In re Google Referrer Header Privacy Litigation

Filing 28

Joint Case Management Statement (attorney name spelling corrected) by Paloma Gaos. (Nassiri, Kassra) (Filed on 5/6/2011) Modified text on 5/9/2011,(to conform with document posted by counsel.) (cv, COURT STAFF).

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KASSRA P. NASSIRI (215405) 1 (knassiri@nassiri-jung.com) CHARLES H. JUNG (217909) 2 (cjung@nassiri-jung.com) NASSIRI & JUNG LLP 3 47 Kearny Street, Suite 700 San Francisco, California 94108 4 Telephone: (415) 762-3100 Facsimile: (415) 534-3200 5 EDELSON MCGUIRE LLC MICHAEL J. ASCHENBRENER (maschenbrener@edelson.com) (pro hac vice) BRADLEY M. BAGLIEN (bbaglien@edelson.com) (pro hac vice) CHRISTOPHER L. DORE (cdore@edelson.com) (pro hac vice) 350 North LaSalle Street, Suit 1300 Chicago, Illinois 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 6 7 Attorneys for Plaintiff and the Putative Class 8 RANDALL W. EDWARDS (S.B. #179053) redwards@omm.com 9 BRYNLY LLYR (S.B. #235926) bllyr@omm.com JEAN B. NIEHAUS (S.B. #254891) jniehaus@omm.com 10 O’MELVENY & MYERS LLP 11 Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 12 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 13 Attorneys for Defendant Google Inc. 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN JOSE DIVISION 18 19 PALOMA GAOS, an individual, on behalf of herself and all others similarly situated, 20 Plaintiff, 21 v. 22 GOOGLE INC., a Delaware Corporation, 23 Defendant. 24 Case No. 5:10-cv-04809-EJD JOINT CASE MANAGEMENT STATEMENT 25 26 27 28 JOINT CASE MANAGEMENT STATEMENT Case No. 5:10-CV-04809-EJD 1 In accordance with the Court’s April 25, 2011 Reassignment Order, plaintiff Paloma 2 Gaos (“Plaintiff”) and defendant Google Inc. (“Defendant” and collectively with Plaintiff, the 3 “Parties”) hereby submit this Joint Case Management Statement. 4 I. 5 FILING DATE Plaintiff filed her initial Complaint on October 25, 2010, and filed her First Amended 6 Complaint on May 2, 2011. 7 II. 8 DESCRIPTION OF PARTIES Plaintiff Paloma Gaos is a natural person and a resident of San Francisco County, 9 California. 10 Defendant Google Inc. is a Delaware corporation with its headquarters and principal 11 place of business located in Mountain View, California. 12 III. SUMMARY OF CLAIMS According to Plaintiff’s First Amended Complaint, this putative class action 13 14 involves all Google users who submitted search queries at Google.com and clicked on any link 15 displayed by Google in its search results page at any time after October 25, 2006. In short, Plaintiff 16 claims that Defendant transmitted its users’ search queries, which contained allegedly sensitive 17 personal information, to third parties without authorization and in violation of Defendant’s Privacy 18 Policy and federal law. Plaintiff, on behalf of the class, alleges (1) violation of the Stored 19 Communications Act; (2) fraudulent misrepresentation; (3) negligent misrepresentation; (4) public 20 disclosure of private facts; (5) violation of Cal. Civ. Code §§ 1572 & 1573; (6) breach of contract; 21 and (7) unjust enrichment. 22 Defendant Google denies liability as to all causes of action by Plaintiff. 23 IV. 24 EVENTS UNDERLYING THE ACTION Plaintiff’s case relates to Google’s free Internet search engine. To use Google 25 Search, users enter search terms into the search bar and submit the search request to Google by 26 hitting Enter on the keyboard or clicking the Search button. Each Google search results page has a 27 unique URL that includes the search terms used to generate the search result. Plaintiff contends this 28 JOINT CASE MANAGEMENT STATEMENT 2 Case No. 5:10-CV-04809-EJD 1 is by deliberate design by Google. Users then can go to the desired web page by clicking the links 2 provided on the search results page, which will redirect the user to the desired destination web page. 3 In the normal course of web browser operation, the user’s web browser (e.g., Internet Explorer) 4 transmits what is known as Referrer Header information to the operator of every destination 5 webpage the user visits. The transmission of Referrer Header information is a standard and default 6 web browser function. The Referrer Header information includes the URL of the web page the user 7 last visited—it informs the requested website how the user got to the page. 8 Plaintiff alleges that, from at least October 2006 to the present, Google has systematically 9 designed its search engine services to transfer its users’ search queries to numerous third parties. In 10 particular, Plaintiff alleges that each time a user enters a search query at Google.com, through 11 deliberate design by Google, the user’s entire search query appears in and is transferred via the URL 12 of the subsequent Google search results page. Accordingly, Plaintiff alleges that each time a user 13 clicks on a link from Google’s search results page, the owner of the website that the user clicks on 14 will receive from Google the entire URL of the search results page, which includes the user’s full 15 search query. Plaintiff further alleges that Google could easily design Google.com so that search 16 queries are not forwarded, but chooses not to do so. 17 Plaintiff alleges that she conducted a number of Google searches during the relevant time 18 period, including so-called “vanity” searches that she alleges revealed sensitive personal 19 information, and that her search queries were unlawfully shared with third parties. Moreover, 20 Plaintiff alleges that existing and emerging technologies allow third parties who receive seemingly 21 anonymous search queries to “deanonymize” such searches and tie them to an individual’s actual 22 identity. 23 V. RELIEF SOUGHT AND DAMAGES 24 A. 25 Plaintiff seeks the following relief: 26  Plaintiff’s Statement An order certifying the Class, directing that this case proceed as a class action, and 27 appointing Plaintiff and their counsel to represent Plaintiff and the Class; 28 JOINT CASE MANAGEMENT STATEMENT 3 Case No. 5:10-CV-04809-EJD 1  An order declaring that Google’s actions constitute violations of each cause of action 2 alleged; 3  An order awarding injunctive relief and/or declaratory relief as necessary to protect 4 the interests of Plaintiff and the Class; 5  An order awarding damages, including statutory damages where applicable, to 6 Plaintiff and the Class; 7  An order awarding all economic, monetary, actual, consequential, and compensatory 8 damages caused by Google’s conduct, and if its conduct is provide willful, exemplary damages to 9 Plaintiff and the Class; 10  An order awarding restitution against Google for all money to which Plaintiff and the 11 Class are entitled in equity; 12  An order awarding Plaintiff and the Class their reasonable litigation expenses and 13 attorneys’ fees; 14  An order awarding Plaintiff and the Class all pre- and post-judgment interest, to the 15 extent allowable; 16  17 In connection with her claim under the Stored Communications Act, Plaintiff seeks damages An order awarding such other relief as equity and the law may require. 18 consistent with 18 U.S.C. § 2707(c), which provides for the greater of Plaintiff’s actual damages or 19 statutory damages in the amount of $1000 for each violation. Moreover, Plaintiff contends that her 20 and Class members’ private search queries contained sensitive personal information, and the 21 disclosure of these private queries caused actual damages. Plaintiff intends to introduce evidence 22 sufficient to quantify the value of the information wrongfully disclosed by Defendant at the 23 appropriate stage in this litigation. 24 B. Defendant’s Statement 25 At this time, no counter-claims, cross-claims or third party claims have been filed. 26 Google reserves the right to file such counter-claims. 27 28 JOINT CASE MANAGEMENT STATEMENT 4 Case No. 5:10-CV-04809-EJD 1 It is Google’s position that Plaintiff has failed to state a claim on which relief may be 2 granted and Plaintiff has failed to allege damages or that she is entitled to any relief as a result of the 3 alleged actions. 4 VI. 5 DISCOVERY Pursuant to Federal Rule of Civil Procedure 26(f), the Parties participated in a 6 telephonic meeting on February 11, 2011. At that time, the Parties did not fully establish a 7 discovery plan, but agreed to confer again on the subject pending the Court’s ruling on Defendant’s 8 outstanding motion to dismiss. The Honorable Judge Ware has since granted Google’s motion to 9 dismiss Plaintiff’s Complaint, with leave to amend, for lack of facts sufficient to establish Article III 10 standing. Plaintiff then filed her First Amended Complaint, filed May 2, 2011. 11 No substantive discovery has yet occurred in this action, and the Parties have not yet agreed 12 to any discovery deadlines. 13 VII. PROCEDURAL HISTORY 14 Plaintiff filed her Class Action Complaint on October 25, 2010. On February 10, 2010, 15 Defendant filed a motion to dismiss the Complaint under Fed. R. Civ. P. 12(b)(1) (with respect to all 16 claims) and 12(b)(6) (with respect to all claims except Plaintiff’s claim under the Stored 17 Communications Act). On April 7, 2011, Judge James Ware entered an order granting Google’s 18 motion to dismiss under Rule 12(b)(1) without prejudice and with leave to amend, finding that the 19 Plaintiff had failed to demonstrate that she had standing to assert her claims against Defendant. 20 Plaintiff filed her First Amended Complaint on May 2, 2011. In her First Amended Complaint, 21 Plaintiff dropped her claims for (1) violation of California Civil Code Section 1750 et seq., (2) 22 violation of California Business and Professions Code Section 17500 et seq., and (3) violation of 23 California Business and Professions Code Section 17200 et seq., and added claims for (1) breach of 24 contract, (2) fraudulent misrepresentation;, and (3) negligent misrepresentation. 25 VIII. OTHER DEADLINES 26 Because Plaintiff filed her First Amended Complaint on May 2, 2011, the current deadline 27 for Defendant to answer or otherwise respond is May 16, 2011. 28 JOINT CASE MANAGEMENT STATEMENT 5 Case No. 5:10-CV-04809-EJD 1 Previously, a Joint Case Management Conference was scheduled for June 6, 2011, and a 2 Joint Case Management Statement was due on May 27, 2011. Pursuant to Paragraph Six of the 3 Court’s Reassignment Order, the Parties understand that the previously scheduled Case 4 Management Conference has been vacated. 5 IX. MODIFICATION OF DATES 6 To the extent that the Reassignment Order does not address the Parties’ deadline to file a 7 Joint Case Management Statement in advance of the now-vacated June 6, 2011 Case Management 8 Conference, the Parties propose that the May 27, 2011 deadline be vacated and a new date be set 9 seven days in advance of any rescheduled Case Management Conference, pursuant to Local Rule 10 16-10. 11 X. CONSENT TO MAGISTRATE JUDGE FOR TRIAL 12 The Parties do not consent to proceed before a Magistrate Judge for trial. 13 XI. CASE MANAGEMENT CONFERENCE 14 The parties do not believe that an immediate need exists for a case management conference 15 to be scheduled in this action. 16 Respectfully submitted, 17 18 Dated: May 6, 2011 NASSIRI & JUNG LLP 19 20 By: 21 /s/ Kassra P. Nassiri Kassra P. Nassiri Attorneys for Plaintiff Paloma Gaos 22 Dated: May 6, 2011 23 EDELSON MCGUIRE LLC 24 By: 25 26 /s/ Michael J. Aschenbrener Michael J. Aschenbrener (pro hac vice) Attorneys for Plaintiff Paloma Gaos 27 28 JOINT CASE MANAGEMENT STATEMENT 6 Case No. 5:10-CV-04809-EJD 1 Dated: May 6, 2011 O’MELVENY & MEYERS LLP 2 By: 3 4 /s/ Brynly R. Llyr Brynly R. Llyr Attorneys for Defendant Google, Inc. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT CASE MANAGEMENT STATEMENT 7 Case No. 5:10-CV-04809-EJD 1 2 FILER’S ATTESTATION Pursuant to General Order No. 45, Section X, Subparagraph B, the undersigned attests that 3 all parties have concurred in the filing of this Joint Case Management Statement. 4 5 Dated: May 6, 2011 NASSIRI & JUNG LLP 6 7 8 By: 9 /s/ Kassra P. Nassiri Kassra P. Nassiri Attorneys for Plaintiff Paloma Gaos 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT CASE MANAGEMENT STATEMENT 8 Case No. 5:10-CV-04809-EJD

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