Levitte v. Google Inc.

Filing 88

MOTION For Administrative Relief to Modify Case Management Schedule filed by Google Inc.. (Norton, Leo) (Filed on 6/23/2010)

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

COOLEY LLP MICHAEL G. RHODES (116127) ([e-mail]) LEO P. NORTON (216282) ([e-mail]) 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: [phone] Facsimile: [phone] COOLEY LLP PETER J. WILLSEY (admitted pro hac vice) ([e-mail]) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

In re Google AdWords Litigation

Case No. 08-cv-03369 JW HRL UNOPPOSED MOTION FOR ADMINISTRATIVE RELIEF TO MODIFY CASE MANAGEMENT SCHEDULE [Civil L.R. 7-11, 16-2(d)]

UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

I.

INTRODUCTION The parties respectfully request a 90-day extension of the current case management

deadlines. The primary reason for the requested extension is that defendant Google Inc. has voluntarily agreed to supplement its document production regarding certain historical webpages and certain data relating to the named plaintiffs' advertisements. The information was not previously produced because it is not reasonably accessible in Google's databases. Google will nevertheless undertake the substantial burden to obtain the information from its raw data logs. This information is not readily accessible and may take Google several weeks to obtain and produce. A brief extension will allow the noticed party depositions and expert discovery to occur with the benefit of these documents. A brief extension will also accommodate the parties' continued meet-and-confer efforts regarding their respective discovery disputes and any limited remaining discovery. The parties agree that absent unforeseen and extraordinary circumstances, they will not seek any further extensions of the class certification case management deadlines. II. FACTUAL AND PROCEDURAL BACKGROUND This consolidated action is a nationwide putative class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs assert claims for alleged violation of California Business and Professions Code sections 17200 and 17500 relating to Google's AdWords program for advertisers. Plaintiffs allege that Google has harmed plaintiffs and the putative class by charging them for clicks on advertisements that Google placed on parked domains and error webpages. A. Consolidation and Initial Discovery.

By orders dated February 25, 2009, the Court consolidated four related class actions under the above caption, appointed interim lead class counsel, and bifurcated class and merits discovery. On April 24, 2009, plaintiffs filed their consolidated complaint. On May 18, 2009, Google filed its answer to the consolidated complaint. The parties then promptly commenced discovery. The parties exchanged initial

disclosures on June 11, 2009. Plaintiffs served document requests on Google on May 27, 2009, to which Google responded on July 13, 2009. Google also served document requests and interrogatories on plaintiffs on July 13, 2009. Plaintiffs served responses and objections to 1.
UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

Google's document requests and interrogatories on September 18, 2009. During this time, the parties negotiated (1) a document production protocol governing the format of the parties' document production; (2) a Stipulated Protective Order, entered by the Court on August 31, 2009, and (3) a Stipulated Expert Witness Discovery Order, filed with the Court on August 31, 2009, but not yet entered by the Court. In response to plaintiffs' document requests, Google commenced a rolling production of documents in November 2009, with additional productions occurring in December 2009, January 2010, March 2010, and April 2010, amounting to more than 775,000 images as of April 2, 2010. Plaintiffs made a document production of their own in December 2010. B. Adding and Dropping of New Named Plaintiffs and Related Discovery.

Plaintiff Bolaji Olabode was added as a named plaintiff to the consolidated action by stipulation and order dated October 2, 2009. Plaintiff Olabode was later dropped as a party after he died, and plaintiffs West Coast Cameras, Inc. and Richard Oesterling were added in his place by order dated February 17, 2010. Pursuant to that order, plaintiffs filed an amended complaint on February 22, 2010, and Google filed an amended answer on March 4, 2010. Also on March 4, 2010, plaintiffs supplemented their initial disclosures and plaintiffs West Coast Cameras, Inc. and Richard Oesterling responded to Google's written discovery. C. Informal Resolution of Discovery Disputes, Supplementation, Additional Discovery, and Depositions.

In March 2010, Google raised various issues with plaintiffs' responses to Google's first set of interrogatories. After meeting and conferring, plaintiffs agreed to supplement their

responses, which they did in April 2010. Certain of the plaintiffs also voluntarily supplemented their responses to Google's requests for production. Plaintiffs also voluntarily supplemented their document production in May 2010. On May 7 and 12, 2010, plaintiffs raised certain issues with Google's document production. The parties met and conferred over the next several weeks in an effort to resolve certain of those issues without Court intervention. Google agreed to voluntarily supplement its production as to certain requests, and accordingly made a supplemental production on May 24, 2.
UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

2010, bringing the total images Google has produced to date to more than 780,000. From February 2010 to May 2010, plaintiffs propounded five sets of interrogatories totaling 51 interrogatories and a second set of document requests comprised of one additional document request. As of June 18, 2010, Google has served responses to each of plaintiffs' five sets of interrogatories and second set of document requests. In April 2010 and continuing through the present, plaintiffs have raised issues with certain of Google's responses. After meeting and conferring, Google agreed to supplement certain interrogatories. Google last served supplemental responses on June 17, 2010. The parties have noticed the depositions of eight fact witnesses--each of the six named plaintiffs and two Google witnesses (Google 30(b)(6) deposition and deposition of Google employee Jonathan Alferness). Absent modification of the current case management schedule, the depositions are presently set to begin on June 30, 2010 and continue through July 16, 2010. Without a brief extension, depositions of these fact witnesses would likely occur without the benefit of the certain historical webpages and certain data regarding plaintiffs' advertisements placed on parked domains and error webpages that Google will produce in the weeks ahead. D. Prior and Current Case Management Schedules.

On September 17, 2009, the Court ordered the following case management schedule: May 24, 2010 July 9, 2010 August 27, 2010 Deadline to complete class certification discovery, including expert discovery Deadline for filing the motion for class certification Completion of all briefing on the motion for class certification

September 20, 2010 Hearing on the motion for class certification Given the scope of discovery and Google's rolling production of documents through March 2010, and the need to perform additional discovery by the parties, the parties agreed to modify the case management schedule. The parties moved the Court accordingly, and on March 9, 2010, the Court ordered the following modified case management schedule: July 19, 2010 Deadline to complete class certification discovery, including expert discovery 3.
UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

September 3, 2010 October 22, 2010 November 15, 2010

Deadline for filing the motion for class certification Completion of all briefing on the motion for class certification Hearing on the motion for class certification

To accommodate expert discovery, the parties agreed to modify the case management schedule to allow a 30-day expert discovery period after the close of fact discovery. The parties' agreement did not otherwise change the schedule. On April 26, 2010, the Court ordered the following case management schedule: July 19, 2010 August 19, 2010 September 3, 2010 October 22, 2010 November 15, 2010 III. Deadline to complete fact class certification discovery; deadline to exchange initial expert reports Deadline for any rebuttal expert reports to be exchanged and to complete all expert class certification discovery Deadline for filing the motion for class certification Completion of all briefing on the motion for class certification Hearing on the motion for class certification
TO

THE CASE MANAGEMENT SCHEDULE SHOULD BE MODIFIED DEADLINES BY A PERIOD OF APPROXIMATELY 90 DAYS

EXTEND ALL

The parties have been able to resolve their discovery disputes without burdening the Court with discovery motions. Recently, to resolve various discovery disputes, Google has agreed to supplement its document production regarding certain historical webpages and certain data relating to the named plaintiffs' advertisements placed on parked domains and errors web pages. The information was not previously produced because it is not reasonably accessible in Google's databases. Google will nevertheless undertake the substantial burden to obtain the information from its raw data logs. But doing so will take time, and require substantial engineering time and computer hours. Google estimates that it could take several weeks to obtain the requested information. The parties agree that the currently scheduled depositions and contemplated expert discovery should take place after the supplemental production. Also, a brief extension will allow the parties additional time to attempt to resolve any outstanding discovery disputes and complete any limited remaining discovery. Accordingly, the parties request a 90-day extension of the current case management schedule. 4.
UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL

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
COOLEY LLP
A T T O R N E Y S A T LAW S A N DI E G O

The proposed modified dates are as follows: July 26, 2010 Deadline for Google to complete supplemental production of documents regarding certain historical webpages and certain data relating to the named plaintiffs' advertisements placed on parked domains and errors web pages

August 9, 2010 ­ Period during which parties will conduct fact depositions September 17, 2010 October 4, 2010 November 19, 2010 December 17, 2010 January 28, 2011 February 28, 2011 Deadline to complete fact class certification discovery; deadline to exchange initial expert reports Deadline for any rebuttal expert reports to be exchanged and to complete all expert class certification discovery Deadline for filing the motion for class certification Completion of all briefing on the motion for class certification Hearing on the motion for class certification

The parties have met and conferred regarding this motion, and plaintiffs do not oppose it. The parties respectfully request that the Court enter the proposed order submitted concurrently herewith. The parties agree that absent unforeseen and extraordinary circumstances, they will not seek any further extensions of the class certification case management deadlines. IV. CONCLUSION For each of the reasons stated above, Google respectfully requests that the Court grant its unopposed motion for administrative relief. Dated: June 23, 2010 COOLEY LLP MICHAEL G. RHODES (116127) PETER J. WILLSEY (admitted pro hac vice) LEO P. NORTON (216282) /s/ Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE INC. Email: [e-mail]
677175 /SD

5.

UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL