D.C. Judge Grants in Part Times' Motion to Unseal Trial Exhibits in DOJ’s Case vs. Google

U.S. District Judge Amit Mehta for the District of Columbia, in a ruling Wednesday (docket 1:20-cv-03010), granted in part and denied in part the New York Times' Jan. 19 motion to unseal more than two dozen trial exhibits introduced as evidence in September’s bench trial in the case brought by DOJ and the attorneys general of 48 states (see 2309120075).

The motion had argued that the records’ disclosure was warranted under the “six-factor test” set forth in the D.C. Circuit’s 1978 decision in U.S. v. Hubbard. It contended that the records carried a strong presumption of access and that many of them contain information that is dated or has been revealed elsewhere, “diminishing any privacy interests or prejudice that would result from disclosure.”

The motion sought the disclosure of three categories of trial exhibits, said Mehta’s ruling. In the first category, the Times sought to unseal “the entirety of multiple allegedly anticompetitive contracts” between Google and several third parties, including Apple, Samsung, AT&T and Motorola, it said. Its second request was for full access to certain records produced by third-party Microsoft, including emails and contracts to which it’s a party, it said. The Times also sought access to several Apple records -- all email threads involving Apple executives, it said.

The judge has “exhaustively reviewed” all the filings and has conducted “a page-by-page and, in some cases, line-by-line review” of every disputed exhibit sought by the Times, said the ruling. He also reviewed the disputed redactions in each post-trial filing, it said: “Where necessary, the court has also carefully compared the redacted versions to the sealed, unredacted records and filings.”

His review yielded orders to disclose portions of some documents, while keeping other portions of the same documents redacted. For example, he ordered that certain terms of a 2014 joint cooperation agreement between Apple and Google remain sealed because “they constitute bespoke contract terms that, if disclosed, could disadvantage Google in negotiations with other partners.”

But the judge ordered that the “default bookmark” provision in the same contract “must be disclosed,” said the ruling. “The provision would further public understanding as to the search access points on Apple devices for which Google pays revenue share,” which is “core” to the government’s antitrust case against Google, it said: “The court discerns no substantial competitive disadvantage to Google or Apple from disclosure of this provision, at least when weighed against the interest in public access.”

The judge gave similar treatment to a series of Microsoft emails in which senior executives discuss possible collaborations with Apple and Samsung. One decade-old email contains Microsoft’s “internal thinking” about a potential deal with Apple, said the ruling. “This is an internal strategy document of a third party,” but its age “diminishes Microsoft’s competitive interests,” and should be disclosed, it said.

But another email contains nonpublic information about Microsoft’s own finances and projections, and should remain sealed, said the ruling: “These specific numbers are highly sensitive and could result in competitive disadvantage to Microsoft if disclosed.”