Alphabet’s Google urged a U.S. appeals court on Wednesday to force a South Carolina state agency to turn over internal records that it hopes to use to fend off claims that it unlawfully dominates the market for digital advertising.
A lower court judge ruled for Google on the question last year, and the agency appealed.
Google and the state agency did not immediately respond to requests for comment on Wednesday.
Google said it wants the records for its defense of the states' claims, including the South Carolina agency's "assessment of Google’s products as well as Google’s competitors."
South Carolina, through its attorney general, is a plaintiff after joining the case in 2021, but the state’s parks and recreation department is not. The central question in the appeal is whether and when a state agency can claim its own immunity to a subpoena.
Attorney Walker Humphrey, arguing for the state agency, said not every action by a state attorney general is taken on behalf of the entire state.
“It’s not enough to just say the attorney general sued somebody,” Humphrey told the appeals court. He added: “The state does not move as one giant indivisible mass.”
Google’s lawyer at the hearing, Jason LaFond, countered that the trial court correctly found that South Carolina’s participation in the antitrust litigation encompasses the entire state.
“The state agencies are nothing without the state,” LaFond told the court.
One of the panel judges, Stephanie Thacker, puzzled over how courts might distinguish which state agencies are directly represented by an attorney general's claims.
Humphrey suggested that the appeals court adopt a rule that each state agency can assert subpoena immunity on its own.
The underlying litigation is pending in Plano, Texas federal court. Google has denied the allegations, and its bid to dismiss the states’ lawsuit is pending.
A trial is scheduled to begin in March 2025.
The case is South Carolina Department of Parks, Recreation and Tourism v. Google LLC, 4th U.S. Circuit Court of Appeals, No. 23-1849.
For S.C. parks department: R. Walker Humphrey II of Willoughby Humphrey & D’Antoni
For Google: Jason LaFond of Yetter Coleman
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