In re Google RTB Consumer Privacy Litigation

Filing 360

DISCOVERY ORDER re 339 341 October 21, 2022 Discovery Dispute. Signed by Magistrate Judge Virginia K. DeMarchi. (vkdlc1, COURT STAFF) (Filed on 11/17/2022)

Case 4:21-cv-02155-YGR Document 360 Filed 11/17/22 Page 1 of 9

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE GOOGLE RTB CONSUMER
PRIVACY LITIGATION

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Case No. 21-cv-02155-YGR (VKD)
ORDER RE OCTOBER 21, 2022
DISCOVERY DISPUTE RE GOOGLE'S
PRIVILEGE ASSERTIONS

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Re: Dkt. No. 339

United States District Court
Northern District of California

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Plaintiffs and defendant Google LLC (“Google”) ask the Court to resolve a dispute

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concerning the sufficiency of Google’s privilege logs and the merits of its privilege assertions.

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Dkt. No. 339. The Court finds this dispute suitable for resolution without oral argument. Civil

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L.R. 7-1(b).
For the reasons explained below, the Court denies without prejudice the relief plaintiffs

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seek and orders further proceedings described in detail below.

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I.

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BACKGROUND
Google’s privilege logs include nearly 10,500 entries. Dkt. No. 339, Exs. 1, 2. Plaintiffs

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challenge 5,470 of these entries as insufficient to support Google’s assertions of attorney-client

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privilege or attorney work product protection. Id. at 1-4. They ask the Court to order Google to

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produce all of the challenged documents, or in the alternative, to supplement its logs with

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additional information regarding Google’s assertions of privilege or work product protection. Id.

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at 1. Google opposes plaintiffs’ challenges to the sufficiency of its privilege log entries on the

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merits and as inconsistent with provisions of the ESI Order entered in this case at Dkt. No. 125.

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Id. at 4-6.

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II.

LEGAL STANDARD
Federal common law generally governs claims of privilege. “But in a civil case, state law

governs privilege regarding a claim or defense for which state law supplies the rule of decision.”

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Fed. R. Evid. 501. In this action, subject matter jurisdiction is premised on federal question
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jurisdiction (28 U.S.C. § 1331) for Counts 9-12, supplemental jurisdiction (28 U.S.C. § 1367) for
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the remaining state law claims, and jurisdiction under the Class Action Fairness Act (28 U.S.C.
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§ 1332(d)) as to the entire action. Dkt. No. 92 ¶¶ 34-36. Where an action asserts both federal and

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state law claims, and the evidence at issue relates to both, federal privilege law applies. Wilcox v.
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Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). No party contends that Google’s disputed privilege

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entries concern documents relevant only to claims or defenses arising under state law.
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Accordingly, federal law governs Google’s assertions of privilege.

United States District Court
Northern District of California

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“The attorney-client privilege protects confidential communications between attorneys
and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina

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Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege extends to a client’s confidential
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disclosures to an attorney in order to obtain legal advice, as well as an attorney’s advice in
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response to such disclosures. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations
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and quotations omitted). “Because it impedes full and free discovery of the truth, the attorneyclient privilege is strictly construed.” Id. (citations and quotations omitted). In the Ninth Circuit,

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whether information is protected by the attorney-client privilege is determined using an eight-part
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test:
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(1) Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at his
instance permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived.

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Sanmina, 968 F.3d at 1116. Where a communication has more than one purpose, it may be

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protected as privileged if the primary purpose of the communication is to give or receive legal

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advice, as opposed to business or some other non-legal advice. In re Grand Jury, 23 F.4th 1088,

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1092-94 (9th Cir. 2021), cert. granted sub nom. In re Jury, No. 21-1397, 2022 WL 4651237 (U.S.

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Oct. 3, 2022) (describing and adopting the “primary purpose” test for dual-purpose
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The attorney work product doctrine protects from discovery materials that are prepared by

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or for a party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). The

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doctrine provides qualified protection against discovery of the legal strategies and mental

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impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508–10 (1947); Upjohn Co. v.

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United States, 449 U.S. 383, 390–91 (1981). It does not protect facts from disclosure unless

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disclosure of those facts would inherently reveal an attorney’s strategies or mental

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impressions. See, e.g., O’Toole v. City of Antioch, No. 11 CV 01502 PJH MEJ, 2015 WL

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1848134, at *3 (N.D. Cal. Apr. 14, 2015); Hamilton v. RadioShack Corp., No. C 11-00888 LB,

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United States District Court
Northern District of California

communications).

2012 WL 2327191, at *4–5 (N.D. Cal. June 18, 2012).
A party claiming that a document or information is privileged or protected from disclosure

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has the burden to establish that the privilege or protection applies. See United States v. Martin,

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278 F.3d 988, 999–1000 (9th Cir. 2002). In particular, a party asserting privilege or work product

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protection must “describe the nature of the documents . . . in a manner that, without revealing

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information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.

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Civ. P. 26(b)(5)(A); see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of

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Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). The Ninth Circuit has held a party meets its burden

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by providing a privilege log that identifies “(a) the attorney and client involved, (b) the nature of

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the document, (c) all persons or entities shown on the document to have received or sent the

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document, (d) all persons or entities known to have been furnished the document or informed of

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its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury

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Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3

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(9th Cir. 1989)). However, a party may substantiate a claim of privilege by other means. Apple

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Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations or other

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proof may establish the purpose of the communication or the specific role of the sender and each

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individual recipient.”). The Advisory Committee Note to Rule 26 provides useful guidance about

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how a party should assert a claim of privilege or protection:

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The party must also provide sufficient information to enable other
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parties to evaluate the applicability of the claimed privilege or
protection. Although the person from whom the discovery is sought
decides whether to claim a privilege or protection, the court
ultimately decides whether, if this claim is challenged,
the privilege or protection applies. Providing information pertinent
to the applicability of the privilege or protection should reduce the
need for in camera examination of the documents.

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The rule does not attempt to define for each case what information
must be provided when a party asserts a claim of privilege or work
product protection. Details concerning time, persons, general
subject matter, etc., may be appropriate if only a few items are
withheld, but may be unduly burdensome when voluminous
documents are claimed to be privileged or protected, particularly if
the items can be described by categories. A party can seek relief
through a protective order under subdivision (c) if compliance with
the requirement for providing this information would be an
unreasonable burden.

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United States District Court
Northern District of California

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Fed. R. Civ. P. 26, Advisory Committee Note to 1980 amendment.
III.

DISCUSSION
Plaintiffs challenge Google’s privilege assertions on several grounds. For the most part,

the parties do not disagree about the law governing the scope of the attorney-client privilege or the
attorney work product doctrine; they disagree about the sufficiency of Google’s showing that the
logged documents are, in fact, privileged or protected as Google claims. Accordingly, the Court
first addresses the parties’ arguments regarding the sufficiency of Google’s privilege logs, and
then discusses the further proceedings necessary to resolve this dispute.
A.

Sufficiency of Google’s Privilege Log Entries

Plaintiffs argue that Google’s privilege logs contain only generic descriptions that do not
enable other parties or the Court to assess its privilege assertions. Dkt. No. 339 at 1. They say
that if the Court does not order Google to produce all documents corresponding to disputed
entries, it should order Google to provide the following additional information for all disputed
entries: (1) the document title or subject line, (2) the positions of the authors and recipients, and
(3) more detail about the issue, regulation, or policy that is the subject of the document. Id. at 2.
Google responds that its privilege log entries are not generic assertions of privilege, but include
descriptions of the subject matter of each privileged document, and that Rule 26(b)(5) does not
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require disclosure of any of the additional information plaintiffs demand. Id. at 4-5. Google also

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argues that plaintiffs ask for information that is inconsistent with the ESI Order entered in this

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action. Id. at 4.
A privilege log is one vehicle by which a party may make a prima facie showing that a

United States District Court
Northern District of California

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privilege or protection applies. In re Grand Jury Investigation, 974 F.2d at 1071; Dole, 889 F.2d

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at 890 (describing other means to assert privilege). Google is correct that the Ninth Circuit does

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not require disclosure of the title or subject line of a document, the organizational positions held

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by its senders or recipients, or a description of the subject matter of the document. See In re

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Grand Jury Investigation, 974 F.2d at 1071 (privilege log that included information on the subject

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matter of each document exceeded what was required). On the other hand, Google’s privilege

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logs do not include, for every disputed entry, all of the information that the Ninth Circuit found

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sufficient for a prima facie showing of privilege in In re Grand Jury Investigation and Dole.

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Consider, for example, the four entries plaintiffs cite in their discussion of this issue:

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Entries #41, #7390, #9028, and #9856. Entries #41 and #9028 include a date, the

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author/custodian’s email address, and a description of the nature of the document and its general

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subject matter; they do not include the author/custodian’s name, the attorney involved, or all

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persons or entities known to have received the document or been informed of its substance.1 Entry

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#7390 is more complete. It includes a date, the author/custodian’s name and email address, the

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recipients’ names and email addresses, and a description of the nature of the document and its

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general subject matter; it does not include the attorney involved. At the other end of the spectrum,

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Entry #9856 includes only a date, a corporate (not individual) author/custodian, and a description

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of the nature of the document and its general subject matter; it does not include the name of the

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person who authored the document, all persons or entities known to have received the document or

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been informed of its substance, or the attorney involved.
Google explains that, as required by the ESI order, its log identifies the author and

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recipients of a privileged communication only where such information is “electronically

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The Court infers that an asterisk next to a name on the privilege log indicates that the person is
an attorney.
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extractable from the relevant document,” and that the description it provides of each document is

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otherwise sufficient. See Dkt. No. 339 at 4, 5 (citing ESI order, Dkt. No. 125 at 8). Google notes

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that the Court rejected plaintiffs’ proposal with respect to redacted documents that “[u]pon

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reasonable request, the Producing Party agrees to provide additional information supporting the

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claim of privilege if it is not clear from the face of the redacted document.” See Dkt. No. 116 at 4;

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Dkt. No. 95 at 3-4, Ex. 1 (sec. 11(d)). Plaintiffs respond that neither the ESI order nor any other

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order defines precisely what the contents of Google’s privilege logs should be or relieves Google

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of its obligation to comply with Rule 26(b)(5)(A). Dkt. No. 339 at 2. Plaintiffs are correct. In

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addressing the parties’ dispute about privilege assertions for ESI, the Court wrote:

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A party claiming privilege or work product protection must describe
the materials being withheld “in a manner that, without revealing
information itself privileged or protected, will enable other parties to
assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). If the parties
disagree about whether a withheld or redacted document is
privileged or protected, they will have to discuss the matter before
bringing the dispute to the Court’s attention, and this discussion may
well involve the exchange of additional information.

United States District Court
Northern District of California

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To the extent plaintiffs’ proposed text is intended as a statement of
what may be necessary to resolve certain disputes about privilege
claims, the Court finds it unnecessary to include such a statement in
the ESI protocol.

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Dkt. No. 116 at 4-5. The joint discovery dispute submission contains no indication that the parties

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have exchanged or discussed any additional information about any of the disputed entries, with the

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possible exception of the distribution list membership information Google says it will provide to

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plaintiffs.

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Given the very large number of logged documents, the Court is sympathetic to Google’s

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argument that it would be unduly burdensome to include for every entry the level of detail that

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might be appropriate when only small numbers of documents are withheld from production. See

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Rule 26, Advisory Committee Note to 1980 amendment (“Details concerning time, persons,

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general subject matter, etc., may be appropriate if only a few items are withheld, but may be

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unduly burdensome when voluminous documents are claimed to be privileged or protected . . . .”).

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Nevertheless, for at least some of the disputed entries, it is difficult to conclude that Google has

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made an acceptable prima facie showing that the privilege applies, and it (apparently) has
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provided no additional information to plaintiffs even about the four entries plaintiffs raise as

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examples (Entries #41, #7390, #9028, and #9856). On the other hand, plaintiffs’ demand for

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information about the document title or subject line, the organizational positions of the authors and

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recipients, and detail about the issue, regulation, or policy that is the subject of the document are

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unlikely to make it easier for plaintiffs or the Court to assess whether a document actually seeks or

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contains legal advice. Rather, plaintiffs’ demand for this information seems calculated to help

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them assess whether the contents of a withheld document might be important for the merits of the

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case. Likewise, plaintiffs’ suggestion that the Court should find a waiver and order Google to

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produce all disputed documents is inconsistent with the Ninth Circuit’s direction in Burlington.

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Northern District of California

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See 408 F.3d at 1148-1149 (discussing “holistic approach”).

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The very large number of otherwise responsive documents that Google has withheld as

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privileged, particularly when compared to the number of nonprivileged documents Google has

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produced, raises questions about whether Google’s privilege assertions—i.e., its decisions to

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withhold documents in whole or in part from production—are more expansive than Ninth Circuit

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law permits. Those questions cannot be answered for all disputed entries simply by referring to

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Google’s privilege logs, particularly for those entries that do not clearly indicate (by name or

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otherwise) the attorney or attorneys whose advice was sought or provided, or whose work product

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is reflected in the logged document. In any event, it is impossible for the Court to conduct a

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meaningful evaluation of the 5,470 entries in dispute.2
Because this dispute cannot be resolved on the basis of the parties’ joint discovery dispute

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submission, the Court orders further proceedings, described in detail below.

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B.

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The expedited dispute resolution procedure the Court requires parties to use for discovery

Further Proceedings

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disputes is not well-suited to resolving the parties’ present dispute regarding Google’s privilege

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assertions. Given the number of disputed entries and the likelihood that resolution may require the

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Because the Court adopts further proceedings, as set forth below, the Court denies plaintiffs’
request for leave to file supplemental material in connection with the joint discovery dispute
submission. Dkt. No. 341.
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application of well-established legal principles to complex facts, the Court concludes that the

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matter should be briefed as a regularly noticed motion under Civil Local Rule 7-2, supported by

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declarations and other evidence as necessary. Unless the parties agree otherwise, plaintiffs will be

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the moving party. In addition, the Court will require Google to submit for in camera review the

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documents corresponding to representative disputed entries, as explained more fully below. See,

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e.g., United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002) (relying on

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briefing, declarations, and in camera review of challenged documents); Klein v. Meta Platforms,

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Inc., No. 20-CV-08570-JD (VKD), 2022 WL 767096 (N.D. Cal. Mar. 11, 2022) (same). Before

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plaintiffs file their motion, the parties shall comply with the following directions:
In their joint submission, the parties refer to the following 18 disputed entries as examples:

United States District Court
Northern District of California

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#4, #41, #268, #285, #660, #1095, #1231, #1262, #2813, #3265, #4712, #4835, #7390, #9028,

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#9865, #9886, #9955, and #10217. The Court will consider these to be representative examples.
For each of these 18 entries, Google must provide to plaintiffs at least the following

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information: (1) date, (2) author/sender/custodian name,3 (3) all known recipients, (4) the

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attorney(s) involved, (5) the nature of the document, (6) the subject matter of the document, and

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(7) the privilege or protection claimed.4 If the sender or recipient of an email communication is a

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distribution list, Google need only provide the current membership of the list (as it has already

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proposed to do), a description of the nature of the list (e.g., company-wide, specific department,

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executive team, etc.), and a statement indicating whether, at the time of the communication, the

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list included any recipients who were not Google employees. Google shall provide this

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information to plaintiffs no later than December 1, 2022.
If, after receiving the additional information from Google, plaintiffs dispute Google’s

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assertion of privilege or work product protection for any of the 18 disputed entries, they may file a

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regularly noticed motion addressing these entries. The motion need not be limited to the

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sufficiency of Google’s supporting disclosures (i.e., whether Google has made a prima facie

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The disclosures should identify an individual or individuals, not “Google,” if known.

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If any of this information is not available for a particular entry, Google must so inform plaintiffs.
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showing of privilege) but may challenge the privilege assertion on the merits.
If Google opposes plaintiffs’ motion, it must submit for in camera review the documents

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corresponding to the disputed entries at the time it files its opposition.5
After the Court decides plaintiffs’ motion it will consider whether any further proceedings

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are necessary to address any remaining disputes regarding Google’s privilege assertions.

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IV.

CONCLUSION
The Court denies without prejudice plaintiffs’ request for relief and orders further

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proceedings as set forth in this order.

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IT IS SO ORDERED.

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Dated: November 17, 2022

United States District Court
Northern District of California

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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For now, the Court’s in camera review will be limited to whichever of the 18 disputed entries
remain in dispute at the time of Google’s opposition.
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