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The DOJ rests its case
Day 22-23: After presenting multiple days of testimony from MIT economist Michael Whinston, the DOJ said it had no more witnesses left to call.
The DOJ concluded its presentation of evidence today after completing its examination of expert witness Michael Whinston.
In total, Whinston’s testimony spanned four days of trial as he was initially called to the stand a couple of weeks ago to present the first portion of his testimony. He resumed his testimony yesterday morning and didn’t leave the stand until midway through the afternoon.
Lengthy as it was, Whinston’s testimony didn’t necessarily tell us a lot that we didn’t already know. He’s an expert witness hired by the DOJ — not a fact witness — and the bulk of his testimony came at the very end of the DOJ’s case. But his testimony did provide a bird’s-eye view of the case as he discussed the economic theories and analysis underpinning the DOJ’s core claim that Google’s default search engine deals have illegally maintained its monopoly in search.
If you’re interested in the finer details of Whinston’s testimony, the slide deck he prepared for the first portion of his testimony is available here: https://www.justice.gov/d9/2023-10/416945.pdf. I would expect the slide deck for the second part of his testimony to be posted on the DOJ’s website either later tonight or by the end of the week (and will try to update this post once it is available).
At the highest level, though, Whinston distilled his testimony into five main opinions:1
General search services, general search text advertising, and search advertising in the United States are relevant markets.
Google possesses substantial market power protected by barriers to entry in each of the relevant markets.
Google’s search distribution contracts give it exclusive defaults, which are a larger driver of search traffic.
Google’s search distribution contracts foreclose rivals from a substantial share of each relevant market.
Google’s search distribution contracts have harmed competition to the likely detriment of consumers and advocates.
During the DOJ’s questioning, Whinston walked through how he reached all of these conclusions. He then faced a vigorous cross-examination from Google, which presented Whinston with a number of challenges about the limitations of his analysis and shortcomings in his methodologies.
It was hard for me to tell which of these challenges if any may have been effective with Judge Mehta. I think the lengthy questioning from Google presented a good example of what David Boies was talking about while reflecting on his role as the DOJ’s special trial counsel in US v. Microsoft: “[C]redibility matters the most in the most complex, science-based cases, because it is in those cases that the judge … is less capable of deciding for themselves whether what the witness is saying makes sense or not.”
All that is to say is that the significance of Whinston’s testimony will become clearer once we see Google put its own expert witnesses on the stand. We can assume Google’s experts will offer opinions that conflict with Whinston’s — and perhaps Judge Mehta will be able to diagnose actual flaws in either side’s witnesses. But given the highly technical subject matter of the testimony, Judge Mehta’s evaluations of the credibility of the competing expert witnesses may ultimately carry the day.
The ongoing saga over the trial’s secrecy
Yesterday saw yet another development in the ongoing controversy over public access to the trial as The New York Times filed a motion to intervene seeking access to judicial records in the case that have been sealed or have not otherwise been made publicly available. The motion was supported by several media outlets including Bloomberg L.P. and Dow Jones & Company, Inc. (publisher of The Wall Street Journal).
As I’ve reported at various points, public access to the trial has significantly improved since the first two or three weeks of the trial. The court went into a brief closed session today, but that was the first time the trial had been closed to the public in the last couple of weeks. Judge Mehta has also been unsealing previous testimony that was delivered during closed sessions and the DOJ has been posting many of its admitted exhibits online.
But as The New York Times’ motion pointed out, more could still be done to improve public access. Judge Mehta has yet to rule on the motion, but he heard oral argument from the parties and counsel for The New York Times yesterday afternoon. He was skeptical of certain proposals made by The New York Times, but he seemed open to considering whether his earlier order should be amended to require the parties to make their admitted exhibits publicly available, instead of just allowing them to.
Judge Mehta asked The New York Times to submit a redlined proposal of what they would want his amended order to look like. He also said he would have to hear more from the parties about how hard it would be for them to post all of their exhibits.
For now, we are still waiting to see if The New York Times’ motion results in any changes. The timing of the motion is significant given that the DOJ was the only party publicly posting its exhibits and now the DOJ has completed its case.
(Update: I missed that the NYT actually did submit additional filings this afternoon. Here is the NYT’s memorandum, which briefly reiterates the arguments from its original motion, and here is the redlined text of the proposed amendments to Judge Mehta’s original order.)
That’s all for now. We will hear from several more witnesses before the States rest their case, but tomorrow Google will actually present one of its defense witnesses out of order due to scheduling issues.
Whinston was direct-examined by the DOJ about the first two of these opinions during Week 4 of the trial; the DOJ’s direct examination over the last couple of days focused on his latter three opinions, but Google’s cross-examination covered all five opinions.