Google Seeks to Compel Havas to Comply With 'Identical Subpoenas' in Digital Ad Suits

Google moved the court Thursday to compel third-party Havas Media Group to comply with its two "identical subpoenas" to provide documents for antitrust lawsuits about its digital advertising business, said the filing (docket 3:23-mc-03007) in U.S. District Court for Central Illinois in Springfield. The ad agency doesn't consent to the motion, which Google issued as part of its effort to defend against “multiple antitrust lawsuits,” Google said.

The DOJ lawsuit against Google identified Havas as an industry participant that it contacted about alleged “anticompetitive behavior by Google,” said the motion. The Havas subpoenas include 16 requests, 15 of which ask only for “documents sufficient to show” Havas’ agreements and assessment of ad tech tools, “matters directly relevant to the underlying lawsuits,” including documents comparing Google and non-Google display advertising tools and data about the tools, the motion said.

The Havas information Google seeks “is uniquely in Havas’s possession in its role as an intermediary between tool providers and advertisers,” said the motion, saying the ad agency refused to “meaningfully engage” in Google’s repeated attempts to negotiate, “effectively trying to quash the subpoenas.”

Google is defending itself against putative class actions brought by private publishers and advertisers, individual private actions and the action brought by state attorneys general in multidistrict litigation in the Southern District of New York (docket 3010), plus a suit by DOJ and a “different set” of state AGs in a case pending in the Eastern District of Virginia (docket 1:23-cv-00108), it noted. The defendant served subpoenas in the MDL and in the DOJ action on Havas, each seeking the same information, given the "overlap in allegations" in the actions, it said.

The DOJ identified Havas as an industry participant it contacted as part of its investigation before litigation, said the motion, so “it cannot be disputed that Havas has information relevant to the actions against Google,” especially since the ad agency partners with Google’s competitors, the motion said. Havas announced a partnership with sell-side platform provider PubMatic, to enable buyers “to connect their data more directly with that of publishers,” the motion gave as an example: “The performance of that partnership, shown through Havas’ data and client deliverables, could help rebut any allegations concerning competition in the industry.”

Google’s “limited requests” are for documents sufficient to show Havas’ data on metrics and performance of impressions for its government and top-25 private clients; documents showing its advertisers that use the products at issue and its “agreements related to the marketplace”; strategic documents showing how Havas measures returns on ad spend and its assessment of providers in the marketplace; and documents on investigation or litigation concerning Google’s display advertising products.

Havas was served the subpoenas in the New York and Virginia district courts, with governing protective orders in each case, on May 19, with a compliance date of June 1, the motion said. Havas refused to produce documents in response to any of Google’s requests, submitting “boilerplate, general objections” June 1 and raising “general confidentiality concerns,” it said.

In June, Havas counsel said the company was disappointed Google wasn’t withdrawing all of its requests, saying Google didn’t need documents or data beyond what the DOJ requested from it “even though the DOJ Action is only one of many actions against which Google is defending itself,” the motion said. Havas ultimately offered to produce only its agreements with Google entities, agreements with any state or federal government entities, and communications with the DOJ or state attorneys general, plus “its internal tool ‘scorecards,’ for which Havas provided only a limited description and that do not appear to provide color” on which clients use the tools, their effectiveness or Havas’ recommendations to clients concerning the tools, it said.

Google said it needs to “defend against the sprawling claims against it,” and to do so, it needs information on Havas’ agreements with other ad tech providers “to better understand Google’s market share"; it needs data on the performance of its different tools for the same reason. Google offered "to limit” its request for client agreements and subsets to the ad agency's top 25 clients to help the company narrow the information it would need to review to comply, the motion said. Discussions “reached an impasse” July 31 when Havas “refused to provide” a list of its top 25 clients “until Google identified the handful of Havas clients in which it was most interested, even though Google is not in a position to know who Havas’s clients are,” it said.