Almeida v. Google, Inc.

Filing 13

JOINT CASE MANAGEMENT STATEMENT filed by David Almeida. (Torrijos, Alfredo) (Filed on 8/8/2008)

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Almeida v. Google, Inc. Doc. 13 1 BRIAN S. KABATECK, SBN 152054 ( 2 RICHARD L. KELLNER, SBN 171416 ( 3 ALFREDO TORRIJOS, SBN 222458 ( 4 KABATECK BROWN KELLNER LLP 644 South Figueroa Street 5 Los Angeles, California 90017 Telephone: (213) 217-5000 6 Facsimile: (213) 217-5010 7 9 10 11 12 13 14 16 17 18 vs. 19 GOOGLE, INC., a Delaware Corporation; and DOES 1 through 20 10, inclusive, 21 Defendants. 22 23 24 25 JOINT RULE 26(F) REPORT Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, Plaintiff Attorneys for Plaintiff 8 and the Proposed Class UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CASE NO. CV 08-02088 RMW JOINT RULE 26(F) REPORT Initial Status Conference Date: August 15, 2008 Time: 10:30 a.m. Before: Honorable Ronald M. Whyte DAVID ALMEIDA, individually and on behalf of all others similarly 15 situated, Plaintiff, 26 David Almeida ("Plaintiff") and Defendant Google Inc. ("Defendant" or "Google") 27 hereby jointly submit this Rule 26(f) Report. The parties met and conferred on July 28 25, 2008, pursuant to Rule 26 of the Federal Rules of Civil Procedure. During this 1 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) 1 2 3 4 5 6 7 8 9 10 11 12 meeting, they discussed Rule 26 initial disclosures and discovery. This Joint Report was prepared based on those discussions. A. PLAINTIFF'S STATEMENT OF THE CASE Plaintiff brings this class action against Google Inc. ("Google") to recover damages and other relief available at law and in equity on behalf of himself as well as on behalf of the members of the following class: All persons or entities located within the United States who bid on a keyword though AdWords, left the "CPC content bid" input blank, and were charged for content ads. The Complaint alleges misrepresentations related to Google's AdWords 13 online advertising program when it fails to notify potential advertisers that leaving 14 the supposedly optional "CPC content bid" input blank on the signup webpage will 15 result in charges for ads on the "content network." Unlike the ads placed on 16 Google's web search results, ads on the "content network" are placed on less 17 desirable third party websites. Many online advertisers do not want their ads on 18 third party websites and therefore chose to leave the optional "CPC content bid" 19 box empty, not realizing that this would automatically generate bids for ads on third 20 party websites. 21 By tricking advertisers who seek on-line advertising through Google's 22 AdWords program into bidding for a service that they do not want, Google is 23 causing damage to the class in an amount equal to the charges generated from the 24 unwanted ads displayed on the "content network". Plaintiff brings the following 25 three causes of action: (1) unjust enrichment; (2) fraudulent concealment; (3) and 26 violation of California Business & Professions Code Section 17200, et seq. 27 / / / 28 2 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) 1 2 3 4 5 6 7 8 9 B. GOOGLE'S STATEMENT OF THE CASE Google denies Plaintiff's allegations. In particular, and without limitation, Google denies that its AdWords program was confusing as alleged by Plaintiff. Google further contends that it complied with all applicable regulations and statutes. Its conduct was neither unfair nor unlawful. Additionally, Google contends that this case is inappropriate for class-action treatment. Google will raise additional defenses after it has had the opportunity to learn the basis for Plaintiff's claims. RULE 26 INITIAL DISCLOSURES Plaintiff made the initial disclosures required by Rule 26 on August 8, 2008. 10 C. 11 12 The parties have agreed that Defendant Google will serve its Rule 26 initial 13 disclosures no later than September 15, 2008. 14 15 D. 16 DISCOVERY SUBJECTS, COMPLETION AND PHASING The parties anticipate discovery may be needed concerning: (1) issues of 17 class certification (including, numerosity, adequacy, typicality and commonality); 18 (2) the identity of all AdWords customers who left the "CPC content bid" input 19 blank; (3) the design and/or testing of the AdWords bidding process; (4) the 20 marketing of the AdWords program; (5) disclosures made concerning the bidding 21 process for AdWords; and (6) damages. By identifying these categories, the parties 22 do not concede that all such information is discoverable or necessary. 23 24 25 26 27 28 The parties propose the following discovery schedule: November 2, 2009 November 9, 2009 November 23, 2009 December 7, 2009 Non-expert discovery cut-off Expert opening reports Expert opposition reports Expert reply reports 3 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) 1 2 3 4 5 6 7 8 9 E. December 14, 2009 particular issues is necessary. Expert discovery cut-off The parties do not believe that an order phasing or limiting discovery upon DISCOVERY OF ELECTRONICALLY STORED INFORMATION The parties have agreed to serve all filings in this action by electronic mail (by .pdf, .tif, or Word format) if the service, including attachments, consists of 200 or fewer pages. For service of larger filings, the parties may effect service by overnight mail, as long as courtesy copies of the operative pleading, motion, or 10 discovery response are served electronically on the same date. The parties agree 11 that Google may effect electronic service of documents in this action by serving the 12 following attorneys of record for Plaintiffs: Richard L. Kellner 13 (, and Alfredo Torrijos ( The parties 14 further agree that Plaintiff may effect electronic service of documents in this action 15 by serving the following attorneys of record for Google: David J. Silbert 16 ( and Alyse Bertenthal ( 17 Additionally, the parties anticipate that discovery in this case will involve the 18 production of documents and electronically stored information ("ESI"). The parties 19 agree to meet and confer in good faith in an effort to avoid the need for any formal 20 motions related to discovery of documents or ESI. 21 22 F. 23 ISSUES RELATING TO CLAIMS OF PRIVILEGE Discovery in this action may involve trade secrets. During the meet and 24 confer on July 25, 2008, the parties agreed to negotiate a stipulated Protective Order 25 that will govern the production of confidential materials (including documents and 26 other information) in this action. The parties agree to meet and confer in good faith 27 in an effort to reach agreement concerning the contents of an appropriate protective 28 4 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) 1 2 3 4 5 6 7 8 9 11 order. G. CHANGES TO LIMITATIONS ON DISCOVERY The parties have agreed to change the limit on depositions made by F.R.Civ.P. 30(a)(2)(A)(i) from a maximum of ten depositions to an equivalent maximum hourly quota of 70 hours to be used at the discretion of each party. H. PROPOSED CLASS CERTIFICATION BRIEFING SCHEDULE The parties stipulate and agree, and request that the Court approve, the 10 following briefing schedule for Plaintiff's anticipated motion for class certification: 12 April 3, 2009 13 14 15 16 18 19 20 21 22 23 24 25 / / / 26 / / / 27 / / / 28 5 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) Last day for Plaintiff to file and serve: (1) expert report(s) on class certification; and (2) motion for class certification. Last day for Defendant to file and serve: (1) expert report(s) on class certification; and (2) opposition to motion for class certification. Last day for Plaintiff to file and serve reply in support of motion for class certification. Hearing on motion for class certification. May 8, 2009 May 22, 2009 17 June 19, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 I. ALTERNATIVE DISPUTE RESOLUTION The Court has ordered mediation as the ADR process. The parties request that the Court extend the presumptive deadline for mediation until they have conducted substantial discovery. The parties agree to hold mediation by June 9, 2009. DATED: August 8, 2008 By: /s/ KABATECK BROWN KELLNER LLP Brian S. Kabateck Richard L. Kellner Alfredo Torrijos Counsel for Plaintiff and the proposed class 14 DATED: August 8, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s/ KEKER AND VAN NEST LLP Daralyn J. Durie David J. Silbert Ryan M. Kent Alyse D. Bertenthal Counsel for Defendant Google Inc. 6 JOINT RULE 26(F) REPORT (CV-08-02088-RMW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATION OF SERVICE I, Alfredo Torrijos, hereby certify that on August 8, 2008, I caused the foregoing document titled JOINT RULE 26(F) REPORT to be electronically filed and served upon the persons named below via the ECF system. This document is available for review and downloading from the EFC system. Daralyn J. Durie David J. Silbert Ryan M. Kent Alyse Bertenthal KEKER & VAN NEST, LLP 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Defendant GOOGLE, INC. Dated: August 8, 2008 By: /s/ Alfredo Torrijos CERTIFICATE OF SERVICE

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