In re Google RTB Consumer Privacy Litigation

Filing 532

ORDER re 506 May 10, 2023 Discovery Dispute re Source Code Changes. Signed by Judge Virginia K. DeMarchi on 5/26/2023. (vkdlc1, COURT STAFF) (Filed on 5/26/2023)

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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 MAY 10, 2023 DISCOVERY
DISPUTE RE SOURCE CODE
CHANGES

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Re: Dkt. No. 506

United States District Court
Northern District of California

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Further to the Court’s April 28, 2023 order (Dkt. Nos. 494, 495), the parties ask the Court

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to resolve their dispute about plaintiffs’ request for summaries of all source code changes Google

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has made to the RTB bid request and bid response fields for which Google has (or will) produce

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data in this case. Dkt. No. 506. This matter is suitable for resolution without oral argument. Civil

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L.R. 7-1(b).

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In their prior submission, plaintiffs asserted that Google tracks the changes it makes to

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RTB-related source code for bid request and bid response fields, and can easily prepare a summary

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of such changes. Dkt. No. 473 at 3-4. In the current submission, they argue that “these changes

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will show what data fields were included in bid requests and bid responses during what time

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period, how the information contained in those fields may have changed during the class period,

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and reveal when certain fields of user data were ‘deprecated’ (ceased to be used) from passing

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through RTB.” Dkt. No. 506 at 2. Plaintiffs say that “[s]ource code changes pertaining to the

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particular RTB bid request and bid response fields that are the subject of discovery in the case are

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called for in a number of RFPs, including RFP Nos. 91, 92, 94, 97, 99, and 100.” Id. at 2, Ex. A.

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They contend that while Google has produced some source code change information, it refuses to

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confirm that it has produced documents sufficient to show all such changes. Id. at 2. Plaintiffs say

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that the burden of producing the summaries is minimal. Id.

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Google responds that none of the requests for production plaintiffs cite call for the production

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of information about changes to RTB-related source code. Id. at 3. It says that it has already produced

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documents responsive to all of these requests, and that plaintiffs have not explained why this

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information is not sufficient to show which fields were included during the class period. Id. Finally,

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Google disputes plaintiffs’ assertion that it can produce the summaries plaintiffs demand with minimal

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burden. Rather, Google claims that “attempting to generate such a log of all changes to relevant

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source code would require individual investigations and a time-intensive, manual process.” Id.1

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Nevertheless, Google has offered to produce records of source code changes for up to six data fields.

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Id. at 4.

United States District Court
Northern District of California

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The Court has reviewed the requests for production plaintiffs identify as calling for the

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production of source code change summaries. None of them expressly calls for the production of

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source code or changes to source code. As Google points out, RFPs 91, 92, 94, 97, and 100 call for

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“documents sufficient to show” how Google selects and discloses data to RTB participants via a bid

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request and how user opt-out or consent signals impact the disclosure process, id., Ex. A., and the

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Court limited RFP 99 to documents “sufficient to show” “the filters or restrictions that Google uses to

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exclude user-specific data from bid requests” and “how they have changed, if at all, over time,” see

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Dkt. No. 352 at 7. Presumably, Google could have produced source code or source change summaries

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in responding to these requests, but it was not required to do so. Google was only required to produce

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documents sufficient to show the responsive information.

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The question is whether Google has already produced documents sufficient to show the

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information requested in RFPs 91, 92, 94, 97, 99 and 100 for bid requests, including changes during

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the class period.2 Google says it has “reasonably complied” with plaintiffs’ requests because it has

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produced many responsive documents already, including documents showing changes. See Dkt. No.

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Google also says that because some of the bid request fields it has produced are not relevant to
any issues in the case, it would serve no purpose to require Google to produce a summary of all
source code changes for these irrelevant fields. Dkt. No. 506 at 3.
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None of the requests plaintiffs cite calls for the production of information about bid responses.
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506 at 3. But it is not clear whether Google’s production is sufficient to show all relevant changes to

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responsive information during the class period, or just some of them. Plaintiffs say that “the discovery

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Google has produced to date is not sufficient because . . . [Google] has refused to confirm that it has

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produced documents sufficient to show all source code changes relating to RTB” bid request and bid

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response fields previously produced. Id. at 2 (emphasis added). But, as noted above, the requests do

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not require the production of source code or changes to source code.

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information responsive to RFPs 91, 92, 94, 97, 99, and 100 (as previously ordered), including

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documents sufficient to show changes to that responsive information during the class period.

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United States District Court
Northern District of California

If it has not already done so, Google must produce documents sufficient to show the

IT IS SO ORDERED.
Dated: May 26, 2023

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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