Pessano et al v. Google, Inc.

Filing 13

PRETRIAL ORDER AND AGENDA FOR INITIAL CASE MANAGEMENT CONFERENCE. Signed by Judge JEFFREY S. WHITE on 9/21/11. (jjoS, COURT STAFF) (Filed on 9/21/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 IN RE: GOOGLE ANDROID CONSUMER PRIVACY LITIGATION No. M 11-02264 JSW / 11 For the Northern District of California United States District Court 10 12 This Order Relates to: 13 ALL CASES MDL No. 2264 PRETRIAL ORDER AND AGENDA FOR INITIAL CASE MANAGEMENT CONFERENCE 14 / 15 16 The Judicial Panel on Multidistrict Litigation (JPML) has transferred to this Court for 17 coordinated pretrial proceedings nine actions relating to (1) Google’s Android mobile device 18 operating system; (2) the information that devices running Android or that applications 19 downloaded to those devices collect, store, and transfer; and (3) the propriety of Google’s 20 alleged handling and use of that information, including, but not limited to, allegedly tracking 21 the physical location of user’s phones without the user’s consent. 22 As the number and complexity of these actions warrant holding a single, coordinated 23 initial status conference for all actions in In Re: Google Android Consumer Privacy Litigation, 24 MDL No. 2264, the Court ORDERS as follows: 25 26 1. APPLICABILITY OF ORDER: Prior to entry of a comprehensive order 27 governing all further proceedings in this case, the provisions of this Order shall govern the 28 practice and procedure in those actions that were transferred to this Court by the JPML. This 1 Order also applies to all related actions filed in all divisions of the Northern District of 2 California and all “tag-along actions” later filed in, removed to, or transferred to this Court. 3 4 2. CONSOLIDATION: The civil actions transferred to this Court are consolidated for pretrial purposes only. Any “tag-along actions” later filed in, removed to, or transferred to 6 this Court, or directly filed in the Northern District of California, will automatically be 7 consolidated with this action without the necessity of future motions or orders. This 8 consolidation does not constitute a determination that the actions should be consolidated for 9 trial, nor does it have the effect of making any entity a party to any action in which he, she or it 10 has not been named, served or added in accordance with the Federal Rules of Civil Procedure. 11 For the Northern District of California United States District Court 5 12 3. DATE OF INITIAL STATUS CONFERENCE AND AGENDA FOR 13 CONFERENCE: Matters relating to pretrial and discovery proceedings in these cases will be 14 addressed at an initial status conference to be held on Friday, September 23, 2011 at 9:00 a.m. 15 before Judge Jeffrey S. White in Courtroom 11, 19th Floor, United States Courthouse, 450 16 Golden Gate Avenue, San Francisco, California. Counsel are expected to familiarize 17 themselves with the Manual for Complex Litigation, Fourth (“MCL 4th”) and be prepared at the 18 conference to suggest procedures that will facilitate the expeditious, economical and just 19 resolution of this litigation. The agenda for the conference is set forth below, at paragraph 12. 20 21 4. INITIAL CONFERENCE APPEARANCES: Each party represented by counsel 22 shall appear at the initial status conference through the party’s attorney who will have primary 23 responsibility for the party’s interest in this litigation. Parties not represented by counsel may 24 appear in person or through an authorized and responsible agent. To minimize costs and 25 facilitate a manageable conference, parties with similar interests may agree, to the extent 26 practicable, to have an attending attorney represent the party’s interest at the conference. A 27 party will not by designating an attorney to represent the party’s interest at the conference be 28 2 1 precluded from other representation during the litigation, nor will attendance at the conference 2 waive objections to jurisdiction, venue or service. 3 5. 5 STAY OF DISCOVERY: Pending further order of this Court, all discovery is 6. 4 MASTER DOCKET FILE: The Clerk of the Court will maintain a master docket stayed. 6 7 2264 JSW, and the identification of “MDL No. 2264.” When a pleading is intended to apply to 10 all actions, this shall be indicated by the words: “This Document Relates to All Cases.” When a 11 For the Northern District of California case file under the style “In Re: Google Android Consumer Privacy Litigation,” No. M 11- 9 United States District Court 8 pleading is intended to apply to fewer than all cases, this Court’s docket number of each 12 individual case to which the document relates shall appear immediately after the words “This 13 Document Relates to.” 14 15 7. FILING: This case is subject to Electronic Case Filing (“ECF”), pursuant to 16 General Order 45, Section VI of which requires that all documents in such a case be filed 17 electronically. General Order 45 provides at Section IV(A) that “Each attorney of record is 18 obligated to become an ECF User and be assigned a user ID and password for access to the 19 system upon designation of the action as being subject to ECF.” If she or she has not already 20 done so, counsel shall register forthwith as an ECF user and be issued an ECF user ID and 21 password. Forms and instructions can be found on the Court’s web site at 22 ecf.cand.uscourts.gov. 23 All documents shall be e-filed in the master file, No. M 11-2264 JSW. Documents that 24 pertain to one or only some of the pending actions shall also be e-filed in the individual case(s) 25 to which the documents pertain. 26 27 28 8. DOCKETING NEW CASES: When an action that properly belongs as part of In Re: Google Android Consumer Privacy Litigation is filed after the date of this Order in the 3 1 Northern District of California or transferred here from another court, the Clerk of this Court 2 shall: 3 a. File a copy of this Order in the separate file for such action; 4 b. Make an appropriate entry on the master docket sheet; 5 c. Mail to the attorneys for the plaintiff in the newly filed or transferred case a copy 6 7 of this Order; and d. 8 Upon the first appearance of any new defendant, mail to the attorneys for the defendant in such newly filed or transferred cases a copy of this Order. 9 9. APPEARANCES: Counsel who appeared in a transferor court prior to transfer 11 For the Northern District of California United States District Court 10 need not enter an additional appearance before this Court. Moreover, attorneys admitted to 12 practice and in good standing in any United States District Court are admitted pro hac vice in 13 this litigation, and the requirements of Northern District of California Local Rule 11-3 are 14 waived. Association of local counsel is not required. 15 16 10. PRESERVATION OF EVIDENCE: All parties and their counsel are reminded 17 of their duty to preserve evidence that may be relevant to this action. The duty extends to 18 documents, data and tangible things in the possession, custody and control of the parties to this 19 action, and any employees, agents, contractors, carriers, bailees, or other non-parties who 20 possess materials reasonably anticipated to be subject to discovery in this action. “Documents, 21 data and tangible things” shall be interpreted broadly to include writings, records, files, 22 correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice 23 mail, e-mail, telephone message records or logs, computer and network activity logs, hard 24 drives, backup data, removable computer storage media such as tapes, discs and cards, 25 printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, 26 journals, orders, invoices, bills, vouchers, checks statements, worksheets, summaries, 27 compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, 28 digital or chemical process photographs, video, phonographic, tape or digital recordings, or 4 1 transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such 2 material. Information that serves to identify, locate or link such material, such as file 3 inventories, file folders, indices, and metadata, is also included in this definition. Until the 4 parties agree on a preservation plan or the Court orders otherwise, each party shall take 5 reasonable steps to preserve all documents, data and tangible things containing information 6 potentially relevant to the subject matter of this litigation. Counsel is under an obligation to the 7 Court to exercise all reasonable efforts to identify and notify parties and non-parties, including 8 employees of corporate or institutional parties. 9 11. FILING OF DISCOVERY REQUESTS: In accordance with Rule 5(d) of the 11 For the Northern District of California United States District Court 10 Federal Rules of Civil Procedure, discovery requests and responses are not to be filed with the 12 Clerk nor sent to the Judge’s Chambers, except to the extent needed in connection with a 13 motion. 14 15 12. AGENDA FOR SEPTEMBER 23, 2011 STATUS CONFERENCE: The items 16 listed in MCL 4th Sections 22.61, 22.62 and 22.63 will be addressed generally at the 17 conference. In addition, the Court intends to address the following specific items at the initial 18 status conference: 19 20 a. Interim Class Counsel: The Court intends to appoint Interim Class Counsel, who 21 will be charged with administrative responsibilities arising from the pretrial coordination of 22 these multiple actions, including communication with the Court. Counsel for the plaintiffs shall 23 confer and seek consensus on the selection of a candidate for the position of Interim Class 24 Counsel. Should consensus not be reached, the Court shall hear a motion on appointment of 25 Interim Class Counsel pursuant to Federal Rule of Civil Procedure 23(g). 26 Interim Class Counsel shall be required to maintain complete files with copies of all 27 documents served upon them and shall make such files available to parties upon request. 28 Interim Class Counsel will also be authorized to receive orders and notices from the Judicial 5 1 Panel on Multi District Litigation pursuant to Rule 5.2(e) of the JPML’s Rules of Procedure or 2 from the transferee court on behalf of all parties and shall be responsible for the preparation and 3 transmittal of copies of such orders and notices to the parties. The expenses incurred in 4 performing the services of Interim Class Counsel shall be shared equally by all members of the 5 plaintiff group in a manner agreeable to the parties or set by the Court failing such agreement. 6 b. 7 Consolidated Master Class Action Complaint: Within 30 days following the 8 appointment of Interim Class Counsel, Plaintiffs shall file a consolidated master class action 9 complaint. 11 For the Northern District of California United States District Court 10 c. Monthly statements regarding time spent and costs advanced: All attorneys who 12 may ever seek the award of fees or reimbursement of costs in connection with this litigation 13 shall keep files contemporaneously documenting all time spent, including tasks performed, and 14 expenses incurred. The Court will consult with Interim Class Counsel concerning how and 15 where these files shall be preserved pending completion of the litigation. 16 d. 17 Discovery: Counsel should be prepared to discuss mechanisms for coordinating 18 discovery.1 The parties have agreed, and the Court endorses the stipulation, that Rule 26 initial 19 disclosures shall be optional. No duties with regard to discovery shall arise until after Interim 20 Class Counsel has been appointed, the consolidated master class action complaint has been 21 filed, the Court has ruled on Google’s anticipated motion to dismiss, and the parties thereafter 22 conduct a conference pursuant to Federal Rule of Civil Procedure 26(f). The parties may, but 23 are not required, to provide advance courtesy copies of discovery, which, regardless, will not 24 affect further discovery proceedings. The fact discovery period shall open after the Rule 26(f) 25 conference and shall remain open for a period no longer than six months in duration. Fact 26 27 28 Discovery in the related action, Yuncker v. Pandora Media, Inc., No. CV 11-03113 JSW, shall also proceed along the same schedule as set forth above. 1 6 1 discovery shall be followed by a separate expert discovery period to last no more than four 2 months in duration. 3 4 e. Protective Order: Counsel shall also be prepared to discuss a stipulated 5 protective order and, if possible, present one to the Court for its consideration. In the event a 6 stipulation cannot be reached, the Court will execute a protective order generally in the form to 7 the Northern District of California’s model stipulated protective order unless/until the parties 8 present the Court with a joint submission. 9 f. Settlement and ADR: The parties shall be prepared to address the timing and 11 For the Northern District of California United States District Court 10 appropriateness of ADR options, to occur after the appointment of Interim Class Counsel and 12 the filing of the consolidated master class action complaint. 13 14 g. Schedule: Google shall file its motion to dismiss within 45 days after Plaintiffs 15 file their consolidated master class action complaint. Plaintiffs shall have 45 days thereafter to 16 file their opposition. Google shall file a reply within 30 days thereafter. The Court shall set a 17 date for a hearing on the motion to dismiss, if necessary. After adjudication of the motion to 18 dismiss, if necessary, the Court shall conduct a further status conference to set further dates. 19 Plaintiffs shall file their motion for class certification as early as practicable, with the briefing 20 subject to the parties’ stipulation and the Court’s approval. 21 22 IT IS SO ORDERED. 23 24 Dated: September 21, 2011 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 25 26 27 28 7

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