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The U.S. Supreme Court on Monday declined to hear an appeal from a South Carolina state agency challenging a Fourth Circuit ruling that compels compliance with a Google subpoena. The subpoena is part of a high-profile antitrust lawsuit accusing Google of monopolizing digital advertising technology.

As is standard, the Supreme Court did not provide any explanation for its refusal to take up the South Carolina Department of Parks, Recreation and Tourism’s petition. This decision upholds the Fourth Circuit’s determination that the state waived its sovereign immunity by joining the ongoing ad tech litigation.

SC Google Subpoena rejection : Background on the Antitrust Lawsuit

South Carolina is among a coalition of states suing Google in a Texas federal court, alleging the tech giant has violated antitrust laws by dominating the market for display ad technology, which is used to place ads on third-party websites. This state-led litigation is separate from a similar antitrust case initiated by the U.S. Department of Justice and another group of states in a Virginia federal court, where a bench trial recently concluded.

Google is seeking documents related to South Carolina’s digital advertising activities as part of its defense strategy in the Texas case. However, the state agency argues that it should be protected from the subpoena due to sovereign immunity.

SC Google Subpoena rejection : Lower Court Decisions

The subpoena battle began when a federal court in South Carolina denied the agency’s motion to quash the subpoena in July of last year. The court ruled that by joining the ad tech lawsuit, South Carolina effectively waived the Parks Department’s immunity. The judge highlighted that South Carolina and other plaintiff states had previously directed Google to request documents from state agencies directly, as those agencies possess control over the relevant information.

A unanimous panel from the Fourth Circuit affirmed this ruling in June and subsequently denied a rehearing request in July, despite the agency’s argument that the case presents significant questions about the limits of 11th Amendment immunity.

Arguments and High Court Appeal

In its petition to the Supreme Court, the South Carolina agency argued that the Fourth Circuit improperly assumed that all state officials act in unison when waiving immunity. The agency contended that this is the first time a court has applied such a broad interpretation of sovereign immunity waivers.

Google, on the other hand, supported the Fourth Circuit's findings, emphasizing that South Carolina voluntarily waived any immunity by joining the ad tech case, which extends to any subpoena targeting state agencies. Google further argued that adopting the agency’s position could result in “litigation abuses” and unfairly limit defendants’ access to discovery crucial for mounting a defense.

Chief Justice John Roberts had previously denied the agency’s request to stay the Fourth Circuit’s mandate while it pursued Supreme Court review.

Legal Representation

The South Carolina Department of Parks, Recreation and Tourism is represented by attorneys R. Walker Humphrey II, Mitchell Willoughby, Margaret M. O'Shields, and Hunter R. Pope from Willoughby Humphrey & D'Antoni PA. Google’s legal team includes Neal Kumar Katyal, Jessica L. Ellsworth, and William E. Havemann from Hogan Lovells.