WASHINGTON (CN) — In a court filing Friday, The New York Times slammed the Justice Department and Google’s “lip service” to public access in a looming remedy trial over the tech giant’s internet search monopoly.
The Times said neither party could explain why any documents or portions of documents shown or discussed in open court should not be posted publicly or emailed to the press each evening.
The news outlet asked U.S. District Judge Amit Mehta to adopt a form of contemporaneous access to such documents that was adopted in a parallel antitrust case over Google’s dominance in the advertising technology industry.
“Ignoring the exemplar of contemporaneous access set by Google Adtech, they act as though the Times has the burden to show why the multi-day delays in access to exhibits used in open court during the liability trial should not simply be reinstated for the remedies hearing,” the outlet wrote, referring to the ongoing monopoly case in Alexandria.
The Times noted that it modeled its request closely after the process adopted by U.S. District Judge Leonie Brinkema, of the Eastern District of Virginia, in the Adtech trial, where both parties “had no trouble complying.”
Brinkema, a Bill Clinton appointee, required the parties to post exhibits online no later than 10 a.m. the morning after it was admitted.
“Given the benefit of experience from that case, and freed from mid-trial constraints, the court should ensure that access to the remedies hearing is truly contemporaneous,” the Times said.
The parties issued a joint proposal a week ago that would have Mehta set up a 72-hour review period for closed session transcripts and exhibits during an upcoming 15-day evidentiary hearing before making them public.
Under the proposal, Google and any third parties, such as Apple, would be able to suggest redactions that Mehta could then approve or deny before publicizing anything from the hearings scheduled for April 21 through May 9.
The liability phase was marred by sealed testimony, redacted documents and closed hearings, much to the ire of the public and the press, creating a so-called “veil of secrecy” over the trial.
During the first few weeks of the trial, Mehta had regularly allowed many exhibits to remain redacted, on occasion closing the courtroom rather than presenting them publicly. But as the trial wore on — and as a coalition of media organizations led by the Times moved for access — Mehta began to reject such requests.
“In fact, it is the parties who must justify overcoming the presumptive public right of contemporaneous access,” the Times said. “They have not done so here.”
The Times noted that, when Mehta granted their request to begin providing access to trial materials, it was the seventh week of the liability trial and was necessary after the parties continued failure to provide the materials on their own.
“In adopting longer timeframes for releasing trial exhibits, the court was simply doing its best to unwind pre-existing access limitations within the tight constraints of an ongoing trial,” the Times said.
That should no longer be an issue, the outlet said, because it had brought its access motion more than a month before the remedies phase would begin. The Times noted Mehta expressed that he wished the press had brought such a motion before the liability trial began.
The evidentiary hearing will center on the parties proposed remedies to address Google’s monopoly over internet search and include several witnesses and reams of documents.
In a revised proposed final judgment offered this month, the Justice Department urged Mehta to order Google divest its Chrome browser and end default search engine deals to allow other search engines to compete in the market.
Google, on the other hand, has asked Mehta to craft a narrow remedy, allowing it to keep its Chrome browser while prohibiting agreements that condition certain products, like the Google Play store or Chrome with making Google the default search engine.
The remedy phase trial is set to begin in May and is expected to run throughout the remainder of 2025. The liability phase lasted 40 days between October and November 2023, with closing arguments in May 2024.
