Antitrust cases are typically framed as contests over markets: who controls them, who abuses them, who gets pushed out, and how all of this affects consumer welfare. But some of the most consequential disputes at the moment are not about pricing power or exclusionary conduct at all. They have nothing to do with substance and instead are about process. More specifically, they concern whether large companies can slow, narrow, or furtively blunt investigations through procedural tactics that blur the line between aggressive advocacy and outright defiance, while shaping enforcement in practice.
Recent antitrust cases have brought that dynamic into sharper focus. In the Epic Games litigation, a California federal judge found that Apple willfully violated an injunction and chided its efforts to “obvious[ly] cover-up” its noncompliance. And, in multiple separate proceedings, federal judges have admonished Google for its “absolutely inappropriate and improper” document preservation practices—including auto-deleting internal chats and its “Communicate with Care” policy, where attorneys are copied to manufacture privilege claims, as being designed to undermine the discovery process.
Under the leadership of the now former Assistant Attorney General Gail Slater, the Department of Justice’s Antitrust Division was beginning to respond. Whether that will continue following her resignation this week will be an important question to follow.
When Procedure Becomes Power
In recent months, DOJ officials have been unusually candid about what they see as a growing problem in antitrust enforcement: companies using delay, over-designation of privilege, and strategic document practices to frustrate and impede investigations before they reach the merits.
None of this is new in isolation. Privilege disputes, discovery fights, and aggressive lawyering are familiar terrain. What’s different is scale— the sheer brazenness of some of the alleged conduct—and ultimately its effect. According to DOJ leadership, some investigations now involve millions of documents withheld or produced so late that meaningful review becomes nearly impossible. Internal communications disappear because they were sent on “ephemeral” platforms. Entire categories of evidence are swept into privilege claims that are difficult to challenge in real time.
The result is not a dramatic courtroom loss for the government. It’s a quiet erosion: enforcement that slows, grows more expensive, and possibly never fully materializes.
DOJ’s Response: Focusing on the Friction
The Antitrust Division has begun to name the problem directly. Officials have begun describing these tactics as “gamesmanship” and signaling that compliance with investigative obligations is no longer a side issue—it’s central to enforcement itself.
That shift is reflected in DOJ’s new internal focus (and the announcement of its “Comply with Care” task force) on discovery conduct, preservation practices, and privilege assertions during merger reviews and antitrust investigations. The message is subtle but firm: procedural maneuvering that undermines the fact-finding process will draw scrutiny of its own.
Importantly, this isn’t framed as a rejection of zealous advocacy. DOJ has been careful to acknowledge the role of defense counsel and the importance of legal rights. The concern is narrower, and more structural. When procedural friction becomes a strategy rather than a byproduct, it changes who bears the cost of enforcement delays.
What’s at Stake
These disputes are not inside-the-Beltway skirmishes over privilege logs and production timelines. The downstream effects are real. Antitrust enforcement already operates under tight resource constraints. When investigations are slowed or narrowed through procedural tactics, agencies are forced to make hard choices about how to allocate time and resources. And those choices could have a material impact on complex fact intensive investigations that depend on the synthesis of enormous volumes of documents in a compressed time frame. If the government doesn’t get the key documents, enforcement activity inevitably will be frustrated. For these reasons, the hard choices the DOJ (and other agencies) will be forced to make by these tactics don’t just affect the government—they shape which markets face meaningful enforcement and which do not. It’s also not only the government that encounters these problems: private enforcers face them too, which is particularly concerning since competitors, and consumers often lack comparable resources to the largest companies and the firms that represent them.
Over time, that dynamic can reinforce existing power imbalances. Well-resourced firms can absorb delay and complexity. Smaller competitors, potential entrants, and consumers often cannot. Even when no rule is technically broken, the practical impact looks a lot like under-enforcement.
Where this Leaves Us
Whether the DOJ’s push leads to lasting change remains to be seen. Courts will continue to referee disputes over privilege and compliance, and companies will continue to test the boundaries of advocacy. But the broader point is already clear. Antitrust enforcement doesn’t only fail when cases are lost. Its efficacy diminishes when the process itself becomes a bottleneck—quietly, incrementally, and largely out of public view.
And as with many antitrust problems, by the time the effects are obvious, the damage is often already done.
