NEW YORK (LN) — U.S. Magistrate Judge Barbara Moses issued the order on May 12, concluding that 11 of 12 "Sample Documents" submitted for in camera review were properly withheld, but the 12th document — an Excel spreadsheet listing various DMCA repeat infringer policies — must be turned over.

The dispute began when Cengage sought to compel Google to produce documents withheld as privileged, including those concerning its "repeat infringer" policies. Moses had previously denied the motion except for 51 documents identified in a declaration by Cengage’s expert, Yunyi Chen.

The parties selected 12 of those documents for in camera review. Google withdrew its privilege claim for one document, allowing Cengage to select a replacement. Google then filed three declarations from in-house attorneys Sarah Tomkowiak, Brian Carver, and April Kelly to support its privilege assertions.

Moses noted that Google’s privilege log labeled the spreadsheet "[Deprecated - Do Not Use] List of Copyright (DMCA) Repeat Infringer Policies - Attorney/Client Privileged" and claimed it reflected legal advice regarding policy compliance.

However, the judge found Google’s justification insufficient. Brian Carver, a current Google in-house attorney, attested that he "understands" that Submission Number 5 was created in 2011, by another in-house attorney, "in connection with an assessment of Google's repeat infringer policies across Google products conducted by Google's copyright counsel in order to provide legal advice regarding Google's legal compliance."

Moses wrote that Carver "provides no factual basis for his 'understanding' as to the provenance of the document, and nothing on the face of the document fills that gap."

The spreadsheet itself was undated, though Google’s privilege log listed a create date of November 11, 2019, and a document date of February 24, 2021. A footnote in the order noted that no dates later than 2011 appeared on the spreadsheet itself.

Moses ordered Google to "promptly produce Submission Number 5, and any similar document (among the 51 still at issue after this Court's March 10, 2026 order) for which it cannot substantiate the claim of privilege."

The case, Cengage Learning Inc. et al v. Google LLC, is pending before U.S. District Judge J. Paul Oetken.