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U.S. v. Google: Antitrust Enforcement is No Exception in the Rocket Docket

Client Updates

The Department of Justice’s choice of venue in U.S. v. Google1,  an antitrust action alleging monopolization of advertising technology markets, grabbed the attention of the antitrust bar earlier this year.2 On January 24, 2023, the United States and a coalition of eight states filed their complaint against Google in the Alexandria Division of the United States District Court for the Eastern District of Virginia (“EDVA”), also known as the “Rocket Docket.”  

The Rocket Docket is famous (or infamous) for its expeditious resolution of cases, averaging just over six months from filing to final resolution.3 Discovery periods range from four to six months, and discovery extensions are disfavored. Speed is baked into the Court’s rules, deadlines, and procedures.  For example, when denying Google’s motion to transfer (discussed below), the Court proved its penchant for urgency by ordering the parties to file a proposed discovery schedule within 14 days of that order.4

Complying with the Court’s order, the parties filed a joint motion for entry of a discovery schedule and proposed a close of discovery date for November 2023 and a final pretrial conference on July 18, 2024. Following a hearing on the parties’ joint motion, the Court entered an order on March 24, 2023, granting the schedule in part, shortening the parties’ proposed fact discovery period by two months and rescheduling the final pretrial conference to January 18, 20245. Fact discovery opened on March 27, 2023, the same day that Google filed its motion to dismiss.  The Court denied Google’s motion to dismiss in late-April.

Fact discovery is set to close on September 8, 2023—more than nine months before the close of discovery in the related ad tech multidistrict litigation (“MDL”)6,  which has been pending in the Southern District of New York since September 2021. The Court’s aggressive schedule has held, with the exception of requests to take certain third-party depositions out of time, which the Court granted, setting a final deadline of September 30, 20237.  Even with this extension, the discovery period will conclude before October 2023—a lightning-speed turnaround for such a complex case.  This speed also outpaces the District of Columbia’s schedule in the Google search litigation, which has been pending since October 2020 and is set to go to trial in September 20238

The parties may very well have a jury trial within the next year and this pace is on par with the typical EDVA schedule.  As of 2022, the median time to trial in the Rocket Docket averaged 18.6 months, which, while still fast by federal district court standards, likely reflects a now lessening civil case backlog caused by the COVID-19 pandemic.9 By comparison, the Court’s median time to trial in 2019 was 13.4 months.10  And across all district courts in 2022, the median time to trial was 29.8 months, more than twice as long as in EDVA.11

EDVA’s reputation as the Rocket Docket also influenced the Court’s resolution of Google’s motion to transfer. On March 14, 2023, the Court denied Google’s motion to transfer the case to the Southern District of New York, to join the consolidated ad tech antitrust actions against Google.  In doing so, the Court cited the “strong public policy interest in expeditious resolution of government antitrust enforcement actions” underlying the Multidistrict Litigation Act of 1968’s exemption of “antitrust actions brought by the federal government (and recently, state governments) from MDL consolidation.”12  The Court reasoned that if the case were to be transferred to New York, the slog inherent in multidistrict litigation would delay the case, interfering with the Government’s interest in swift case resolution.

The Court recognized its fast pace as a factor mitigating the risks of inconsistent judgments: “given this district’s rocket docket, many discovery issues as well as summary judgment will likely be resolved by this Court before the Southern District of New York, which will enable that court to take those decisions into consideration.”13  Further, the Court explained that Google’s judicial efficiency concerns were outweighed by congressional intent to resolve government antitrust actions with speed and efficiency.14 

Overall, the Rocket Docket’s speed can benefit plaintiffs who are ready to run, and the Court has recognized that its reputation can create the risk of forum shopping. The Court’s order noted that because of the benefits of a fast-moving docket, “a plaintiff’s choice to litigate in the Eastern District of Virginia should not be afforded weight where ties to the district are lacking and this district is sought out primarily because of its reputation as the ‘rocket docket.’”15 

The Court’s modifications to the parties’ proposed joint discovery plan in this case suggested that neither party was keen on moving through discovery at such a pace. But throughout discovery, both parties were able to leverage the Court’s rules to their advantage. The Court’s 16(b) orders provide an expedited, one-week briefing schedule for discovery and non-dispositive motions, such as motions to compel.16 For example, both parties recently moved to take depositions out of time, noticing a hearing Friday August 25, 2023 with a hearing set for the following Friday, September 1, 2023 before the Magistrate Judge (who typically handles discovery disputes).

Time will tell whether the Rocket Docket’s speed creates advantages or disadvantages for either party or instead levels the playing field by creating a strict schedule. The Court’s approach to a high-profile and contentious antitrust case could demonstrate that even the most complex of cases can be resolved quickly and efficiently.  

1 U.S. v. Google LLC, 1:23-cv-00108-LMB-JFA (filed January 25, 2023).

2 The Rocket Docket’s aggressive schedule for this case was mentioned multiple times during the American Bar Association’s Antitrust Law Section’s 71st Annual Spring Meeting.  For example, Gwendolyn J. Cooley, assistant attorney general for antitrust of Wisconsin and chair the National Association of Attorneys General, remarked that Google should “get their running shoes on.”   And John Thorne of Kellogg, Hansen, Todd, Figel & Frederick expressed skepticism that the Court would be able to meet its aggressive discovery deadlines.

3 Administrative Office of the U.S. Courts, Civil Federal Judicial Caseload Statistics 2022, Table C-5 (Mar. 31, 2022), (showing a value of 6.9 for “Total Cases: Median Time Interval in Months” for “VA,E”).

4 ECF No. 61 (E.D. Va. Mar. 14, 2023). 

5 ECF No. 69 (E.D. Va. Mar. 24, 2023). 

6 Gale Force Media, LLC v. Google, LLC, et al., 1:21-cv-06909 (filed August 17, 2021). 

7 ECF Nos. 388, 389 (E.D. Va. Sept. 5, 2023).

8 United States v. Google LLC, No. 1:20-cv-03010-APM (filed Oct. 20, 2020).

9 Administrative Office of the U.S. Courts, Civil Federal Judicial Caseload Statistics 2022, Table C-5 (Mar. 31, 2022), (showing a value of 18.6 for “During Trial: Median Time Interval in Months” for “VA,E”).

10 Administrative Office of the U.S. Courts, Civil Federal Judicial Caseload Statistics 2019, Table C-5 (Mar. 31, 2019), (showing a value of 13.4 for “During Trial: Median Time Interval in Months” for “VA,E”). 

11 Administrative Office of the U.S. Courts, Civil Federal Judicial Caseload Statistics 2022, Table C-5 (Mar. 31, 2022), (showing a value of 29.8 for “During Trial: Median Time Interval in Months” for “Total”).

12 ECF No. 60 at 7 (E.D. Va. Mar. 14, 2023); see 28 U.S.C. § 1407(g)).  

13 Id. at 17.

14 Id. at 18.

15 Id. at 14.

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