Levitte v. Google Inc.
Declaration of Leo P. Norton in Support of 88 MOTION For Administrative Relief to Modify Case Management Schedule filed byGoogle Inc.. (Related document(s) 88 ) (Norton, Leo) (Filed on 6/23/2010)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP A T T O R N E Y S A T LAW S A N DI E G O COOLEY LLP MICHAEL G. RHODES (116127) (firstname.lastname@example.org) LEO P. NORTON (216282) (email@example.com) 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 COOLEY LLP PETER J. WILLSEY (admitted pro hac vice) (firstname.lastname@example.org) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re Google AdWords Litigation Case No. 08-cv-03369 JW HRL DECLARATION OF LEO P. NORTON IN SUPPORT OF DEFENDANT GOOGLE INC.'S UNOPPOSED MOTION FOR ADMINISTRATIVE RELIEF TO MODIFY CASE MANAGEMENT SCHEDULE DECL. OF LEO P. NORTON I/S/O MOTION TO MODIFY CASE SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP A T T O R N E Y S A T LAW S A N DI E G O I, Leo P. Norton, declare: 1. I am an attorney licensed to practice law in the State of California, and I am admitted to practice before this Court. I am an associate with the law firm of Cooley LLP, attorneys for Defendant Google Inc. in this action. As an attorney for Google, I have personal knowledge of the facts set forth in this Declaration, and if called upon to testify, I could and would testify competently thereto. 2. The parties respectfully request a 90-day extension of the current case management deadlines. The primary reason for the requested extension is that Google has voluntarily agreed to supplement its document production regarding certain historical webpages and certain data relating to the named plaintiffs' advertisements. The information was not previously produced because it is not reasonably accessible in Google's databases. Google will nevertheless undertake the substantial burden (including substantial engineering time and computer hours) to obtain the information from its raw data logs. The information is not readily accessible, and may take Google several weeks to obtain and produce. Additionally, a brief extension will allow the noticed party depositions and expert discovery to occur with the benefit of such documents. Finally, a brief extension will accommodate the parties continued meet-andconfer efforts regarding their respective discovery disputes and any remaining discovery. 3. This consolidated action is a nationwide putative class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs assert claims for alleged violation of California Business and Professions Code sections 17200 and 17500 relating to Google's AdWords program for advertisers. Plaintiffs allege that Google has harmed plaintiffs and the putative class by charging them for clicks on advertisements that Google placed on parked domains and error webpages. 4. By orders dated February 25, 2009, the Court consolidated four related class actions under the above caption, appointed interim lead class counsel, and bifurcated class and merits discovery. On April 24, 2009, plaintiffs filed their consolidated complaint. On May 18, 2009, Google filed its answer to the consolidated complaint. 5. The parties then promptly commenced discovery. The parties exchanged initial 1. DECL. OF LEO P. NORTON I/S/O MOTION TO MODIFY CASE SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP A T T O R N E Y S A T LAW S A N DI E G O disclosures on June 11, 2009. Plaintiffs served document requests on Google on May 27, 2009, to which Google responded on July 13, 2009. Google also served document requests and interrogatories on plaintiffs on July 13, 2009. Plaintiffs served responses and objections to Google's document requests and interrogatories on September 18, 2009. 6. During this time, the parties negotiated (1) a document production protocol governing the format of the parties' document production; (2) a Stipulated Protective Order, entered by the Court on August 31, 2009, and (3) a Stipulated Expert Witness Discovery Order, filed with the Court on August 31, 2009, but not yet entered by the Court. 7. In response to plaintiffs' document requests, Google commenced a rolling production of documents in November 2009, with additional productions occurring in December 2009, January 2010, March 2010, and April 2010 amounting to over 775,000 images as of April 2, 2010. 8. 9. Plaintiffs made a document production of their own in December 2010. Plaintiff Bolaji Olabode was added as a named plaintiff to the consolidated action by stipulation and order dated October 2, 2009. Plaintiff Olabode was later dropped as a party after he died, and plaintiffs West Coast Cameras, Inc. and Richard Oesterling were added in his place by order dated February 17, 2010. Pursuant to that order, plaintiffs filed an amended complaint on February 22, 2010, and Google filed an amended answer on March 4, 2010. Also on March 4, 2010, plaintiffs supplemented their initial disclosures and plaintiffs West Coast Cameras, Inc. and Richard Oesterling responded to Google's written discovery. 10. In March 2010, Google raised various issues with plaintiffs' responses to Google's first set of interrogatories. After meeting and conferring, plaintiffs agreed to supplement their responses, which they did in April 2010. Certain of the plaintiffs also voluntarily supplemented their responses to Google's requests for production. Plaintiffs also voluntarily supplemented their document production in May 2010. 11. On May 7 and 12, 2010, plaintiffs raised certain issues with Google's document production. The parties met and conferred over the next several weeks in an effort to resolve certain of those issues without Court intervention. Google agreed to voluntarily supplement its 2. DECL. OF LEO P. NORTON I/S/O MOTION TO MODIFY CASE SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP A T T O R N E Y S A T LAW S A N DI E G O production as to certain requests, and accordingly made a supplemental production on May 24, 2010, bringing the total images Google has produced to date to over 780,000. 12. From February 2010 to May 2010, plaintiffs propounded five sets of interrogatories totaling 51 interrogatories and a second set of document requests comprised of one additional document request. As of June 18, 2010, Google has served responses to each of plaintiffs' five sets of interrogatories and second set of document requests. In April 2010 and continuing through the present, plaintiffs have raised issues with certain of Google's responses. After meeting and conferring, Google agreed to supplement certain interrogatories. Google last served supplemental responses on June 17, 2010. 13. The parties have noticed the depositions of eight fact witnesses--each of the six named plaintiffs and two Google witnesses (Google 30(b)(6) deposition and deposition of Google employee Jonathan Alferness). Absent modification of the current case management schedule, the depositions are currently set to begin on June 30, 2010 and continue through July 16, 2010. Without a brief extension, depositions of these fact witnesses would likely occur without the benefit of the certain historical webpages and certain data regarding plaintiffs' advertisements placed on parked domains and error webpages that Google will produce in the next several weeks. 14. To date the parties have been able to resolve their discovery disputes without burdening the Court with discovery motions. Recently, to resolve various discovery disputes, Google has agreed to supplement its document production regarding certain historical webpages and certain data relating to the named plaintiffs' advertisements placed on parked domains and errors web pages. The information was not previously produced because it is not reasonably accessible in Google's databases. Google will nevertheless undertake the substantial burden to obtain the information from its raw data logs. But doing so will take time, and require substantial engineering time and computer hours. Google estimates that it may take several weeks to obtain the requested information. 15. The parties agree that the currently scheduled depositions and contemplated expert discovery should take place after Google's supplemental document production. Also, a brief 3. DECL. OF LEO P. NORTON I/S/O MOTION TO MODIFY CASE SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP A T T O R N E Y S A T LAW S A N DI E G O extension will allow the parties additional time to attempt to resolve any outstanding discovery disputes and complete any limited remaining discovery. Accordingly, the parties request an approximately 90-day extension of the current case management schedule. 16. I have met and conferred with plaintiffs' counsel regarding this motion, and plaintiffs do not oppose this motion and respectfully request that the Court enter the proposed order submitted concurrently herewith. 17. The parties agree that absent unforeseen and extraordinary circumstances, they will not seek any further extensions of the class certification case management deadlines. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on June 23, 2010, at San Diego, California. /s/Leo P. Norton Leo P. Norton 677359 /SD 4. DECL. OF LEO P. NORTON I/S/O MOTION TO MODIFY CASE SCHEDULE CASE NO. 08-CV-03369 JW HRL