Last week, Google filed a petition in the Texas state court of Travis County for a protective order against Texas Attorney General Ken Paxton, who is leading a multistate antitrust investigation against the company.

According the New York Times, the petition largely takes issue with the safeguards put in place around how Google's sensitive business documents—including whitepapers and internal planning memos—would be shared with outside consultants on the investigation.

The company reportedly asked to be notified in advance before the attorney general's office shared its confidential documents with third parties. It also called for a "cooling-off" period that would keep those consultants from transitioning immediately to a new job with one of Google's competitors.

So, will Google get everything on its list? While protective orders in and of themselves aren't entirely out of the ordinary, the cooling-off period may be a tough sell given both the unusual nature of the request and the logistic difficulties it could pose to utilizing consultants and their expertise .

"You are not normally worried about your other side's experts stealing and monetizing the information that is provided to them for the analysis," said Eric Mandel, a consultant with the IT service management company Driven, Inc.

Complicating matters further is the résumé of the consultants that Paxton has lined up, one of which the Times identified as a former lawyer for Microsoft with experience representing clients in other antitrust cases against Google. The other, meanwhile, has logged time in the employ of a Russian search engine called Yandex.

For Google, the concern may be less about the past and more about what could happen if those consultants reengage those working relationships at some point in the future.

Joseph Tate, counsel and director of e-discovery and practice advisory services at Cozen O'Connor, said that while consultants in these types of cases will likely never be able to get their hands on documents that can be taken home, the sensitive information they are privy to can become lodged in their minds.

He said similar concerns around the use of consultants often come up in the intellectual property litigation space, where those experts will often agree to a prosecution bar that would prevent them from taking information gleaned from a case to file a competing patent.

As for whether or not a court would apply similar consideration Google's request for a cooling-off period, that remains to be seen.

"I don't think its [an] overreach though, frankly. If I was sitting in Google's shoes I [would] want to protect this information and they have every right to do so," Tate said.

However, that doesn't mean that getting there is a slam dunk. There may be other considerations that a court would have to take into account, even if it decided to consider a cooling-off period.

Megan McKnight, an attorney and founder of Tealstone Law, alluded to the tension between the need to protect Google's trade secrets and allowing the prosecution to make use of a consultant's expertise.

She pointed out there's no telling how long a case like this may last, which when stacked on top of a potential cooling-off period could mean that consultants have to wait quite some time before they are able to take their next gig.

"The consultants may decide not to continue without clarity on what the limitations are that will be imposed on them and how long that is," McKnight said.

But even if Google's efforts to secure a cooling-off period are ultimately unsuccessful, it may still accomplish its objective with regards to protecting its trade secrets given the public nature of the petition filed in Texas.

"Even if it's denied, everybody is on notice that Google is very concerned about this so that will help encourage people to maintain strict compliance with the [protective] order that is ultimately entered," McKnight said.

Instant Insights /

Will Google Get Everything It Asked For In Protective Order Against Texas AG Ken Paxton?

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