What will the public get to see?

In a dramatic moment, a Bloomberg reporter stood up in defense of the public's access to the trial.

Judge Mehta is expected to rule on whether DOJ will be allowed to continue posting admitted exhibits to its website. (Photo by Mark Wilson/Getty Images)

Since the Google antitrust trial started, one of the issues I’ve been tracking is how much of the trial plays out in the public eye. 

The opening statements were audio-streamed on a public phone line, but since then, the only way to follow the action in the courtroom as it happens is to go to court. And even if you’re in court, significant portions of the exhibits are redacted and parts of the witness examinations have been sealed to the public.

The redaction and confidentiality of various chunks of information had been the subject of pretrial disagreements and negotiations between the parties with Judge Mehta largely taking a hands-off approach. Through the first week of the trial, though, the issue didn’t come up much at all; DOJ and Google seemed to be on the same page about what would proceed in open court vs. closed session.

That status quo changed yesterday when DOJ and Google argued about what DOJ should be allowed to ask Google ad executive Jerry Dischler in open court. Judge Mehta ruled for the DOJ in that disagreement, and the majority of Dischler’s testimony occurred in open court. If Judge Mehta had ruled for Google, some of Dischler’s testimony still would have been public — but it’s likely we wouldn’t have learned the details of the pricing changes Google has experimented with and implemented on its advertising auctions.

Today we saw another major development in the issue of how much of this trial would play out before the public. During an argument between a Google lawyer and a DOJ lawyer about whether an exhibit should be admitted under an exclusion to the hearsay rule, Google’s lead trial lawyer John Schmidtlein chimed in alongside his colleague. I don’t have a verbatim quote for this, but he said something to the effect of: Just so Your Honor understands the significance of your decision, every document they push into their evidence, they post on their website. And it gets picked up far and wide.

Schmidtlein was referring to a page on the DOJ website — which has since been taken down — where DOJ had been posting exhibits that were admitted in court during the day’s proceedings. It was apparently news to Judge Mehta that DOJ was doing this, and he told DOJ that parties usually inform him before they do this. (It’s been reported that Google was also previously posting its exhibits on this site. I can’t personally confirm this because I hadn’t been aware of it before.) 

After Schmidtlein brought this up, Judge Mehta told the DOJ to continue examining the witness (Google Finance VP Mike Roszak) without the document, and they’d return to the issue later. After about another half hour of testimony, Judge Mehta dismissed Roszak for the day and took up the issue again. I summarized what happened next on Twitter.

For now, the exhibits that were previously posted on the DOJ’s site are no longer up there — although a lot of them have probably already been memorialized elsewhere on the internet. We don’t know yet if they have just been taken down temporarily, or if the DOJ might stop posting exhibits on its website altogether.

Readers can reach their own conclusions about the relative importance of these exhibits being publicly posted, but I’ll share a little perspective from my experience covering the trial so far: it has been challenging for me to take accurate and complete notes on everything happening during the course of live testimony. The admitted exhibits are often posted on a public screen during the live testimony, but then they’re taken down after the questioning moves to another subject. Unlike Judge Mehta and the lawyers in the case, reporters and members of the public aren’t able to keep a hard copy of the exhibit to refer back to. The content of the exhibits may be read into testimony — in which case it will be somewhat preserved in the trial transcripts — but oftentimes it is not. So if the exhibits are not posted publicly somewhere, the information in the exhibits will only make it out of the courthouse if a reporter or member of the public writes it down quickly enough; it’s not easy to do this for longer exhibits, especially when you’re also trying to follow the ongoing testimony.

We will see how Google and DOJ — and Judge Mehta — work out this issue tomorrow. Nylen tweeted that Bloomberg will be sending a First Amendment lawyer to argue on behalf of the right of public access to exhibits if necessary.

Dischler’s testimony continues

Google ad executive Jerry Dischler remained on the stand for more than half the day today, facing cross examination from Google and redirect examination from DOJ and the States.

Google’s lawyer spent a significant portion of his cross examination asking Dischler about the “digital advertising pie” that Google competes for a piece of. According to Dischler, Google faces fierce and growing competition from other tech giants like Meta, Amazon, and TikTok.

Additionally, Dischler disputed the DOJ’s contention that search ads are more valuable than other kinds of digital ads, because non-search digital ads “do not enable advertisers to target customers based on specific queries and are generally aimed at customers who are further from the point of purchase” (from Paragraph 99 of the DOJ’s complaint). Dischler added that the concept of a “purchase funnel”, which is also referred to in the DOJ’s complaint, is obsolete.

The likely intent of this testimony was to undermine DOJ’s claim that search advertising is a relevant antitrust market; instead, Google competes in a broader digital advertising market, in which it is losing market share to competitors like Amazon.

One other note: I intended to return to some more notable details of Dischler’s testimony from yesterday. I was going to use the exhibits on DOJ’s site to revisit this — which I can’t anymore — but Jason Kint posted a helpful Twitter thread that covers a lot of Dischler’s testimony. (Still, he linked to some exhibits on DOJ’s site that are not currently accessible.)

There was some other testimony from two other former/current Google employees who led finance teams — John Yoo and Mike Roszak — but the big issue today was really the public exhibits. Rozsak’s testimony discussed Apple’s 2012 replacement of Google Maps with Apple Maps, which bears on the power of defaults, but we should get to hear more from him about this when testimony picks up tomorrow. We might also get to see the document that prompted the arguments over the public exhibits as Judge Mehta said he’d rule on its admissibility after the parties submitted short briefs on it in the evening. That’s all I have for now.