Trial Update, September 20: Google whips up a big football-shaped bowl of adtech spaghetti, and gets served a dose of reality about their eroded credibility

The end of week 2 marks the end of the DOJ’s case-in-chief.
We got to hear from Google's first witness, but not before we sit through hours of Google badgering the DOJ’s final witness, and a lot of talk about food, which oddly continued throughout the day.

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Robin S. Lee, Professor of Economics at Harvard

The morning begins with cross-exam of DOJ’s economic expert Dr. Robin S. Lee by Google attorney Bill Isaacson. As I anticipated, it lasts forever. Literally 4.5 to 5 hours. It’s the confuse-and-distract Olympics, as he tries to poke holes in Dr. Lee’s analysis by jumping between publisher, advertiser, and rival perspectives as it suits his points.  There have been so many food analogies that Judge Brinkema says Bill must be hungry. Discrediting these experts is life-or-death for Google’s case, and Lee held up well.

Scott Sheffer, VP of Publisher Partnerships

We finally get to Google’s first witness around 3:30PM: long-time sell-side sales VP, Scott Sheffer. I am not entirely convinced that he isn’t Google Ads lead Dan Taylor in a different suit.  Google starts off with superfluous questions about his educational background and PhD in aerodynamics engineering, I believe. Ostensibly this is to establish technical credibility although he’s in sales. We then see a picture of a gray football-shaped oval on the screens. He is asked to map out the adtech ecosystem. It looks like an impossibly tangled web with Google logos everywhere. It is a classic showing of Google’s textbook weaponized complexity, but it backfires, creating a striking picture of the extent to which Google’s control pervades the ecosystem.

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Several times, Google tries to prompt Sheffer to talk about deals or events that occurred after discovery ended, or that were not disclosed during discovery.  This prompts Judge Brinkema to say that more than that, it’s “highly questionable” testimony because it was after Google was “on notice” of investigation/litigation and thus a lot of this will be “tainted.” The Judge does allow Google to have Scott discuss their X/Twitter deal to enable access to X ad inventory programmatically. (Because, you know, advertisers are just dying to advertise there these days.) Similarly, he is asked about whether he tracks The Trade Desk earnings, and what he instructed his team about their August earnings report. After a few objections are sustained, Judge Brinkema says that a lot of this seems like it more relevant to remedies than it is to liability. My interpretation of this comment is that she understood Google as trying to show how difficult and disruptive it would be to break them up. Probably not the best place to start their defense.

On cross, the DOJ asks for Spaghetti Football to be put up on the screen, and one-by-one, removes the products that do not allow publishers to monetize display ad inventory on their websites, so we’re left with…the products that form the basis of the markets in the DOJ’s complaint.  Look at that. The impossibly tangled web can be untangled after all. Next, the DOJ pulls up internal documents where we see Google does indeed track web display inventory separately from other ad inventory like search, instream video, native app, native web."

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Benneaser (Ben) John, VP of Engineering at Microsoft AI

The next witness is a read-in of Benneaser John’s deposition. John is an engineering lead at Microsoft, formerly AppNexus CTO, then Xandr.  Google’s line questioning is again trying to distort market definition, to depict how Microsoft, Meta, and Amazon are all Google competitors in one single, fiercely competitive market. Yet, even the documents that Google references during the deposition show that Xandr “repositioned to focus on video.” Gee, I wonder why that would be. DOJ during the deposition goes through the usual line of questioning to unwind the distortion - e.g. can Facebook be used as a publisher ad server.
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Calling EDVA the Rocket Docket is no exaggeration.
Google expects to rest its case late next week, so we may well be heading into the last days of this trial.

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