Google's Antitrust Case Underscores Tough Sell for 'Cooling-Off' Discovery Requests
Google wants consultants for a multistate antitrust investigation to have a "cooling-off" period before they are able to seek new work with one of the company's competitors out of fear for trade secrets. But it may be a tough sell.
November 06, 2019 at 09:30 AM
4 minute read
Last week, Google filed a petition in the Texas state court of Travis County for a protective order against Texas Attorney General Ken Paxton, who is leading a multistate antitrust investigation against the company.
According the New York Times, the petition largely takes issue with the safeguards put in place around how Google's sensitive business documents—including whitepapers and internal planning memos—would be shared with outside consultants on the investigation.
The company reportedly asked to be notified in advance before the attorney general's office shared its confidential documents with third parties. It also called for a "cooling-off" period that would keep those consultants from transitioning immediately to a new job with one of Google's competitors.
So, will Google get everything on its list? While protective orders in and of themselves aren't entirely out of the ordinary, the cooling-off period may be a tough sell given both the unusual nature of the request and the logistic difficulties it could pose to utilizing consultants and their expertise .
"You are not normally worried about your other side's experts stealing and monetizing the information that is provided to them for the analysis," said Eric Mandel, a consultant with the IT service management company Driven, Inc.
Complicating matters further is the résumé of the consultants that Paxton has lined up, one of which the Times identified as a former lawyer for Microsoft with experience representing clients in other antitrust cases against Google. The other, meanwhile, has logged time in the employ of a Russian search engine called Yandex.
For Google, the concern may be less about the past and more about what could happen if those consultants reengage those working relationships at some point in the future.
Joseph Tate, counsel and director of e-discovery and practice advisory services at Cozen O'Connor, said that while consultants in these types of cases will likely never be able to get their hands on documents that can be taken home, the sensitive information they are privy to can become lodged in their minds.
He said similar concerns around the use of consultants often come up in the intellectual property litigation space, where those experts will often agree to a prosecution bar that would prevent them from taking information gleaned from a case to file a competing patent.
As for whether or not a court would apply similar consideration Google's request for a cooling-off period, that remains to be seen.
"I don't think its [an] overreach though, frankly. If I was sitting in Google's shoes I [would] want to protect this information and they have every right to do so," Tate said.
However, that doesn't mean that getting there is a slam dunk. There may be other considerations that a court would have to take into account, even if it decided to consider a cooling-off period.
Megan McKnight, an attorney and founder of Tealstone Law, alluded to the tension between the need to protect Google's trade secrets and allowing the prosecution to make use of a consultant's expertise.
She pointed out there's no telling how long a case like this may last, which when stacked on top of a potential cooling-off period could mean that consultants have to wait quite some time before they are able to take their next gig.
"The consultants may decide not to continue without clarity on what the limitations are that will be imposed on them and how long that is," McKnight said.
But even if Google's efforts to secure a cooling-off period are ultimately unsuccessful, it may still accomplish its objective with regards to protecting its trade secrets given the public nature of the petition filed in Texas.
"Even if it's denied, everybody is on notice that Google is very concerned about this so that will help encourage people to maintain strict compliance with the [protective] order that is ultimately entered," McKnight said.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250