Case Document 2 Filed 06/01/15 Page 1 of 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK can 1m: <12? GOOGLE INC., . CASE NO.: Petitioner, CASE IN OTHER COURT: . No. (S.D. v. - Miss.) . TWENTY-FIRST CENTURY FOX, INC., NBCUNVERSAL MEDIA, and - . meow-Na 3 men 1315' Respondents. MEMORANDUM OF LAW IN SUPPORT OF GOOGLE RULE 45 MOTION TO COMPEL COMPLIANCE WITH SUBPOENA Morris J. Fodeman WILSON SONSINI GOODRICH ROSATI PC 1301 Avenue of the Americas, 40th Floor New York, NY 10019 Email: mfodeman@wsgr.com Phone: (212) 999-5800 Fax: (212) 999-5899 David H. Kramer (pro hac vice forthcoming) Michael H. Rubin (pro hac vice forthcoming) WILSON SONSINI GOODRICH ROSATI PC 650 Page Mill Road Palo Alto, CA 94304 Email: dkramer@wsgr.com Email: mrubin@wsgr.com Phone: (650) 496-9300 Fax: (650) 493-6811 Attorneys for Petitioner GOOGLE INC. Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 2 of 31 TABLE OF CONTENTS Page INTRODUCTION 1 BACKGROUND 4 A. The Subpoenaed Parties and Attorney General Hood 4 B. Google's Complaint and the Preliminary Injunction 8 C. The Subpoenaed Parties' Failure to Produce Any Information 9 ARGUMENT I. II. 11 GOOGLE'S SUBPOENAS SEEK PLAINLY RELEVANT INFORMATION REGARDING THE SUBPOENAED PARTIES' ROLE IN THE ATTORNEY GENERAL'S ILLICIT CONDUCT. 11 THE SUBPOENAED PARTIES HAVE NOT VALIDLY ASSERTED ANY PRIVILEGE 15 1. Work Product 18 2. The "First Amendment Privilege" 19 3. The "Law Enforcement Privilege" 19 4. "Common Interest Doctrine" 20 5. The Attorney Client Privilege 21 III. THE "FORM OBJECTIONS" ARE BASELESS 23 IV. 25 A CONFIDENTIALITY ORDER IS NOT APPROPRIATE CONCLUSION 25 Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 3 of 31 TABLE OF AUTHORITIES Page(s) CASES Bank of America, N.A. v. Terra Nova Insurance Co., 212 F.R.D. 166 (S.D.N.Y. 2002) 17 Bank Brussels Lambert v. Credit Lyonnaise (Suisse) S.A., 160 F.R.D. 437 (S.D.N.Y 1995) 20 Baricuatro v. Industrial Personnel & Management Services, Inc., No. 11-2777, 2013 U.S. Dist. LEXIS 96413, 2013 WL 3367137 (E.D. La. July 5, 2013) 16, 21 Blackard v. Hercules, Inc., NO. 2:12-CV-175-KS-MTP, 2014 U.S. Dist. LEXIS 75934, 2014 WL 2515197 (S.D. Miss. June 4, 2014) 23 Boca Investerings Pshp. v. United States, 31 F. Supp. 2d 9 (D.D.C. 1998) 22 Burns v. Imagine Films Entm't, Inc., 164 F.R.D. 589 (W.D.N.Y. 1996) 23 Cante v. Baker, No. 07-CV-1716 (RK), 2008 U.S. Dist. LEXIS 38091 (E.D.N.Y. May 9, 2008) 17 Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547 (S.D.N.Y. 2013) 18 Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984) 24 Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44 (S.D.N.Y. 1996) 10 Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991) 19, 20 Dinler v. City of New York (In re City of New York), 607 F.3d 923 (2d Cir. 2010) 19, 20 Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) 14 Felham Enters. (Cayman) Ltd. v. Certain Underwriters at Lloyds, No. Civ.A. 02-3588, 2004 WL 2360159 (E.D. La. Oct. 19, 2004) 22 Ferko v. NASCAR, 219 F.R.D. 403 (E.D. Tex. 2003) 20 Four Star Capital Corp. v. Nynex Corp., 183 F.R.D. 91 (S.D.N.Y. 1997) 25 Freydl v. Meringolo, No. 09 Civ. 07196 (BSJ) (KNF), 2011 U.S. Dist. LEXIS 67742 (S.D.N.Y. June 16, 2011) 23-24 Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014) 23, 24 In re Chevron Corp., 749 F. Supp. 2d 141 (S.D.N.Y. 2010) 21-22 Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 4 of 31 In re Chevron Corp., 749 F.Supp.2d 170 (S.D.N.Y. 2010) 23 In re Grand Jury Subpoenas Dated March 9, 2001, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) 21 In re Santa Fe Intl Corp., 272 F.3d 705 (5th Cir. 2001) In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) Info. Res. v. Dun & Bradstreet Corp., 999 F. Supp. 591 (S.D.N.Y. 1998) 15-16, 20 20 17, 20 Khan v. Midland Funding LLC, 956 F. Supp. 2d 515 (S.D.N.Y. 2013) 16 La. Generating, L.L.C. v. M. Union Ins. Co., No. 10-516-JJB-SCR, 2011 U.S. Dist. LEXIS 143679 (M.D. La. Dec. 14, 2011) 10 Minebea Co. v. Papst, 228 F.R.D. 13 (D.D.C. 2005) 22 NAACP v. Ala. ex rel. Patterson, 357 U.S. 449 (1958) 18-19 Nat'l Ass 'n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) 19 Sony Music Entm't Inc. v. Doe, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) 19 Three Crown Ltd. P 'ship v. Salomon Bros., No. 92-civ. 3142, 1993 U.S. Dist. LEXIS 9995 (S.D.N.Y. July 21, 1993) 17 United States v. Am. Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) 20 United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) 20 United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982) 16, 18, 22 von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987) 16 Wilson v. Thompson, 593 F. 2d 1375 (5th Cir. 1979) 13 Younger v. Harris, 401 U.S. 37 (1971) 12-13 STATUTES • Section 230 of the Communications Decency Act, 47 U.S.C. § 230 13 Miss. Code Arm. § 25-61-9(1) 16 Mississippi Public Records Act, Miss. Code Ann. § 25-61-1 et seq. 16 RULES Fed. R. Civ. P. 45 passim Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 5 of 31 MISCELLANEOUS Charles Wright & Arthur Miller, Fed. Prac. & Proc., § 2464 David M. Greenwald, Handbook for Analyzing Issues Under The AttorneyClient Privilege And The Work Product Doctrine, Jenner & Block Practice Series: Protecting Confidential Legal Information, at 355 (2011) -iv- 23 17, 22-23 Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 6 of 31 INTRODUCTION Google Inc. ("Google") respectfully seeks the assistance of this Court to compel compliance with a subpoena issued in connection with litigation in the Southern District of Mississippi, where Google sued Mississippi Attorney General Jim Hood ("AG Hood") and the court has already issued a preliminary injunction prohibiting him from violating Google's constitutional and federal statutory rights. For the past two years, AG Hood has repeatedly threatened Google, demanding it remove content from its online services that he and a group of powerful special interests deem objectionable. When Google refused his demands citing the protections of federal law, AG Hood retaliated with a vexatious 79-page Civil Investigative Demand ("CID").1 In March, with the benefit of a substantial evidentiary record, the Honorable Henry Wingate of the Southern District of Mississippi concluded there was "compelling evidence" that the Attorney General's CID was issued in "bad faith" with retaliatory intent and that there is a "substantial likelihood" that Google will prevail on its claims that the Attorney General was violating Google's First and Fourth Amendment rights. The court therefore enjoined the Attorney General from enforcing his CID, filing charges against Google, or otherwise taking further action against Google pending a final decision on its claims that he described as "substantially meritorious."2 Judge Wingate also set an expedited case schedule, allowing a very limited time for discovery. Although Google's lawsuit is against Attorney General Hood, the architects of his campaign against Google appear to be interested parties that have spent years pursuing an antiGoogle agenda, including the motion picture studios Viacom, Inc. ("Viacom"), Twenty-First 1 The document is formally titled "Administrative Subpoena" rather than "Civil Investigative Demand." It contains 141 document requests and 62 interrogatories, demanding the production of an extraordinarily broad array of information. It is so large that it includes a table of contents. 2 Declaration of Michael H. Rubin ("Rubin Decl.") ¶ 21, Exhibit ("Exh.") 53 ("PI Order"). -1- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 7 of 31 Century Fox, Inc. ("Fox"), and NBCUniversal Media, LLC ("NBC") (collectively, the "Subpoenaed Parties"). Following the defeat in 2012 of legislation they pushed called the Stop Online Piracy Act, these entities began aggressively lobbying state attorneys general to build cases against Google over what they claim was Google's indulgence of copyright infringement. Those lobbying efforts were funneled through various entities, most notably the Motion Picture Association of America (the "MPAA"), which is an industry group composed of six motion picture studios including Viacom, Fox, and NBC. A supposed consumer rights organization heavily funded by the MPAA called the Digital Citizens Alliance ("DCA") also actively participated, as did hired lobbyists at Jenner & Block ("Jenner"). These and other parties formed a large "AG Working Group" that, as widely-reported in the press, has acquired significant influence with state law enforcers, particularly with the Mississippi Attorney General.3 Documents uncovered by reporters reveal that this Working Group formulated a list of demands to be sent to Google by AG Hood and other state attorneys general, actually wrote letters to Google that AG Hood sent, dictated the timing of his investigative escalations, tried to recruit other government officials to support him, and even prepared the 79-page CID at the center of this case. As shown in one internal email, when AG Hood's demand letters did not yield the desired result, "word came down" from the lead lobbyist at Jenner "that 'the time for letter writing is over' and that 'it is time to move to actually form an investigation.'" He explained: Some subset of AGs (3-5, but Hood alone if necessary) should move toward issuing CIDs [and] [i]n terms of outreach and action by us, I think we should: a. Shore up Hood and try to get a small group ... focused on a clear timetable for CIDs[;] b. Draft the 3 See Russell Brandom, "Project Goliath: Inside Hollywood's Secret War Against Google," The Verge, Dec. 12, 2014, available at (hereafter "Brandom Article"). -2- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 8 of 31 CIDs[; and] c. Research state law to determine the best state to pursue litigation and communicate that to Hoo.d so that he can try to get the right AGs on board.4 Given this and a raft of similar communications detailed in press reports, Google subpoenaed the studios for information about behind-the-scenes maneuvering that fomented AG Hood's violations of Google's Constitutional and federal rights. The narrowly-drawn subpoenas seek information from the Subpoenaed Parties that is directly related to AG Hood's actions against Google. This includes their communications with AG Hood, communications with other attorneys general about Google, and information relating to campaign donations by the Subpoenaed Parties to the Attorney General or the Democratic Attorneys General Association ("DAGA"). To date, the Subpoenaed Parties have produced nothing. They have inexplicably delayed producing the few documents they agreed to turn over, and have objected that many of their documents, including internal notes or summaries of meetings with AG Hood, are irrelevant or protected by some unsubstantiated privilege. The relevance objections are meritless. As Judge Wingate has already held, there is substantial evidence that the Attorney General's actions against Google were undertaken in bad faith and for a retaliatory purpose. The requested documents are likely to bolster that finding by shining a light on the parties that were animating the Attorney General and other government officials. Google expects the documents will show that the Attorney General, the Subpoenaed Parties, and their lobbyists understood that his actions invaded the exclusive province of federal law. More fundamentally, the documents are likely to show that the Attorney General's investigation was intended not to uncover supposed violations of Mississippi law, but instead to 4 See Joe Mullin, "Hollywood v. Goliath: Inside the Aggressive Studio Effort to Bring Google to Heel," Ars Technica (Dec. 19, 2014), available at (hereafter "Mullin Article"). -3- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 9 of 31 coerce Google into silencing speech that Viacom, Fox, and NBC do not like (such as search results, user-generated content and advertising), in violation of Google's constitutional rights. The relevance objections cannot stand. The privilege assertions should fare no better. Each Subpoenaed Party asserts "work product protection," but none can identify any litigation they contemplated at the time the requested documents were created. They claim there is a "First Amendment privilege" shielding their activities from discovery, but they cannot explain how it applies here where they are engaged in lobbying government officials, where that lobbying is a matter of public record, and where their conduct is in no way likely to meet with government reprisal. And they assert "common and joint interest privileges" but cannot articulate any valid "interest" that creates or preserves a privilege. While some responsive documents might theoretically be subject to the attorney-client privilege, the Subpoenaed Parties have not collected or reviewed such documents, let alone provided a privilege log for them. Given the narrow window afforded for discovery in this case, Google can wait no longer. It respectfully requests that the Subpoenaed Parties be ordered to produce the documents responsive to the subpoena immediately.5 BACKGROUND A. The Subpoenaed Parties and Attorney General Hood In late 2014, the New York Times reported that lobbyists for Viacom, Fox, and NBC and others had been engaged in an extensive and secret anti-Google campaign with state attorneys general.6 Having failed to gain federal support for their positions, they hoped state officials 5 This motion is not brought in isolation. Google seeks similar orders against six different entities, five of which are represented by different lawyers at Jenner and each of which offers the same relevance and privilege objections. In the interests of judicial economy, and to avoid potential inconsistencies in fact-finding or outcomes, Google will promptly submit a motion under Rule 45(f) to transfer these motions to the Southern District of Mississippi. -4- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 10 of 31 could be more easily convinced to pressure Google to modify its online services and restrict both its own speech and the speech of its users. The studios, along with the MPAA and DCA and others, formed a self-described "AG Working Group" to approach a number of attorneys general "to build cases against Google." Id.; Rubin Decl. ¶ 26, Exh. 58 at D-000083-85.7 As shown in emails circulated amongst dozens of people in the AG Working Group, the lobbying included "high executive level" studio participation and "one-on-one meetings" between attorneys general and "member company general counsels." Id. at D-000084-85. By the fall of 2012, the Working Group had the vanguard for its anti-Google agenda in Mississippi's Attorney General, Jim Hood. Following a November 2012 meeting of state attorneys general that was convened to discuss intellectual property and prescription drug issues, AG Hood sent Google a letter suggesting steps it should take "to eliminate or significantly reduce infringing activities," and requesting Google's thoughts on altering its search results and blocking links to publicly available websites. Attorney General Hood was later clear about what would happen if Google did not "voluntarily" capitulate: [I]f you don't ... work with us to make some of these changes that we've been suggesting since November, then I'm going to call on my colleagues to issue civil investigatory demands or subpoenas .... Rubin Decl. ¶ 22, Exh. 54 at 8:8-13 (transcript from June 2013 meeting of National Association of Attorneys General). Google responded that its operations were consistent with and protected 6 Nick Wingfield and Eric Lipton, Google's Detractors take Their Fight to the States, The New York Times (Dec. 16, 2014), available at . In its reporting, the Times drew upon documents obtained through public records requests and from an industry insider in the wake of the well-publicized revelation of a cache of Sony Entertainment emails following a reported hack. All citations formatted "D-0000..." refer to Bates numbers of documents produced by AG Hood to Google in the underlying litigation. -5- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 11 of 31 by federal law, that it would continue to work to address legitimate concerns, and that the threats from the Attorney General were improper. Nevertheless, on November 19, 2013, Attorney General Hood emailed Google's general counsel attaching a draft letter reiterating demands that Google alter search results to promote "authorized" websites while downgrading others; that it remove videos from its YouTube service; and that it bar advertising from supposed "piracy" sites. The draft letter was not written by AG Hood or his staff; it was written almost entirely by the lobbyists after generating a list of "asks" with the Working Group. Compl. ¶ 55;8 Rubin Decl. ¶26, Exh. 58 at D-000082. AG Hood then privately reported to the MPAA that he had sent their letter because his "conversation with Google's General Counsel did not go well," and that there would soon be a meeting with other state attorneys general and the MPAA's representatives so "we can all discuss the next move." Rubin Decl. ¶ 27, Exh. 59 at D-000001-02 (email exchange between AG Hood—using a private Hotmail email account rather than an official one—to Vans Stevenson of the MPAA).9 In January 2014, the AG Working Group's lead lobbyist at Jenner, Tom Perrelli, met privately with the Attorney General the day before a planned discussion between Google, Mississippi Attorney General Hood, and representatives from at least 20 other states. Perrelli reported back to the Working Group on his lobbying in an internal email: 8 See Letter to Google From Mississippi's Attorney General, The New York Times (Dec. 16, 2014), available at (showing a redline version that compares the letter drafted by Jenner and the version sent by Attorney General Hood to Google); see also Rubin Dec1.1124, Exh. 56 (October 24, 2013 email from Attorney General Hood to MPAA stating "Tom [Perrelli] drafted great letter that I will send Google for agenda."). 9 See also Mullin Article (quoting email from the MPAA's Van Stevenson to the Recording Industry Association of America ("RIAA") and others in which Stevenson summarizes Hood's email). -6- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 12 of 31 I spent more time with Hood ... and, I hope, got him focused on the key issues and the asks. He really does care a great deal about piracy ... [he] wants Google to delist pirate sites and he is going to ask them to do that tomon-ow.1° The group's influence on the Attorney General did not end there. Four days before a February 2014 meeting between Google and a group of Attorneys General, AG Hood received an email from a DCA lobbyist proposing a "pre meeting" on Google and asking whether he wanted "industry folks to be at or around his pre meeting on [M]onday morning."11 At the same time, the MPAA and the Subpoenaed Parties were planning a detailed anti-Google strategy which they code named "Project Goliath." See Brandom Article (quoting Jan. 25, 2014 email from MPAA representative to representatives from Viacom, NBC, and Fox, as well as other MPAA member studios). When Google did not acquiesce in these meetings to the "asks" from Attorney General Hood and his benefactors, "word came down" from Jenner's Perrelli that "the time for letter writing was over" and it was time for AG Hood (and other attorneys general if they could be persuaded) to follow through on the threatened CIDs, which the lobbyists would prepare. See Mullin Article (quoting email from Perrelli to a collection of anti-Google interests). By late April 2014, studio representatives were discussing a "Goliath end-game." See Brandom Article (quoting Apr. 29, 2014 email from Aimee Wolfson to Leah Weil, both of Sony). 10 Mullin Article (quoting email from Jenner's Perrelli to "the group," apparently including at least the MPAA, its member movie studios and the RIAA). Perrelli clearly wanted his clients to control what AG Hood and other Attorneys General were asking Google for, and what they would accept: "The AGs are struggling with their asks. They understand that Google is likely to offer a few morsels, they know it won't be sufficient, but they are unsure how to demand more...I went over their likely asks again, but encouraged them not to commit to anything with Google in the meeting." Id. (quoting Jan. 21, 2014 email from Perrelli). 11 Exchanges Between Current and Former Mississippi Attorneys General, The New York Times (Dec. 17, 2014), p. 32 (including copy of Feb. 20, 2014 email from Mike Moore to Attorney General Hood), available at . -7- Case 1:15-mc-00150-P1 Document 2 Filed 06/01/15 Page 13 of 31 On October 27, 2014, the Attorney General sent Google the 79-page CID. AG Hood has identified the CID as having been authored by Jenner's Perrelli as well as representatives of Microsoft;12 and the lobbyists made sure to keep the studios in the loop on their progress. See Mullin Article (quoting Oct. 20, 2014 email from MPAA to studio lawyers). The hope, according to an email between the MPAA and Fox, NBC, Viacom and other studios was that "following the issuance of the CID by AG Hood ... we may be in a position for more serious discussions with Google."13 B. Google's Complaint and the Preliminary Injunction On December 19, 2014, Google filed a Complaint for Declaratory and Injunctive Relief in the Southern District of Mississippi alleging, among other things, that the Mississippi Attorney General violated Google's rights under the First, Fourth, and Fourteenth Amendments by pursuing a retaliatory and overbroad investigation aimed at silencing Google's protected speech and the speech of others. Dkt. No. 1 (Complaint), Google Inc. v. Hood, Case No. 3:14cv-00981-HTW-LRA (S.D. Miss. Dec. 19, 2014).14 Google sought a Preliminary Injunction (the "Injunction Motion") based on a substantial evidentiary record. MS Dkt. 2, 3. On March 2, 2015, Judge Wingate granted Google's motion enjoining Attorney General Hood from, among others things, enforcing the CID. Judge Wingate detailed his reasoning in a March 27 Opinion. Rubin Decl. ¶ 21, Exh. 53. He held that Google had demonstrated a "substantial likelihood" that AG Hood "has violated Google's First Amendment rights by: regulating Google's speech based on its content; 12 AG Hood listed a draft of the CID in a privilege log he provided to Google. That claim of privilege is currently under review by Judge Wingate in Mississippi. 13 Brandom Article, available at