The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
THE STATE OF TEXAS, ET AL. §
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v. § CIVIL NO. 4:20-CV-957-SDJ
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GOOGLE LLC §
MEMORANDUM ADOPTING ORDER
OF THE SPECIAL MASTER
Before the Court is Special Master David Moran’s Order, (Dkt. #470),
concerning, inter alia, Google’s request for Rule 30(b)(6) testimony from Plaintiff
States as to the facts learned from pre-suit interviews with third parties. Plaintiff
States objected to the order, (Dkt. #483), contending that the information sought
constitutes protected attorney work product. Google responded in support of the
Special Master’s Order. (Dkt. #490). After full consideration, the Court determines
that Plaintiff States’ objections are overruled, and accordingly adopts the Special
Master’s Order.
The work product doctrine “insulates a lawyer’s research, analysis of legal
theories, mental impressions, notes, and memoranda of witnesses’ statements from
an opposing counsel’s inquiries.” Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869,
875 (5th Cir. 1991). It also protects the “materials prepared in anticipation of
litigation” regardless of whether they were “prepared by the attorney or by agents of
the attorney.” Adams v. Mem’l Hermann, 973 F.3d 343, 349 (5th Cir. 2020). However,
the work product doctrine does not protect underlying facts. Id. A party cannot avoid
disclosure of underlying facts by burying them in a privileged document.
Here, Special Master Moran determined that the memoranda concerning
third-party interviews were protected under the work product doctrine, but
underlying facts in such memoranda are not protected and should be disclosed. This
is not complicated—it’s black letter law. The Plaintiff States agreed to provide a Rule
30(b)(6) witness who could testify to such underlying facts. But the States’ witness
was apparently unprepared to do so. See (Dkt. #406-5 at 198) (Q: “[S]o you didn’t
review any of the interview memorandum that are referenced in the privilege log,
right?” A: “Correct.” Q: “And you didn’t ask anybody about the substance of those
interview memoranda, right?” A: “Correct.”); (Dkt. #406-5 at 201) (Q: “[Y]ou don’t
have [any] understanding of the specific subject matter that was discussed during
[the third-party] interviews, right?” A: “Correct.” Q: “And you don’t have any
understanding of what specific facts were conveyed during those interviews, right?”
A: “Correct.”). This is puzzling and unacceptable. How could the States expect a
witness who had no familiarity with the interview memoranda to provide testimony
on underlying facts included in these documents?
The States must provide a witness who has reviewed the memoranda
sufficiently to provide comprehensive testimony on all underlying facts in these
documents. More broadly, such witness must also otherwise be prepared to address
all underlying facts learned from the States’ pre-suit interviews. And, if necessary to
provide comprehensive testimony on such underlying facts, the witness must confer
with attorneys or others who are no longer employed by the States. This information
is of obvious importance in this case and should have been a priority for the States in
meeting their discovery obligations. Apparently, it was not.
In this regard, Plaintiff States’ suggestion that Google was somehow obligated
to seek out and depose the third-party witnesses to learn any underlying facts is
rejected. As Google aptly points out, Plaintiff States agreed that the underlying facts
are not privileged and agreed to provide a 30(b)(6) witness who could testify to those
facts learned in pre-suit interviews. (Dkt. #490-1). Plaintiff States have failed to
comply with this agreement. They must comply immediately and completely.
The Court cautions the parties not to engage in gamesmanship as they
complete fact discovery in this case. Such conduct will not be tolerated.
Therefore, the Order of the Special Master, (Dkt. #470), is ADOPTED and
Plaintiff States objections, (Dkt. #483), are OVERRULED.
Google’s request for Rule 30(b)(6) testimony regarding the facts learned from
pre-suit interviews with third parties is GRANTED.
It is further ORDERED that Plaintiff States must provide a knowledgeable
Rule 30(b)(6) witness who can testify to such facts.
It is further ORDERED that such deposition shall be conducted no later than
May 24, 2024.