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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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IN RE: GOOGLE ANDROID CONSUMER
PRIVACY LITIGATION
No. M 11-02264 JSW
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For the Northern District of California

United States District Court

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This Order Relates to:

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ALL CASES

MDL No. 2264
PRETRIAL ORDER AND
AGENDA FOR INITIAL CASE
MANAGEMENT CONFERENCE

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The Judicial Panel on Multidistrict Litigation (JPML) has transferred to this Court for

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coordinated pretrial proceedings nine actions relating to (1) Google’s Android mobile device

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operating system; (2) the information that devices running Android or that applications

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downloaded to those devices collect, store, and transfer; and (3) the propriety of Google’s

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alleged handling and use of that information, including, but not limited to, allegedly tracking

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the physical location of user’s phones without the user’s consent.

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As the number and complexity of these actions warrant holding a single, coordinated

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initial status conference for all actions in In Re: Google Android Consumer Privacy Litigation,

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MDL No. 2264, the Court ORDERS as follows:

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1.

APPLICABILITY OF ORDER: Prior to entry of a comprehensive order

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governing all further proceedings in this case, the provisions of this Order shall govern the

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practice and procedure in those actions that were transferred to this Court by the JPML. This

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Order also applies to all related actions filed in all divisions of the Northern District of

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California and all “tag-along actions” later filed in, removed to, or transferred to this Court.

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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

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this Court, or directly filed in the Northern District of California, will automatically be

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consolidated with this action without the necessity of future motions or orders. This

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consolidation does not constitute a determination that the actions should be consolidated for

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trial, nor does it have the effect of making any entity a party to any action in which he, she or it

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has not been named, served or added in accordance with the Federal Rules of Civil Procedure.

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For the Northern District of California

United States District Court

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3.

DATE OF INITIAL STATUS CONFERENCE AND AGENDA FOR

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CONFERENCE: Matters relating to pretrial and discovery proceedings in these cases will be

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addressed at an initial status conference to be held on Friday, September 23, 2011 at 9:00 a.m.

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before Judge Jeffrey S. White in Courtroom 11, 19th Floor, United States Courthouse, 450

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Golden Gate Avenue, San Francisco, California. Counsel are expected to familiarize

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themselves with the Manual for Complex Litigation, Fourth (“MCL 4th”) and be prepared at the

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conference to suggest procedures that will facilitate the expeditious, economical and just

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resolution of this litigation. The agenda for the conference is set forth below, at paragraph 12.

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4.

INITIAL CONFERENCE APPEARANCES: Each party represented by counsel

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shall appear at the initial status conference through the party’s attorney who will have primary

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responsibility for the party’s interest in this litigation. Parties not represented by counsel may

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appear in person or through an authorized and responsible agent. To minimize costs and

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facilitate a manageable conference, parties with similar interests may agree, to the extent

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practicable, to have an attending attorney represent the party’s interest at the conference. A

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party will not by designating an attorney to represent the party’s interest at the conference be

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precluded from other representation during the litigation, nor will attendance at the conference

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waive objections to jurisdiction, venue or service.

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5.

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STAY OF DISCOVERY: Pending further order of this Court, all discovery is

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MASTER DOCKET FILE: The Clerk of the Court will maintain a master docket

stayed.

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2264 JSW, and the identification of “MDL No. 2264.” When a pleading is intended to apply to

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all actions, this shall be indicated by the words: “This Document Relates to All Cases.” When a

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For the Northern District of California

case file under the style “In Re: Google Android Consumer Privacy Litigation,” No. M 11-

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United States District Court

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pleading is intended to apply to fewer than all cases, this Court’s docket number of each

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individual case to which the document relates shall appear immediately after the words “This

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Document Relates to.”

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7.

FILING: This case is subject to Electronic Case Filing (“ECF”), pursuant to

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General Order 45, Section VI of which requires that all documents in such a case be filed

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electronically. General Order 45 provides at Section IV(A) that “Each attorney of record is

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obligated to become an ECF User and be assigned a user ID and password for access to the

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system upon designation of the action as being subject to ECF.” If she or she has not already

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done so, counsel shall register forthwith as an ECF user and be issued an ECF user ID and

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password. Forms and instructions can be found on the Court’s web site at

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ecf.cand.uscourts.gov.

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All documents shall be e-filed in the master file, No. M 11-2264 JSW. Documents that

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pertain to one or only some of the pending actions shall also be e-filed in the individual case(s)

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to which the documents pertain.

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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
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Northern District of California or transferred here from another court, the Clerk of this Court

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shall:

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a.

File a copy of this Order in the separate file for such action;

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b.

Make an appropriate entry on the master docket sheet;

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c.

Mail to the attorneys for the plaintiff in the newly filed or transferred case a copy

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of this Order; and
d.

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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.

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9.

APPEARANCES: Counsel who appeared in a transferor court prior to transfer

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For the Northern District of California

United States District Court

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need not enter an additional appearance before this Court. Moreover, attorneys admitted to

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practice and in good standing in any United States District Court are admitted pro hac vice in

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this litigation, and the requirements of Northern District of California Local Rule 11-3 are

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waived. Association of local counsel is not required.

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10.

PRESERVATION OF EVIDENCE: All parties and their counsel are reminded

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of their duty to preserve evidence that may be relevant to this action. The duty extends to

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documents, data and tangible things in the possession, custody and control of the parties to this

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action, and any employees, agents, contractors, carriers, bailees, or other non-parties who

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possess materials reasonably anticipated to be subject to discovery in this action. “Documents,

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data and tangible things” shall be interpreted broadly to include writings, records, files,

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correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice

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mail, e-mail, telephone message records or logs, computer and network activity logs, hard

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drives, backup data, removable computer storage media such as tapes, discs and cards,

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printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers,

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journals, orders, invoices, bills, vouchers, checks statements, worksheets, summaries,

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compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts,

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digital or chemical process photographs, video, phonographic, tape or digital recordings, or
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transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such

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material. Information that serves to identify, locate or link such material, such as file

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inventories, file folders, indices, and metadata, is also included in this definition. Until the

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parties agree on a preservation plan or the Court orders otherwise, each party shall take

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reasonable steps to preserve all documents, data and tangible things containing information

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potentially relevant to the subject matter of this litigation. Counsel is under an obligation to the

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Court to exercise all reasonable efforts to identify and notify parties and non-parties, including

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employees of corporate or institutional parties.

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11.

FILING OF DISCOVERY REQUESTS: In accordance with Rule 5(d) of the

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For the Northern District of California

United States District Court

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Federal Rules of Civil Procedure, discovery requests and responses are not to be filed with the

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Clerk nor sent to the Judge’s Chambers, except to the extent needed in connection with a

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motion.

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12.

AGENDA FOR SEPTEMBER 23, 2011 STATUS CONFERENCE: The items

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listed in MCL 4th Sections 22.61, 22.62 and 22.63 will be addressed generally at the

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conference. In addition, the Court intends to address the following specific items at the initial

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status conference:

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a.

Interim Class Counsel: The Court intends to appoint Interim Class Counsel, who

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will be charged with administrative responsibilities arising from the pretrial coordination of

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these multiple actions, including communication with the Court. Counsel for the plaintiffs shall

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confer and seek consensus on the selection of a candidate for the position of Interim Class

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Counsel. Should consensus not be reached, the Court shall hear a motion on appointment of

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Interim Class Counsel pursuant to Federal Rule of Civil Procedure 23(g).

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Interim Class Counsel shall be required to maintain complete files with copies of all

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documents served upon them and shall make such files available to parties upon request.

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Interim Class Counsel will also be authorized to receive orders and notices from the Judicial
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Panel on Multi District Litigation pursuant to Rule 5.2(e) of the JPML’s Rules of Procedure or

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from the transferee court on behalf of all parties and shall be responsible for the preparation and

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transmittal of copies of such orders and notices to the parties. The expenses incurred in

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performing the services of Interim Class Counsel shall be shared equally by all members of the

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plaintiff group in a manner agreeable to the parties or set by the Court failing such agreement.

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b.

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Consolidated Master Class Action Complaint: Within 30 days following the

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appointment of Interim Class Counsel, Plaintiffs shall file a consolidated master class action

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complaint.

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For the Northern District of California

United States District Court

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c.

Monthly statements regarding time spent and costs advanced: All attorneys who

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may ever seek the award of fees or reimbursement of costs in connection with this litigation

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shall keep files contemporaneously documenting all time spent, including tasks performed, and

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expenses incurred. The Court will consult with Interim Class Counsel concerning how and

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where these files shall be preserved pending completion of the litigation.

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d.

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Discovery: Counsel should be prepared to discuss mechanisms for coordinating

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discovery.1 The parties have agreed, and the Court endorses the stipulation, that Rule 26 initial

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disclosures shall be optional. No duties with regard to discovery shall arise until after Interim

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Class Counsel has been appointed, the consolidated master class action complaint has been

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filed, the Court has ruled on Google’s anticipated motion to dismiss, and the parties thereafter

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conduct a conference pursuant to Federal Rule of Civil Procedure 26(f). The parties may, but

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are not required, to provide advance courtesy copies of discovery, which, regardless, will not

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affect further discovery proceedings. The fact discovery period shall open after the Rule 26(f)

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conference and shall remain open for a period no longer than six months in duration. Fact

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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.
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discovery shall be followed by a separate expert discovery period to last no more than four

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months in duration.

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e.

Protective Order: Counsel shall also be prepared to discuss a stipulated

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protective order and, if possible, present one to the Court for its consideration. In the event a

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stipulation cannot be reached, the Court will execute a protective order generally in the form to

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the Northern District of California’s model stipulated protective order unless/until the parties

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present the Court with a joint submission.

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f.

Settlement and ADR: The parties shall be prepared to address the timing and

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For the Northern District of California

United States District Court

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appropriateness of ADR options, to occur after the appointment of Interim Class Counsel and

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the filing of the consolidated master class action complaint.

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g.

Schedule: Google shall file its motion to dismiss within 45 days after Plaintiffs

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file their consolidated master class action complaint. Plaintiffs shall have 45 days thereafter to

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file their opposition. Google shall file a reply within 30 days thereafter. The Court shall set a

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date for a hearing on the motion to dismiss, if necessary. After adjudication of the motion to

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dismiss, if necessary, the Court shall conduct a further status conference to set further dates.

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Plaintiffs shall file their motion for class certification as early as practicable, with the briefing

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subject to the parties’ stipulation and the Court’s approval.

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IT IS SO ORDERED.

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Dated: September 21, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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