cited testimony from company executives as leaving “little doubt” that the challenged practice was for the purpose of preventing a rival from entering the market.[13] Among other things, an executive stated that they developed the challenged practice to prevent a potential competitor from “reach[ing] any critical market mass.”[14] And in Dentsply, the court cited manager statements that their distribution model was designed to “block competitive distribution points” and that the objective was “don’t . . . give your end user, the customer, meaning a laboratory and/or a dentist, a choice” as “clear expressions of a plan to maintain monopolistic power.”[15]

All three companies under investigation were found in violation of the antitrust laws.[16] Practitioners took notice. For example, a 2008 version of the publication “Antitrust Litigation Best Practices” uses the Microsoft case as a study on the dangers that problematic communications may pose in antitrust litigation.[17] It then suggests avoiding “damaging communications becoming a part of antitrust litigation” by “training and educating appropriate personnel about the basic ‘dos and don'ts’ in light of applicable antitrust law.”[18] Practitioners advised companies to use “real-life examples from actual cases or the companies’ own files” to teach employees the dangers of using “certain buzzwords” that have raised concerns from antitrust enforcers and plaintiffs’ counsel.[19]

Google heeded such advice and successfully used its antitrust compliance program to avoid creating any “smoking gun” proof.[20] It is not alone. As mentioned, various publications after Microsoft recommended that companies train employees to avoid language that arouses antitrust suspicion.[21] Companies routinely provide written “policies, guidelines, training materials, and communications that concern compliance with the federal or state antitrust or competition laws.”[22]

Why bother discovering antitrust compliance policies if intent is not an element of a section 2 claim?

Plaintiffs in the Google search market case asked the court to make a finding of “anticompetitive intent” based on Google’s “systemic destruction of documents,” its “flagrant misuse of the attorney-client privilege,” and its directions to “its employees to avoid using certain antitrust buzzwords in their communications.”[23] The plaintiffs cited—among other things—corporate compliance documents as evidence of these practices.[24] Despite being “taken aback” by Google’s efforts to avoid a paper trail, the court declined to make a finding of anticompetitive intent.[25] It did so because it had already concluded that Google’s practices have anticompetitive effects in a relevant market.[26]

But that is not always the case. Although “anticompetitive intent is not an element of a Section 2 violation,” it remains relevant to helping the court understand the effects of an accused monopolist’s conduct.[27] For example, in Microsoft, the court relied upon evidence from a Microsoft executive who stated a desire for “Intel to stop helping Sun create Java Multimedia APIs, especially ones that run well . . . on Windows,” to confirm the anticompetitive effect of Microsoft’s threats to Intel that it would only stop supporting a competing chipmaker if Intel stopped supporting the development of a cross-platform Java.[28] And in McWane, the Eleventh Circuit explained that testimony from McWane executives that the challenged business practices were a deliberate plan to prevent a competitor from emerging as a legitimate threat in the market “could reasonably help the Commission draw the inference that the witnessed price behavior was the (intended) result” of McWane’s challenged program.[29] As the Supreme Court noted long ago, “[t]he history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts . . . because knowledge of intent may help the court to interpret facts and to predict consequences.”[30]

As the Google decision shows, corporate compliance documents may harbor evidence of anticompetitive intent. Google created an “Antitrust Basics for Search Team” presentation for its employees that directed them “to ‘[a]void references to “markets,” or “market share” or “dominance,”’ ‘[a]void discussions of “scale” and “network effects,”’ and ‘[a]void metaphors involving wars or sports, winning or losing.’”[31] In another document, Google instructed its “employees not to ‘define markets and estimate shares’ and to ‘[a]ssume every document you generate . . . will be seen by regulators.’”[32] The court noted that this training and these policies “rather effectively” helped Google avoid creating the type of “smoking gun” proof that played major parts in the Microsoft, McWane, and Dentsply decisions.[33] In essence, the court explained, corporate policies aimed at minimizing evidence useful in an antitrust investigation is itself evidence of an intent to violate the antitrust laws.

In sum, even when the only claims at issue are Section 2 monopolization claims, intent evidence matters. Documents evidencing intent—such as corporate compliance documents—are therefore relevant to the claims and defenses.

Privilege disputes over corporate antitrust policy documents

Given their relevance, companies trying to keep their antitrust compliance documents out of litigation must resort to asserting privileges. “Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged.”[34] The Circuits vary on the scope of this privilege, with some holding that it applies to any legal advice and others holding that it only narrowly applies to legal advice from counsel that reveals client confidences.[35] Thus, whether a party may shield antitrust compliance documents under the attorney-client privilege depends on the character of the documents and Circuit in which the party’s case is pending.

For many antitrust compliance documents, this Circuit split does not affect the outcome because such documents “are often merely a compendium of policies and rules, which by definition neither reveal client confidences nor constitute the giving of legal advice and thus are outside the scope of the attorney-client privilege, whether viewed broadly or narrowly.”[36] Examples include portions of documents that give an overview or summary of competition laws, list penalties for violating competition laws, articulate employees’ compliance obligations, warn about gray areas, and explain corporate antitrust policies.[37]

Compliance documents with hypotheticals can potentially create a closer question for courts. On one hand, courts are unlikely to view compliance documents that are “unsolicited, creative efforts of enterprising lawyers, drawing on their own knowledge of the industry derived from other engagements with other clients” as responses to requests for legal advice.[38] Such documents would not fall within the attorney client privilege’s scope regardless of whether the applicable Circuit law took a narrow or broad view of whether the privilege only attaches when the communication contains client confidences.

On the other hand, courts may consider compliance documents “compiled with specific situations in mind and crafted to deal with the ramifications of various courses of conduct” as created in response to requests for legal advice.[39] In most circuits, the key question becomes whether the documents reveal client confidences.[40] A presentation given to a handful of company executives that describes the application of antitrust laws to some of the company’s specific business practices may enjoy privilege to the extent the business practices discussed are confidential.[41] Documents that instead provide hypotheticals based on an attorney’s “accumulated knowledge and understanding of antitrust law in [given market]” are not subject to the attorney client privilege.[42] Even if the hypotheticals are based on past experience of the company whose documents are at issue—Circuits taking a narrow view of the attorney client privilege’s scope will not apply the privilege if the facts in the hypothetical are fictionalized to remove client confidences.[43]

Some Circuits may nevertheless decide that such hypotheticals lacking client confidences warrant attorney client privilege protection.[44] That appears untested thus far. The decisions that have addressed privilege claims in the context of antitrust compliance documents are in circuits that have either adopted the narrow view or not clearly taken a position.[45]

The application of privilege to antitrust compliance documents ultimately depends on the documents’ contents. This will require in camera review in some cases.[46]

Conclusion

The recent Google decision underscores the ongoing relevance of intent evidence in antitrust litigation, even as companies increasingly adopt sophisticated compliance policies to avoid creating “smoking gun” proof. While these policies may successfully minimize damaging communications, they can become valuable evidence of anticompetitive intent. As courts continue to grapple with the discoverability and admissibility of such documents, litigants must navigate a complex landscape of varying circuit interpretations regarding attorney-client privilege. As the antitrust landscape evolves—particularly in the tech sector—the treatment of these compliance documents will remain a critical consideration for both plaintiffs and defendants in future litigation.

Marcus "Hill" Brakefield is an Associate in Washington, D.C.

Footnotes

[1] United States v. Google, No. 20-cv-3010, 2024 WL 3647498, at *3 (D.D.C. Aug. 5, 2024).
[2] Press Release, U.S. Department of Justice Office of Public Affairs, Justice Department Statements on the U.S. District Court for the District of Columbia's Decision in U.S. v Google, DOJ Office of Public Affairs (Aug. 5, 2024), https://www.justice.gov/opa/pr/justice-department-statements-us-district-court-district-columbias-decision-us-v-google.
[3] See David McCabe, ‘Google Is a Monopolist,’ Judge Rules in Landmark Antitrust Case, New York Times (Aug. 5, 2024), https://www.nytimes.com/2024/08/05/technology/google-antitrust-ruling.html.
[4] See id. (“The ruling is a harsh verdict on the rise of giant technology companies that have used their roots in the internet to influence the way we shop . . . . It is likely to influence other government antitrust lawsuits against Google, Apple, Amazon and Meta, the owner of Facebook, Instagram and Whatsapp.”).
[5] Matthew Perlman, 4 Takeaways from Landmark Google Search Ruling, Law360 (Aug. 6, 2024), https://www.law360.com/articles/1867101.
[6] Bryan Koenig, Google ‘May Not Be So Lucky’ Next Time over Chat Deletions, Law360 (Aug. 7, 2024), https://www.law360.com/articles/1867128/google-may-not-be-so-lucky-next-time-over-chat-deletions.
[7] Id.; Google, 2024 WL 3647498, at *134.
[8] Id.; Google, 2024 WL 3647498, at *134.
[9] Google, 2024 WL 3647498, at *151.
[10] Id. at *134.
[11] United States v. Microsoft, 253 F.3d 34, 73 (D.C. Cir. 2001).
[12] Id.
[13] McWane, Inc. v. FTC, 783 F.3d 840 (11th Cir. 2015).
[14] Id.
[15] United States v. Dentsply, 399 F.3d 181, 189–90 (3d Cir. 2005).
[16] Microsoft, 253 F.3d at 74 (holding that Microsoft’s agreement for Apple to use Microsoft’s Internet Explorer as the default web browser on Apple computers in exchange for Microsoft continuing to release its Office software suite on Apple computers was exclusionary conduct in violation of § 2 of the Sherman Act.); McWane, 783 F.3d at 842 (upholding the Federal Trade Commission’s ruling that McWane’s conduct violated Section 5 of the Federal Trade Commission Act); Dentsply, 399 F.3d at 184–85 (holding that Dentsply’s “policy that discouraged its dealers from adding competitors' teeth to their lines of products” violates Section 2 of the Sherman Act).
[17] Gianluca Morello, Observations and Tips for Antitrust Litigation, Antitrust Litigation Best Practices, 2008 WL 5939810, at * 3–4 (2008). To be sure, attorneys were advising clients before Microsoft to use compliance programs to prevent employees from creating evidence that might breed antitrust problems. See, e.g., Howard Adler, Jr. & Sharon J. Devine, How to Avoid Antitrust Death by Document, 10 No. 2 ACCA Docket 30, 31–33 (1992) (offering advice “for practitioners and clients concerned about antitrust compliance,” including suggestions to remove from employees’ vocabularies “guilt complex words,” such as “please destroy after reading”; “power words,” such as “dominate” or “leverage”; “planning and intent words”; “words defining markets or market shares”; and “loose words about competition and prices”). The need for more urgency in corporate compliance, however, increased after the Government’s historic victory in its case against Microsoft.
[18] Morello, 2008 WL 5939810, at * 5.
[19] Antitrust Enforcement and Compliance: A Global Perspective, Mayer Brown LLP (Feb. 2009), https://www.mayerbrown.com/public_docs/Handouts.pdf.
[20] See Google, 2024 WL 3647498, at *134 (“Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create ‘bad’ evidence.”).
[21] See supra notes 17–19 and accompanying text.
[22] In re Loc. TV Advert. Antitrust Litig., No. 18-6785, 2023 WL 5956851, at *1 (N.D. Ill. July 28, 2023).
[23] Google, 2024 WL 3647498, at *133.
[24] See id. (quoting a Google employee training document for its “Communicate with Care” initiative and an employee presentation titled “Antitrust Basics for Search Team”).
[25] Id. at *134.
[26] See id. (“Given that the court already has concluded that Google's exclusive dealing agreements have anticompetitive effects in two relevant markets, it is unnecessary to consider intent evidence to further “understand” that conduct.”).
[27] Id.; see also LePage’s Inc. v. 3M, 324 F.3d 141, 163 (3d Cir. 2003) (“The Supreme Court has made clear that intent is relevant to proving monopolization.”).
[28] Microsoft, 253 F.3d at 77.
[29] McWane, 783 F.3d at 840.
[30] Chi. Bd. of Trade v. United States, 246 U.S. 231, 238 (1918).
[31] Google, 2024 WL 3647498, at *133.
[32] Id.
[33] Id. at *134.
[34] Fisher v. United States, 425 U.S. 391, 403 (1976).
[35] In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407, 430 n.20 (N.D. Ill. 2006) (Sulfuric Acid I).
[36] Id. at 430.
[37] See id. at 431 (holding that the following portions of an employer’s manual are not privileged: “the Presidents' Message To Employees, the Table Of Contents, and the statements under the categorical headings, Purpose Of The Manual, Foreign Competition Laws, Compliance Obligations And The Designated Compliance Officer, Attempts By Others, Grey Area Conduct, and Policy,” “adumbrations of Canadian, United States and European competition laws,” a “Schedule Of Penalties,” and an “Index Of Examples” that “briefly states the topic of each of the 34 hypotheticals”).
[38] Id. at 432.
[39] Id.
[40] TV Advert., 2023 WL 5956851, at *17.
[41] In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1996 WL 5180, at *2 (N.D. Ill. Jan. 3, 1996) (holding that a “presentation describing the application of the antitrust laws to specific aspects of [defendant’s] business,” which was prepared by an in-house attorney and given to seven of defendant’s executives, “is privileged as it provides legal advice and reveals client confidences regarding certain of [defendant’s] business practices”).
[42] In re Sulfuric Acid Antitrust Litig., 432 F. Supp. 2d 794, 797 (N.D. Ill. 2006) (Sulfuric Acid II).
[43] See id. (noting that if the attorney creating hypotheticals from previous transactions involving the client “admittedly altered the information he received from [the client], then that information-the purported client confidence-is not revealed in the hypothetical”).
[44] See Sulfuric Acid I, 235 F.R.D. at 430 n.20 (“Some courts have held that any legal advice is privileged.”). But see TV Advert., 2023 WL 5956851, at *10 (“Any expansion of the privilege untethered to a client confidence appears to lack acceptance under Supreme Court.”).
[45] See TV Advert., 2023 WL 5956851 (recommending that the court grant plaintiffs’ motion to compel production of antitrust compliance documents, and relying upon Seventh Circuit precedent to reject the proposition that the attorney-client privilege covers legal advice absent client confidences); In re Domestic Drywall Antitrust Litig., No. 13–MD–2437, 2014 WL 5090032, at *4 (E.D. Pa. Oct. 9, 2014) (“Furthermore, the case most analogous to this matter, Sulfuric Acid, was decided in the Seventh Circuit, which adheres to the Third Circuit's view that privilege applies to communications from attorney to client if they reveal client confidences or provide legal advice.”); Sulfuric Acid II, 432 F. Supp. 2d at 797 (applying Seventh Circuit law and holding that an antitrust compliance manual that did not reveal client confidences was not privileged); In re Diisocyanates Antitrust Litig., No. 18-1001, 2024 WL 3412049, at *3 (W.D. Pa. March 28, 2024) (applying Third Circuit precedent and granting motion to compel production of defendant’s “Antitrust Training” PowerPoint because it “does not convey any privileged confidences and instead is essentially a generalized reference or instructional guide akin to a business policy considered to be guidance for [defendant’s] use”); Brand Name Prescription Drugs, 1996 WL 5180, at *2 (applying Seventh Circuit rule that “attorney-client privilege protects from discovery documents which reflect communications made in confidence by the client” to a privilege dispute over antitrust training materials); In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000, 2017 WL 9807442, at *6 (N.D. Ala. Aug. 31, 2017) (holding that “the Antitrust Compliance document is privileged because it reflects a ‘confidential communication[ ] between an attorney and his client relating to a legal matter for which the client sought professional advice,’” but not addressing the Circuit split over the scope of the attorney-client privilege).
[46] See, e.g., In re: Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 125 n.2 (3d Cir. 1986) (stating that “in camera review is frequently the only way to resolve whether in fact the privilege asserted applies”).