Adversity to advantage? | The CAT's recent ruling in the Google Play Store CPO emphasises the difficulties in imposing an order for disclosure of known adverse documents in competition cases

The Tribunal had ordered that disclosure in the proceedings would be provided in stages by reference to various "repositories"; for example, documents provided to plaintiffs in related U.S. proceedings, and documents submitted to regulators, including the CMA and the Commission. The CR submitted that as the disclosure process unfolded, "gaps" in Google's disclosure had been identified, essentially by chance, which caused concern that, purely as a function of the disclosure process that had been ordered, relevant documents may not have been disclosed. The CR contended that this issue could not easily be addressed by way of specific, targeted requests for disclosure, because the CR may simply be unaware of what documents should be sought. The CR would be dealing, to use Donald Rumsfeld's famous formulation, with "unknown unknowns".

The CR accordingly sought an order that Google disclose "Known Adverse Documents", as defined in paragraph 2 of Practice Direction 57AD to the Civil Procedure Rules; namely, "documents (other than privileged documents) that a party is actually aware (without undertaking any further search for documents than it has already undertaken or caused to be undertaken) both (a) are or were previously within its control and (b) are adverse."

The CR contended that the order was both necessary, to avoid relevant documents slipping through the net, and proportionate, given the quantum of the proceedings. Counsel for the CR posited that, absent such an order, Google's witnesses might refer to adverse documents when being proofed that Google would be under no obligation to disclose. He suggested that the order could be complied with through Google identifying individuals who should be subject to the obligation, explaining the relevant issues in the proceedings to them, and asking whether they are aware of any documents within Google's control that meet that definition.

Google submitted that the case would not turn on issues of fact such as when and where a meeting took place, but rather on an economic appraisal of the definition of the relevant market, an assessment of dominance, the fairness of pricing and so on; matters which would fall to be assessed in accordance with competition economics. Such an exercise of economic assessment is not well-suited to a "known adverse documents" regime, and the process of educating a potentially large number of individuals in relation to complex issues of economic assessment would be far from straightforward. In circumstances where the scope for dispute as to primary fact was likely to be limited, the order sought was unjustified, and compliance would be disproportionate.

The Tribunal outlined that PD 57AD, which contains the requirement to disclose known adverse documents, does not apply to competition claims, and certainly not to proceedings before the Tribunal, which are governed by the Tribunal's Rules. The Tribunal does have jurisdiction to order disclosure of known adverse documents (indeed Mr Justice Roth ordered disclosure of a narrowly defined category of known adverse documents in Infederation v Google LLC and Others), but whether it should do so would depend on the circumstances of each case, including whether such an order is necessary to deal with the case justly and at proportionate cost.

Further, there were good reasons for the exclusion of competition claims from PD57AD. Competition cases are frequently complex, and expert evidence in competition economics is "generally front and central" in resolving the key issues in dispute, particularly in respect of collective proceedings where loss is established on a class-wide basis, pursuant to a general and class-wide theory of harm. Whilst "expert evidence must not become elevated so as to become purely theoretical and divorced from the factual reality underpinning the context in which the claims arise", disclosure in competition cases frequently entailed the provision of data or information requested by experts, rather than contemporaneous documents pertaining to contentious issues of fact.

The Tribunal determined that to impose upon Google a general obligation to disclose known adverse documents would be "fraught with difficulty". It would entail Google conducting "some form of education exercise" for each identified individual about the parties' respective contentions on competition economics, which would be time consuming and burdensome. In a case where competition economics underpinned the case methodology, the concept of an "adverse document" was not straightforward to apply or explain; indeed, counsel for the CR acknowledged that it was not obvious whether data that had already been disclosed was adverse to Google's case or not. In the Tribunal's view, this raised serious questions as to the efficacy of the order sought. The "gaps" that the CR had identified did not warrant the imposition of an order to disclose known adverse documents and could be addressed through less onerous measures.

Google addressed the hypothetical scenario posited by the CR's counsel, where a factual witness proofed by Google referred to an adverse document that had not been disclosed, by explaining that they would regard such documents as falling within the scope of paragraph 3.2 of Practice Direction 2/2021: Trial/Appeal Witness Statements in the Competition Appeal Tribunal, which requires a trial witness statement to identify by list documents that the witness has "referred to", for the purposes of providing the evidence set out in their statement. In any event, Google confirmed they would ask their factual witness whether they were aware of any adverse documents relating to the matters covered by their evidence and disclose any such documents within a reasonable period. The Tribunal also said that, whilst it had not heard argument on the point, it would expect each party to disclose any documents they became aware of that would, if withheld, render misleading documents already provided.

The Tribunal's ruling illustrates the difficulties in framing and seeking an order for disclosure of known adverse documents in competition cases, particularly collective proceedings, where expert evidence is pivotal to the establishment of loss on a class-wide basis. As the Tribunal explained, the concept of an "adverse" document is not straightforward in a case that will be determined on an assessment of complex, competing economic models.  The Tribunal determined in this case that the order sought was overly broad, and that any future application should define more narrowly the parameters of what Google was being asked to do. That is, perhaps, a salient takeaway for claimants in competition claims, albeit it may be difficult to specify with precision the categories of documents sought, given the information asymmetry that often prevails in such cases.