Benjamin Joffe, et al v. Google Inc.

Filing 5

Filed (ECF) Petitioner Google Inc. Motion for miscellaneous relief [Motion for Leave to File Reply in Support of Petition for Permission to Appeal Pursuant to 28 U.S.C. Section 1292(b)]. Date of service: 08/16/2011. [7860673] (MHR)

Case No. 11-80186

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re Google Inc. Street View Electronic
Communications Litigation
GOOGLE INC.’S MOTION FOR LEAVE TO FILE REPLY BRIEF IN
SUPPORT OF PETITION FOR PERMISSION TO APPEAL PURSUANT
TO 28 U.S.C. § 1292(b)
Petition from the United States District Court
for the Northern District of California, Case No. 10-MD-2184 JW
Hon. James Ware, District Judge
David H. Kramer
Michael H. Rubin
Bart E. Volkmer
Caroline E. Wilson
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
[phone]
Counsel for Petitioner Google Inc.

TABLE OF AUTHORITIES
Cases

Page(s)

Alliance of Auto. Mfrs. v. Sullivan, No. 09-8013,
(1st Cir. 2009) ..................................................................................... 3
E.E.O.C. v. Sidley Austin LLP, No. 06-8002,
437 F.3d 695 (7th Cir. 2006) .............................................................. 3
In re Application of the United States for an Order
Authorizing the Roving Interception of Oral
Communications, 349 F.3d 1132 (9th Cir. 2003) ............................. 2
Pac. Merch. Shipping Assoc. v. Goldstene, No. 09-80145,
Docket No. 7 (9th Cir. Dec. 11, 2009) ................................................ 3
State Farm Mut. Auto. Ins. Co. v. Boellstorff, No. 07-500,
(10th Cir. 2007)................................................................................... 3
Statutes
28 U.S.C. § 1292(b) .............................................................................. 1, 3, 4
Rules
Fed R. App. P. 5 ........................................................................................... 1

i

Petitioner Google Inc. (“Google”) respectfully moves for leave to
file the reply brief submitted herewith in support of its Petition for
Permission to Appeal Pursuant to 28 U.S.C. § 1292(b).
In support of its motion, Google states as follows:
1.

On July 27, 2011, pursuant to 28 U.S.C. § 1292(b) and Fed

R. App. P. 5, Google filed its Petition for Permission to Appeal
(“Petition”) from the district court’s order of June 29, 2011 denying
Google’s motion to dismiss plaintiffs’ claim for relief under the federal
Wiretap Act (“June 29 Order”).
2.

On August 8, 2011, plaintiffs Benjamin Joffe, et al. filed a

response to Google’s Petition. See Docket No. 3 (“Opp’n Brief”).
3.

Notwithstanding the Court’s recent decision in Reese and the

district court’s findings that this is “a case of first impression . . .
[regarding] a novel question of statutory interpretation” that “fails to
yield a definitive and unambiguous result,” (June 29 Order at 7-8, 13),
and that, “in light of the novelty of the issues presented, . . . there is a
credible basis for a difference of opinion” (July 18, 2011 Certification
Order at 2), plaintiffs assert that the district court’s interpretation of
the Wiretap Act “involved nothing ‘novel’ or ‘difficult.’” Opp’n Brief at 9.
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4.

Plaintiffs oppose Google’s Petition on the basis that there is

no “substantial ground for difference of opinion” regarding the proper
interpretation of the term “radio communication” as used in the federal
Wiretap Act because controlling law dictated the district court’s ruling.
Opp’n Brief at 7-20. Plaintiffs cite In re Application of the United States
for

an

Order

Authorizing

the

Roving

Interception

of

Oral

Communications, 349 F.3d 1132, 1139 (9th Cir. 2003) as that
controlling precedent. Any claim that In re United States is controlling
is wrong. The case finds that cellular telephone calls are protected as
“wire communications” under the Wiretap Act. That observation in no
way forecloses the possibility that plaintiffs’ open and unencrypted WiFi transmissions, alleged to be “electronic communications,” are also
“radio communications” under the Wiretap Act.
5.

Plaintiffs did not cite In re United States in opposition to

Google’s Motion for Certification in the district court, and have never
argued that it is controlling on the certified question before.
6.

Google believes that a short reply is appropriate in order to

address plaintiffs’ ill-considered arguments and to explain that In re
United States actually undercuts a core tenant of the June 29 Order,
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thereby emphasizing that there is a substantial ground for difference of
opinion concerning the district court’s Wiretap Act ruling. Such a reply
brief will assist the Court by clarifying why this case is appropriate for
review. Similar briefs are regularly permitted by this Court and other
Courts of Appeals. See, e.g., Pac. Merch. Shipping Assoc. v. Goldstene,
No. 09-80145, Docket No. 7 (9th Cir. Dec. 11, 2009) (granting leave to
file a reply and granting the associated petition for permission to appeal
pursuant to 28 U.S.C. §1292(b)); E.E.O.C. v. Sidley Austin LLP, No. 068002, 437 F.3d 695, 696 (7th Cir. 2006) (same); State Farm Mut. Auto.
Ins. Co. v. Boellstorff, No. 07-500 (10th Cir. 2007) (same); Alliance of
Auto. Mfrs. v. Sullivan, No. 09-8013 (1st Cir. 2009) (same).
7.

The

undersigned

contacted

counsel for

plaintiffs via

telephone on August 16, 2011 to request their consent to the filing of a
reply. Plaintiffs denied that request.
8.

For these reasons, Google respectfully requests leave to file

the proposed reply brief attached hereto.
WHEREFORE, Petitioner Google Inc. respectfully requests that
this Court enter an Order granting this Motion and accepting for filing
Google’s Reply in Support of its Petition for Permission to Appeal
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Pursuant to 28 U.S.C. §1292(b) from the district court’s order of June
29, 2011 denying Google’s motion to dismiss plaintiffs’ claim for relief
under the federal Wiretap Act.

Dated: August 16, 2011

Respectfully submitted,
/s/ Michael H. Rubin
David H. Kramer
Michael H. Rubin
Bart E. Volkmer
Caroline E. Wilson
WILSON SONSINI GOODRICH &
ROSATI
650 Page Mill Road
Palo Alto, CA 94304
[phone]
Counsel for Petitioner Google Inc.

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