In re Google Referrer Header Privacy Litigation

Filing 37

Transcript of Proceedings held on 10/28/2011, before Judge Edward J. Davila. Court Reporter/Transcriber Summer Fisher, Telephone number 408-288-6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/5/2012. (Fisher, Summer) (Filed on 12/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GAOS,
PLAINTIFF,
VS.
GOOGLE, INC.,
DEFENDANT.

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CV-10-4809-EJD
SAN JOSE, CALIFORNIA
OCTOBER 28, 2011
PAGES 1-30

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

ASCHENBRENER LAW, P.C.
BY: MICHAEL ASCHENBRENER
795 FOLSOM STREET, 1ST FL
SAN FRANCISCO, CA 94107

FOR THE DEFENDANT:

O'MELVENY & MYERS, LLP
BY: RANDALL EDWARDS
TWO EMBARCADERO CENTER, 28TH FL
SAN FRANCISCO, CA 94111

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(APPEARANCES CONTINUED ON THE NEXT PAGE)

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OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
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FOR THE PLAINTIFF:

NASSIRI & JUNG, LLP
BY: KASSRA NASSIRI
47 KEARNY STREET, STE 700
SAN FRANCISCO, CA 94108

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SAN JOSE, CALIFORNIA

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P R O C E E D I N G S

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(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)

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THE CLERK:

ON FOR MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT.

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CALLING CASE NUMBER 10-4809.

GAOS VERSUS GOOGLE.

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OCTOBER 28, 2011

COUNSEL, PLEASE COME FORWARD AND STATE
YOUR APPEARANCES.

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MR. EDWARDS:

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RANDALL EDWARDS ON BEHALF OF GOOGLE.

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THE COURT:

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MR. NASSIRI:

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KASSRA NASSIRI ON BEHALF OF PLAINTIFF

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GOOD MORNING.

GOOD MORNING, YOUR HONOR.

MR. ASCHENBRENER:

GOOD MORNING,

YOUR HONOR.

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THANK YOU.

GAOS.

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GOOD MORNING, YOUR HONOR.

MICHAEL ASCHENBRENER ON BEHALF OF THE
PLAINTIFF AS WELL.

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THE COURT:

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SO THIS IS THE DEFENDANT'S MOTION TO

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DISMISS.

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THANK YOU.

GOOD MORNING.

THANK YOU.

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SO LET ME -- YOU CAN BE SEATED COUNSEL,

MR. EDWARDS, WHAT WOULD YOU LIKE ME TO
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KNOW?

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MR. EDWARDS:

WELL, YOUR HONOR, WE TRIED

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TO COVER ALL OF THE POINTS WE RAISED, OBVIOUSLY A

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NUMBER OF DIFFERENT GROUNDS PARTICULARLY A LOT OF

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SPECIFIC ISSUES WITH THE STATE LAW CLAIMS.

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WE TRIED TO ADDRESS THOSE AS THOROUGHLY

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AS WE COULD IN THE REPLY BRIEF, AND I WANT TO BE

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RESPECTFUL OF THE COURT'S TIME AND NOT TELL YOU ALL

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THE GOOD ARGUMENTS I PUT IN THE BRIEF.

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BUT WHAT I WOULD LIKE TO DO HERE IS JUST

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HIGHLIGHT A FEW THINGS WHAT WE BELIEVE IS REALLY

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SORT OF THE NUT OF THE ISSUE.

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THE CENTRAL DEFICIENCY IN THE FIRST

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AMENDED COMPLAINT IS REALLY THE SAME DEFICIENCY

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THAT EXISTED IN THE PRIOR COMPLAINT THAT CHIEF

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JUDGE WARE DISMISSED WHICH IS, IT DOES NOT ACTUALLY

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MAKE FACTUAL ALLEGATIONS, NON CONCLUSORY

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ALLEGATIONS, WITH RESPECT TO THE NAMED PLAINTIFF

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WITH RESPECT EITHER TO ESTABLISH ACTUAL OR CONCRETE

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OR EMINENT INJURY WITH RESPECT TO STANDING, OR AS

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WE TRIED TO GO THROUGH IN THE BRIEF, EACH OF THE

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STATE LAW CAUSES OF ACTION HAVE ADDITIONAL PROBLEMS

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WITH THEM.

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CHIEF JUDGE WARE DIDN'T ADDRESS ANY OF
THOSE BECAUSE OF HIS FINDING JUST ON THE STANDING
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ISSUE.

SO WE BELIEVE THAT THERE ARE ACTUALLY

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THREE, I WILL BROADLY CATEGORIZE THEM, THREE

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REASONS TO DISMISS ALL OF THE STATE LAW CAUSES OF

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ACTION, AND THE STANDING ISSUE GOES TO THE SCA

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CLAIM AS WELL.

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SO FIRST THERE'S THE STANDING POINT WHICH

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IF ALL THAT PLAINTIFF'S REALLY HAVE, THE PLAINTIFF

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REALLY HAS DONE TO TRY TO ADDRESS THE DEFICIENCIES

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THAT CHIEF JUDGE WARE FOUND WERE TO ADD PARAGRAPH

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76 TO 80 TO THE FIRST AMENDED COMPLAINT WHICH

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ESSENTIALLY SAYS THAT MS. GAOS USED THE SERVICE

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DURING ALL MATERIAL TIMES, I BELIEVE IS THE PHRASE

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THE COMPLAINT USES.

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SO THE FIRST FOUR PARAGRAPHS OF THOSE

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FIVE SAY SHE USED THE SERVICE AND THEN SHE HAS A

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VERY CONCLUSORY RECITATION AS A RESULT SHE WAS

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INJURED.

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THAT DOESN'T PROVIDE A RESPONSE TO THE

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PRIOR DISMISSAL ORDER WHICH REQUIRED FACTUAL

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ALLEGATIONS, NOT A CONCLUSORY ASSERTION IN A SINGLE

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PARAGRAPH.

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NOWHERE IN THE FIRST AMENDED COMPLAINT

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AND NOWHERE IN THE OPPOSITION BRIEF DOES PLAINTIFF

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REALLY IDENTIFY ANY FACTS THAT SHOW COGNIZABLE

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INJURY WITH RESPECT TO HER.
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MOST OF THE COMPLAINT IS GENERIC AND IT'S

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SPECULATIVE THAT SOMETHING MIGHT HAPPEN IN THE

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FUTURE IF THREE OR FOUR DIFFERENT THINGS HAPPENED

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AND THE SEARCH QUERIES ARE PIECED TOGETHER WITH

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OTHER INFORMATION BY THIRD PARTIES DOWN THE ROAD,

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SOMEBODY MIGHT GET HURT IN SOME WAY.

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AND THE CASE IS EXTREMELY DIFFERENT FROM

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THE CASES THAT PLAINTIFF SITES, AND I WON'T GO

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THROUGH CHAPTER AND VERSE WHAT WE DID IN THE BRIEFS

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BUT THE KROTTNER DECISION, THE STARBUCKS CASE, THE

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RUIZ CASE, IPHONE, ALL OF THESE CASES WHERE THERE

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IS STANDING, THERE'S SOMETHING MUCH MORE CONCRETE

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WHERE SOCIAL SECURITY NUMBERS AND CREDIT CARD

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NUMBERS ARE ACTUALLY STOLEN.

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ANYTHING LIKE THAT HERE.

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THEY JUST DON'T HAVE

BUT PARTICULARLY WITH RESPECT TO

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MS. GAOS.

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ABOUT WHAT MS. GAOS SEARCHED WAS FOR HER NAME AND

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NAMES OF FAMILY MEMBERS.

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THAT ANYTHING BAD OR ANYTHING REALISTICALLY BAD IS

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LIKELY OR EMINENT TO OCCUR.

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PROBLEM WITH STANDING.

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THE ONLY CONCRETE FACTUAL ALLEGATION

THERE'S NO ALLEGATIONS

AND THAT'S REALLY THE

THE SAME PROBLEM EXISTS WITH RESPECT TO

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HOW PLAINTIFFS HAVE TRIED TO DEAL WITH THE

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SUBSTANCE OF THEIR STATE LAW CLAIMS.

SO FOR
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INSTANCE, IN THE NEGLIGENT AND INTENTIONAL

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MISREPRESENTATION CLAIMS THERE'S NO ALLEGATIONS

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ABOUT RELIANCE OR REVIEW OF THE SUPPOSED

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MISREPRESENTATIONS, AND EVEN THE MISREPRESENTATIONS

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AREN'T IDENTIFIED CLEARLY WITH RESPECT TO MS. GAOS.

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AND THERE'S NO DISCUSSION WITH RESPECT TO MS. GAOS

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OR FACTS SHOWING THAT SHE'S BEEN DAMAGED.

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WITH RESPECT TO THE PUBLIC DISCLOSURE OF
PRIVATE FACTS CONSTITUTIONAL CLAIM, AGAIN, THE

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OPPOSITION BRIEF DOESN'T ENGAGE ON WHAT THE

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ALLEGATIONS ARE WITH RESPECT TO HER.

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ISN'T A PRIVATE FACT.

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HER NAME

AND THEY REALLY HAVE NO RESPONSE TO THE

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POINT THAT THE TEST -- ONE OF THE ELEMENTS FOR THAT

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CLAIM IS THAT A DISCLOSURE, ASSUMING ONE EVEN

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OCCURRED AND WE DISPUTE THAT, A DISCLOSURE MUST BE

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TO A REASONABLE PERSON HAVE BEEN OFFENSIVE AND

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OBJECTIONABLE.

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AND THE DISCLOSURE OF THE FACT OF HER

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NAME OR EVEN THAT SHE DID A VANITY SEARCH ON HER

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NAME DOESN'T RISE TO THAT.

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INNOCUOUS THAN ONE OF THE CASES WE CITED THE VIACOM

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V. DALY CASE WHERE A WOMAN SUED BECAUSE THERE WAS A

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PUBLICATION THAT SHE HAD KISSED A MAN IN THE STALL

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OF THE WOMAN'S BATHROOM AND SHE SAID THAT WAS

IT'S FAR, FAR MORE

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ENOUGH TO CAUSE HER PERSONAL AND SUBJECTIVE

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EMBARRASSMENT.

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SAID THAT WASN'T ENOUGH FOR THIS REASONABLE,

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OBJECTIVE, OFFENSIVE TEST.

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AND THE COURT, AS A MATTER OF LAW,

THE COURT:

SO YOU ARE SAYING MS. GAOS,

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WE KNOW WHAT SHE'S DONE, PUT HER NAME IN A VANITY

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SEARCH AND THAT'S ALL, AND WITHOUT MORE THERE'S NO

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STANDING.

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MR. EDWARDS:

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EXACTLY.

AND NO STANDING, AND SHE DOESN'T MEET THE

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VARIOUS ELEMENTS.

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SATISFY THE ELEMENTS OF THE STATE LAW CAUSES OF

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ACTIONS.

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SHE DOESN'T PLEAD ENOUGH TO

SO THOSE ARE TWO OF THE PROBLEMS.

AND

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THE THIRD ONE IS THE PREEMPTION ARGUMENT WITH

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RESPECT TO THE STATE LAW CLAIMS.

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OF STATE LAW CLAIMS THAT ARE APPENDED TO WHAT SEEMS

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TO BE THE THRUST OF WHERE THE COMPLAINT IS GOING

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THE SCA CLAIM.

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THERE ARE A LOT

AND THERE'S JUST NO, IN THE OPPOSITION,

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NO ATTEMPT TO GRAPPLE WITH THE PLAIN LANGUAGE.

AND

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WE CITED THE SUZLON ENERGY CASE IN THE REPLY BRIEF,

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AND I WANTED TO HIGHLIGHT THAT BECAUSE THAT'S A

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NINTH CIRCUIT DECISION FROM EARLIER THIS MONTH, WAS

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INTERPRETING A DIFFERENT PROVISION OF THE SCA, BUT
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IT EMPHASIZED THE POINT, TURNING AND MAKING

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ARGUMENTS ABOUT LEGISLATIVE HISTORY AND

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SPECIFICALLY SIMILAR TYPES OF LEGISLATIVE HISTORY

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TYPES OF ARGUMENTS THAT MS. GAOS ADVANCED HERE

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DON'T OVERCOME PLAIN LANGUAGE.

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THERE'S NO DOUBT THAT WHAT SECTION 2708

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SAYS IS THAT FOR VIOLATIONS OF WHICH CHAPTER, WHICH

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THEY CERTAINLY ALLEGE, THE ONLY NONCONSTITUTIONAL

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REMEDIES ARE THE REMEDIES IN THIS CHAPTER.

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AND THE TWO CASES THAT WE CITED QUON AND

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BUNNELL EXPRESSLY LOOK AT THAT LANGUAGE AND FIND

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THAT ALL THE STATE LAW CLAIMS, THERE ARE DIFFERENT

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STATE LAW CLAIMS THAN THE TWO, DON'T SURVIVE.

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THERE ARE A COUPLE OF DECISIONS THAT

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MS. GAOS CITED FROM OTHER COURT'S IN THIS DISTRICT

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THAT FIND NO PREEMPTION BUT WHAT -- NO EXPRESS

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PREEMPTION, ONE OF THEM ACTUALLY FINDS FIELD

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PREEMPTION.

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BUT NONE OF THEM ENGAGE ON THE LANGUAGE

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OF THE STATUTE, WHICH LAST WEEK OR THE WEEK BEFORE,

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I THINK IT WAS OCTOBER 3RD, SO A COUPLE WEEKS AGO,

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I APOLOGIZE, THE NINTH CIRCUIT VERY CLEARLY SAID IF

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THE LANGUAGE IS CLEAR, DON'T GET INTO LEGISLATIVE

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HISTORY, IT'S THE END OF IT.

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SO THAT'S THE THIRD INDEPENDENT GROUND TO
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ELIMINATE ALL OF THE STATE LAW CLAIMS.

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THE COURT:

SO 2707(A), I THINK, OF THE

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STATUTE TALKS ABOUT AGGRIEVED.

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MR. EDWARDS:

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THE COURT:

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STATES AN AGGRIEVED PERSON MAY BRING A

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MR. EDWARDS:

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THE COURT:

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RIGHT.

CIVIL ACTION, I THINK IS WHAT THE LANGUAGE IS.

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TALKS ABOUT AGGRIEVED?

YES.
AND WHAT'S YOUR POSITION AS

TO WHETHER OR NOT THIS PLAINTIFF IS AGGRIEVED?
MR. EDWARDS:

FOR PURPOSES OF STANDING

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WITH RESPECT TO THE SCA, I GUESS WHAT I WOULD SAY

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IS WE DON'T KNOW BECAUSE PARAGRAPH 76 THROUGH 80 IS

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ALL THAT'S ALLEGED WITH RESPECT TO MS. GAOS.

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SO CERTAINLY UNDER EXISTING NINTH CIRCUIT

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PRECEDENT WITHOUT THE -- ONE COULD ARGUE THAT THE

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VIOLATIONS OF A STATUTE IS SUFFICIENT TO GET

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STANDING WITH RESPECT TO THAT CAUSE OF ACTION.

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HAVE TO ANALYZE STANDING BY CAUSE OF ACTION AND BY

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CAUSE OF ACTION.

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THE COURT:

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MR. EDWARDS:

YOU

RIGHT.
BUT THERE'S SOME AUTHORITY

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THAT WOULD SUGGEST THAT A PERSON AGGRIEVED BY THE

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STATUTE WOULD HAVE STANDING.

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BUT OUR FUNDAMENTAL POSITION AND WHY WE
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CAME BACK TO THE COURT WITH RESPECT TO THAT CAUSE

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OF ACTION IS PARAGRAPH 76 THROUGH 80 DON'T REALLY

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GET THERE.

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JUDGE WARE SAID, WHICH IS, JUST CONCLUSORY

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ALLEGATIONS WITH NO FACTS ARE NOT ENOUGH.

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THEY DON'T SOLVE THE PROBLEM THAT CHIEF

AND WE POINTED OUT, I THINK IN OUR REPLY

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BRIEF, ONE EXAMPLE OF THAT WHERE IT'S NOT AS IF

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THERE'S BEEN A COMPLETE RECITATION ESTABLISHED

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WHETHER MS. GAOS WAS AGGRIEVED.

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THE COURT:

OKAY.

THANK YOU.

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MR. EDWARDS:

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THE COURT:

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MR. NASSIRI:

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I WOULD LIKE TO PICK UP ON THE LAST PART

THANK YOU.
MR. NASSIRI.
THANK YOU, YOUR HONOR.

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OF THAT DISCOURSE.

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THAT THERE'S AN INCONSISTENCY IN GOOGLE'S ARGUMENT.

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PARTICULARLY WITH RESPECT TO PREEMPTION.

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I THINK THE COURT RECOGNIZES

COUNSEL JUST SAID LEAD PLAINTIFF HAS

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ALLEGED STATUTORY VIOLATIONS UNDER THE SCA, AND

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THAT'S OUR POSITION AS WELL.

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WE'VE ALLEGED STATUTORY VIOLATIONS AND

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THAT'S SUFFICIENT TO CONFER STANDING UNDER

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NINTH CIRCUIT LAW.

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I CAN RECITE A NUMBER OF CASES FROM THE
NINTH CIRCUIT AND OUTSIDE OF THIS CIRCUIT THAT
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STATE THAT, INCLUDING THE U.S. SUPREME COURT IN

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WARTH.

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WITH RESPECT TO JUDGE WARE'S ORDER ON THE

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MOTION TO DISMISS, JUDGE WARE SAID THAT PLAINTIFF

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FAILED TO PLEAD THAT SHE CLICKED ON THE LINK FROM

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THE GOOGLE SEARCH PAGE DURING THE SAME TIME PERIOD

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THAT DEFENDANT ALLEGEDLY RELEASED SEARCH TERMS VIA

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REFER HEADERS.

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WHAT WE DESCRIBED IN THE COMPLAINT IS

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ESSENTIALLY A PATTERN AND PRACTICE OF DISCLOSING

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THE SEARCH INQUIRIES VIA URL WITH VERY LIMITED

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EXCEPTIONS DURING CERTAIN LIMITED TIME PERIODS FOR

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SMALL SUBSETS OF GOOGLE USERS DURING THE CLASS

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PERIOD.

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WE ADDRESSED JUDGE WARE'S CONCERN AND WE

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ALLEGED THAT MS. GAOS, BEING A MATERIAL USER OF

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GOOGLE WHO USES IT REPEATEDLY, ON INFORMATION WE

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BELIEVE AND WITH REASONABLE BASIS, HAD HER SEARCH

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QUERIES FORWARDED BY URL'S.

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THE COURT:

SO YOU STATED IN PARAGRAPH

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80, PLAINTIFF'S SEARCH QUERIES WHICH CONTAIN

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SENSITIVE PERSONAL INFORMATION TO THIRD PARTIES.

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AND IS THAT HER NAME?

BECAUSE I THINK

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EARLIER YOU SUGGEST THAT SHE MADE I THINK WHAT I

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REFERRED TO AS "VANITY SEARCHES."
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MR. NASSIRI:

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YES, YOUR HONOR.

ACTUALLY, JUST -- IT'S ACTUALLY PARAGRAPH, AS

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MY COLLEAGUE STATED, 76 THROUGH 80.

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ADDRESS JUDGE WARE'S CONCERN.

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GOOGLE --

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THE COURT:

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ONE THING THAT EVEN

BUT IS HER NAME SENSITIVE,

PERSONAL INFORMATION?

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ALL OF THOSE

MR. NASSIRI:
PERSONAL INFORMATION.

HER NAME IS SENSITIVE,
BUT IT'S IMPORTANT TO FIND

OUT ONE THING FOR THE COURT, YOUR HONOR.

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THE SCA DOESN'T PLACE ANY RESTRICTIONS OR

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REQUIREMENTS ON THE DISCLOSED DATA.

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NEED TO BE PERSONAL, FINANCIAL, SENSITIVE OR ANY OF

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THAT.

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IT'S DISCLOSED WITHOUT CONSENT THEN THAT'S ENOUGH

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TO STATE A VIOLATION.

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IT DOESN'T

IF IT'S THE CONTENT OF COMMUNICATION AND

THE COURT:

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SENSITIVE INFORMATION?

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SO WHY DID YOU SAY PERSONAL,

MR. NASSIRI:

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BECAUSE WE BELIEVE IT IS

PERSONAL, SENSITIVE, INFORMATION, YOUR HONOR.
TECHNOLOGY HAS ADVANCED TO THE POINT, AS

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WE DESCRIBED IN THE COMPLAINT, WHERE ALL THIS

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INFORMATION ADDS TO THE AGGREGATE DATA THAT'S

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AVAILABLE TO COMPANIES LIKE RAPLEAF THAT AGGREGATE

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DATA TO CREATE PROFILES.
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THE COURT:

THAT'S A COMPANY THAT'S

SEPARATE FROM GOOGLE?

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MR. NASSIRI:

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ONE OF THE ISSUES, AND GOOGLE'S FORMER

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CEO ERIC SCHMIDT STATED THIS IN RESPONSE TO WHAT

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HAPPENED IN THE AOL CASE, GOOGLE'S CEO SAYS,

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APPARENTLY AOL DIDN'T ANONYMIZE THE DATA ENOUGH.

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IT'S SEPARATE FROM GOOGLE.

AND THAT'S WHAT WE ARE SEEING HERE IS
THAT IN TODAY'S WORLD, GOOGLE IS DISCLOSING

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BILLIONS OF SEARCH INQUIRIES AND ALL OF PLAINTIFF'S

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SEARCH QUERIES ISN'T ANONYMOUS ENOUGH.

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WE ALLEGE THIS IN GREAT DETAIL, AND WE

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COULD PROVIDE MORE FOR THE COURT IF WE SURVIVE THIS

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MOTION TO DISMISS, AND FOR LACK OF STANDING WE

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WOULD BE ABLE TO ESTABLISH ALL OF THIS.

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ALL FACTUAL QUESTIONS THAT PLAINTIFF DOESN'T

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BELIEVE ARE APPROPRIATE FOR DISPOSITION HERE ON THE

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MOTION TO DISMISS.

THESE ARE

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THE COURT:

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THE QUESTION I PUT TO COUNSEL, YOUR

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COLLEAGUE OPPOSITE, IS SHE AGGRIEVED?

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MR. NASSIRI:

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THE COURT:

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MR. NASSIRI:

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SO WHAT ABOUT AGGRIEVED?

SHE IS AGGRIEVED.
HOW?
SO WE HAVE MADE OUT, WE

BELIEVE, A CLEAR VIOLATION OF THE SCA.
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PLAINTIFF IS AGGRIEVED BECAUSE THE

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CONTENTS OF HER COMMUNICATIONS WERE DISCLOSED

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WITHOUT HER CONSENT.

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SHE HAS STANDING BECAUSE THE STATUTE IS

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ADDRESSED TO PROTECT HER AND TO GIVE HER JUDICIAL

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RELIEF.

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IF SHE PREVAILS IN MAKING OUT A VIOLATION

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OF THE SCA, SHE'S ENTITLED TO HER ACTUAL DAMAGES

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AND AT LEAST $1,000.

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THE COURT:

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OF IT.

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BUT ISN'T THE CONDITION PRECEDENT THAT
SHE MUST BE AN AGGRIEVED PARTY?

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MR. NASSIRI:

THE COURT:
PERCEIVED.

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SHE IS AGGRIEVED,

YOUR HONOR.

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SO I UNDERSTAND THAT PORTION

IF THAT'S THE CONDITION

YOU'VE GOT TO BE AN AGGRIEVED PERSON.
WHAT DOES THAT MEAN, AGGRIEVED, HOW IS

SHE.
MR. NASSIRI:

WHAT THAT MEANS,

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YOUR HONOR, IS IF SHE'S CONFERRED CERTAIN RIGHTS BY

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THE STATUTE AND THOSE RIGHTS ARE VIOLATED THEN

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SHE'S AGGRIEVED.

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THE COURT:

SO SHE NEED NOT SHOW ANY

PERSONAL INJURY AT ALL.
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MR. NASSIRI:

SHE HAS SHOWN PERSONAL

INJURY, WE BELIEVE.

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BUT YOUR HONOR, THERE ARE NUMEROUS

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EXAMPLES INCLUDING MANY OF WHICH ARE IN THE CIVIL

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RIGHTS ARENA WHERE THE HARM MIGHT BE CONCEIVED TO

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BE INTANGIBLE AND CREATED SOLELY BY LEGISLATIVE

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ACTION.

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HERE, PRIVACY HARMS CAN BE INTANGIBLE.
CONGRESS RECOGNIZED THAT WHETHER YOU CAN PUT A

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DOLLAR AMOUNT ON THEM EASILY OR NOT, PEOPLE HAVE AN

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INTEREST IN KEEPING THEIR SEARCH QUERIES IN THIS

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CASE TO THEMSELVES IF THEY CHOOSE TO DO SO.

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AND WHEN A COMPANY VIOLATES THAT THEN
THERE'S --

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THE COURT:

I GET THAT.

I

APPRECIATE THAT.

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SURE.

BUT AGAIN, THE THRESHOLD QUESTION, DOES
SHE NEED TO SAY MORE THAN I'M AGGRIEVED?

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IS THAT ENOUGH JUST TO SAY STATUTE SAYS

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AGGRIEVED, THAT'S ME I'M AGGRIEVED, SO LET ME IN,

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WITHOUT MORE?

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MR. NASSIRI:

YES, YOUR HONOR.

ACTUAL INJURY IS NOT REQUIRED HERE.

SHE'S

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AGGRIEVED BECAUSE HER STATUTORY RIGHTS WERE

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VIOLATED.
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THE COURT:

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MR. NASSIRI:

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DOES SHE SAY THAT?
SHE DOES SAY THAT,

YOUR HONOR.
THE COURT:

DOES SHE SAY I'VE SUFFERED

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WHATEVER INJURY, IT MAY NOT BE -- I UNDERSTAND SHE

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NEED NOT EXPRESS PERHAPS AN INJURY.

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SHE NEED TO SAY MORE?

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DIGGING AT HERE.

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MR. NASSIRI:

BUT DOESN'T

I GUESS THAT'S WHAT I'M

I DON'T BELIEVE SO,

YOUR HONOR.
IN, FOR EXAMPLE, IN THE DOE V. AOL CASE

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THAT THE DEFENDANTS TRY TO DISTINGUISH, LIKEWISE

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THERE, THERE WAS NO ALLEGATION THAT ANY THIRD PARTY

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HAD ACTUALLY MISUSED ANY OF THE DATA.

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THE COURT:

BUT THAT WAS ACTUAL

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DISSEMINATION OF ACTUAL REAL LIVE PERSONAL

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INFORMATION.

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THERE WERE OTHER BANKS NUMBERS AND OTHER REAL,

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REAL, WHAT WE ALL WOULD RECOGNIZE AS PERSONAL

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INFORMATION.

THERE WERE SOCIAL SECURITY NUMBERS,

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DID THAT HAPPEN IN THAT CASE?

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MR. NASSIRI:

IT'S NOT CLEAR WHETHER THAT

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HAPPENED WITH RESPECT TO THE MAIN PLAINTIFF,

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YOUR HONOR.

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THE CRUX OF THE ISSUE.

AND I DON'T THINK THAT THAT'S REALLY

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IT'S NOT APPROPRIATE ON A MOTION TO

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DISMISS TO DECIDE THAT A SOCIAL SECURITY NUMBER

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WOULD AGGRIEVE SOMEBODY BY A VANITY SEARCH THAT

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ALLOWS THIRD PARTIES OR INCREASES THE RISK THAT ALL

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OF YOUR OTHER ANONYMOUS DATA THAT WILL BE CONNECTED

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TO YOU IS NOT SUFFICIENT TO CONFER STANDING.

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THE COURT:

SO WHAT I GUESS, AND THANK

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YOU FOR SPEAKING WITH ME ABOUT THIS, I GUESS WHAT I

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HAVE HERE IS YOUR COMPLAINT THAT GOES TO GREAT

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DETAIL, IN GREAT DETAIL THAT TALKS ABOUT WHAT THIRD

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PARTY THESE BUSINESSES, THESE OTHER CONCERNS DO

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WITH THIS INFORMATION.

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AND THEY HAVE GREAT POSSIBILITIES TO

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AGGREGATE AND DO ALL THESE MINING OF INFORMATION

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AND PUT TOGETHER THEIR PROGRAMS THAT CAN DIVINE AND

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SEARCH OUT AND FIND PEOPLE'S INFORMATION.

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SO YOU'VE EDUCATED THE COURT INDICATING

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THESE CONCERNS EXIST, THEY ARE OUT THERE.

AND

19

YOU'VE INDICATED TO THE COURT WHAT YOUR CLIENT HAS

20

DONE IN THIS VANITY SEARCH IN HER NAME AND HER

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FAMILY'S NAMES.

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AND I GUESS WHAT YOU ARE SAYING IS, GEE,

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ALL OF THIS EXISTS OUT THERE, JUDGE, AND MY CLIENT

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IS AGGRIEVED BECAUSE ALL OF THIS EXISTS.

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DOES THERE NEED TO BE MORE?

DO I NEED TO
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1

HEAR MORE WITH HOW YOUR CLIENT WAS AGGRIEVED?

2

I GUESS WHAT I'M FOCUSED ON, AND I

3

APOLOGIZE FOR THIS, PERHAPS, BUT I'M JUST FOCUSED

4

ON THAT WORD.

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SOMEONE TO GAIN ACCESS TO RELIEF HERE.

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THAT SEEMS TO BE THE KEY WORD FOR

IS IT ENOUGH FOR HER TO SAY I'M, BUT DOES

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SHE NEED TO SAY I'M AGGRIEVED BECAUSE I HAVE

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HEADACHES AS A RESULT OF THIS.

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BECAUSE I SUFFERED GRIEF BECAUSE OF THIS.

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I'M

AGGRIEVED BECAUSE I AM WORRIED ABOUT THIS.

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12

I'M AGGRIEVED

IS IT JUST ENOUGH TO SAY AGGRIEVED, OR
NEED SHE SAY MORE?

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MR. NASSIRI:

I THINK THE EXAMPLES THAT

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THE COURT JUST GAVE, I SUFFER HEADACHES OR ITS COST

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ME SOMETHING, THAT'S NOT NECESSARY UNDER THE

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STATUTE.

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AND THEN CHIEF JUDGE WALKER UNDER THE

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VERY SAME STATUTE THAT WE ARE BRINGING THIS CLAIM

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UNDER, DIDN'T REQUIRE THAT.

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REQUIRE IN THAT CASE, AT&T HAD MADE AVAILABLE TO

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THE GOVERNMENT THE CONTENTS OF COMMUNICATIONS OF

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ITS USERS.

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AND IN FACT DIDN'T

PLAINTIFF THERE COULD NOT ALLEGE THAT ANY

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THAT THE GOVERNMENT ACTUALLY SOUGHT OR USED THAT

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INFORMATION.
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THE COURT:

THAT WAS AN ECPA CASE?

2

MR. NASSIRI:

YOU KNOW, I DON'T RECALL,

3

YOUR HONOR.

4

THEY ARE AGGRIEVED BECAUSE THE STATUTE SAYS THEY

5

ARE ENTITLED TO KEEP THE CONTENTS OF THEIR

6

COMMUNICATIONS PRIVATE.

7

BUT IN THAT CASE JUDGE WALKER SAID

AND PLAINTIFF DID NOT HAVE TO ACTUALLY

8

ALLEGE THAT ANYTHING ACTUALLY HAPPENED.

LIKEWISE

9

IN KROTTNER THE NINTH CIRCUIT SAID PLAINTIFFS THERE

10

DIDN'T ALLEGE THAT THEIR IDENTITIES WERE ACTUALLY

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STOLEN.

12

THEY ARE OUT THERE.

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ACT WHICH INCREASES THE RISK OF FUTURE HARM THAT

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THE PLAINTIFF WOULD OTHERWISE HAVE FACED IS

15

SUFFICIENT TO CONFER STANDING."

16

THEY SAID THEY MIGHT BE STOLEN NOW BUT
AND THE NINTH CIRCUIT SAID "AN

THAT'S WHAT WE'VE ALLEGED HERE,

17

YOUR HONOR.

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RISK OF IDENTITY THEFT, PRIVACY HARM, FINANCIAL

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FRAUD, ALL OF THESE THINGS.

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FUNCTIONALLY INDISTINGUISHABLE FROM WHAT WAS

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SUFFICIENT TO CONFER STANDING IN /KROT /TPHER, AND

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IN DOE V AOL.

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WHAT GOOGLE IS DOING IS INCREASING THE

AND WE BELIEVE IT'S

IN NONE OF THOSE CASES DID PLAINTIFF

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ALLEGE I'VE GOT HEADACHES OR I CAN'T SLEEP ANYMORE.

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AND NOT ONLY THAT, THEY DIDN'T EVEN ALLEGE THAT
20

1

ANYONE HAD MISUSED THEIR INFORMATION.

2

SO WE BELIEVE THAT WE'VE MET THE

3

THRESHOLD HERE UNDER ARTICLE III.

4

PREVAILS, I'M SORRY ON THE AGGRIEVED ISSUE, I

5

HADN'T FOCUSED ON THAT IN THE PAPERS, IT WASN'T

6

BROUGHT UP IN THE MOTION TO DISMISS, BUT THAT'S OUR

7

TAKE ON IT

8
9
10

THE COURT:
DON'T WE.

IF PLAINTIFF

YOU KNOW THAT'S WHAT WE DO,

WE ASK YOU THINGS THAT HAVEN'T BEEN

RAISED IN THE PAPERS.

11

SOMETHING ELSE?

12

MR. NASSIRI:

13

MY COLLEAGUE WOULD LIKE TO GET UP AND

YES, YOUR HONOR.

14

ADDRESS THE BREACH OF CONTRACT CLAIM.

15

SUPPLEMENTAL AUTHORITY TO SUBMIT, IF WE ARE DONE ON

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THIS.

17

THE COURT:

18

YES.

19

MR. ASCHENBRENER:

WE HAVE SOME

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25

YOUR HONOR.

YES, I THINK THAT'S FINE.

GOOD MORNING,

MICHAEL ASCHENBRENER.

I WOULD LIKE TO FOLLOW UP JUST VERY, VERY
BRIEFLY ON THE COMMENTS OF MY COLLEAGUE HERE.
FIRST, HEPTING WAS AN ECPA CASE TO ANSWER
THE COURT'S QUESTION ON THAT.
AND SECOND -- EXCUSE ME, YOUR HONOR?
21

1

THE COURT:

NO, GO AHEAD.

2

MR. ASCHENBRENER:

AND THEN ALSO TO ECHO

3

THE COMMENTS OF MY COLLEAGUE HERE, THE COURT HAS

4

ASKED WHETHER TO BE AGGRIEVED MORE IS REQUIRED.

5

AND OUR POSITION, AND IT'S IN THE PAPERS

6

AS WELL SO I WILL BE BRIEF ABOUT IT, IS NO MORE IS

7

NOT REQUIRED.

8
9

THAT'S THE CASE, WORTH SAYS THAT, IN RE
FACEBOOK SAYS THAT.

AS MANY OF THE CASES WE CITED

10

STATE, CONGRESS HAS THE RIGHT TO CREATE THROUGH

11

STATUTE THESE RIGHTS AND THUS CREATE STANDING AS

12

WELL.

13

AND THAT'S ALL THAT'S REQUIRED.
SO WHERE MY COMMENT WAS ARGUING IT AND

14

STATING THAT, YOU KNOW, HEADACHES ARE NOT NECESSARY

15

AND, YOU KNOW, MONEY DAMAGES ARE NOT NECESSARY

16

THOSE THINGS TO BE AGGRIEVED UNDER THE STATUTE, I

17

WOULD ALSO POINT THE COURT TO THOSE CASES AS WELL

18

FROM OUR BRIEF.

19

THE COURT:

I THINK I UNDERSTAND THAT.

20

YOU DON'T HAVE TO SAY I SUFFERED MONETARY DAMAGES

21

OR ANY OF THAT.

22

AND THESE OTHER CASES I THINK THE

23

STARBUCKS CASE AND THOSE CASES I THINK IT'S PRETTY

24

CLEAR, YOU KNOW, THE DAMAGE, THE POTENTIAL DAMAGE

25

OR HARM THAT IT -- THAT WAS A REAL CLEAR AND
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1

PRESENT HARM, IF YOU WILL.

2

MR. ASCHENBRENER:

OKAY.

3

THE COURT:

4

I GUESS I FOCUSED ON THIS WORLD

SO I GET THAT.

5

"AGGRIEVED" AND WHETHER OR NOT THAT IS SOMETHING

6

THAT SHOULD BE OF CONCERN.

7

MR. ASCHENBRENER:

8

AND OPPOSING COUNSEL OPENED WITH SEVERAL

9

OKAY.

POINTS ABOUT -- PARTICULARLY ABOUT THE STATE LAW

10

CLAIMS.

11

COURT HAS NOT OPPOSED ANY QUESTIONS

12
13

I'M HAPPY TO ADDRESS ALL OF THOSE.

THE COURT:

THE

NO, I DON'T THINK I NEED ANY

MORE INFORMATION ON THOSE.

14

MR. ASCHENBRENER:

IF I MAY -- WITH ONE

15

POINT ON THAT YOUR HONOR, IF I MAY APPROACH AND

16

SUBMIT ONE CASE THAT WAS NOT IN THE BRIEFING.

17

HAS BEEN SUPPLIED THIS MORNING TO OPPOSING COUNSEL.

18
19
20
21

THE COURT:

IT

THIS IS IN RELATION -- WHICH

ISSUE?
MR. ASCHENBRENER:

THIS IS IN RELATION TO

CONTRACT DAMAGES, UNJUST ENRICHMENT, BOTH.

22

THE COURT:

23

MR. ASCHENBRENER:

STATE LAW CLAIM.

24

THE COURT:

WELL, I'M HAPPY TO

25

THIS IS THE STATE --

OKAY.

RECEIVE IT.
23

1
2

MR. ASCHENBRENER:

THE COURT:

4

MR. EDWARDS:

6

THANK YOU,

YOUR HONOR.

3

5

OKAY.

DO YOU HAVE THIS, COUNSEL?
YES, YOUR HONOR.

I GOT IT

THIS MORNING.
MR. ASCHENBRENER:

AND IF THE COURT

7

PREFERS I NOT MAKE ARGUMENT, I CAN POINT TO A

8

PINPOINT CITE ORALLY.

9

IT IS SECTION TWO OF THE NINTH CIRCUIT'S DECISION.

PAGES 668 AND 669, I BELIEVE

10

THE COURT:

OKAY.

THANK YOU.

11

ANYTHING ELSE YOU WOULD LIKE ME TO HEAR?

12

MR. ASCHENBRENER:

NO.

IF THE COURT IS

13

SATISFIED AS TO THE ARGUMENTS MADE BY OPPOSING

14

COUNSEL THEN I WILL RESPECT THE COURT'S WISHES.

15

THE COURT:

THANK YOU.

16

MR. EDWARDS, YOU GET THE LAST WORD.

17

MR. EDWARDS:

18

I WILL JUST BE VERY BRIEF.

19

FIRST, JUST WITH RESPECT TO THE NEW

THANK YOU, YOUR HONOR.

20

CONTRACT CASE THAT COUNSEL HANDED UP THIS MORNING.

21

I HAVEN'T HAD A CHANCE TO STUDY IT AT ANY LENGTH SO

22

I CAN'T PROVIDE MUCH COMMENT ON IT.

23

MAKE TWO POINTS.

I WOULD ONLY

24

ONE IS IT APPEARS TO BE DIRECTED TO

25

BREACH OF CONTRACT CASE OR BREACH OF CONTRACT
24

1

PROTECTING TRADE SECRETS.

2

AND MY OTHER COMMENT WOULD BE TO THE

3

EXTENT THAT THE COURT FEELS THAT THIS CASE IS

4

SIGNIFICANT AND POTENTIALLY DISPOSITIVE, I DON'T

5

BELIEVE IT WOULD BE DISPOSITIVE OF ALL THE

6

ARGUMENTS AGAINST THE CONTRACT CLAIM, BUT I WOULD

7

LIKE AN OPPORTUNITY TO ADDRESS IT AT THAT TIME.

8

THEN I WOULD LIKE TO MAKE TWO RESPONSES

9

WITH RESPECT TO WHAT COUNSEL SAID ON THE STANDING

10
11

ISSUE.
FIRST, WITH THE KROTTNER CASE, NOT TO

12

BELABOR THE POINT, BUT WE MAKE THIS POINT IN THE

13

REPLY BRIEF ON PAGE 3.

14

IN THAT CASE HAD BEEN STOLEN AND PLAINTIFFS HAD

15

SUED BASED ON THE RISK IT WOULD BE STOLEN IN SOME

16

POINT OF THE FUTURE, WE WOULD FIND THAT THREAT FAR

17

LESS CREDIBLE.

18

THE COURT SAID IF NO LAPTOP

SO I DON'T THINK /KROT /TPHER SUPPORTS

19

THE PLAINTIFF IN THIS CASE BECAUSE THE FAR MORE

20

CREDIBLE THREAT AND FAR MORE SPECULATIVE OF WHAT

21

THE NINTH CIRCUIT WAS HYPOTHESIZING THERE IS WHAT

22

WE HAVE HERE.

23

THEN THE FINAL POINT I WOULD LIKE TO MAKE

24

IS IN RESPONSE TO THE VERY FIRST POINT COUNSEL MADE

25

WHICH IS ATTEMPTING ONCE AGAIN TO SET UP SOME
25

1

INCONSISTENCY IN GOOGLE'S ARGUMENT SAYING WELL, WE

2

ARE ARGUING PREEMPTION THEREFORE WE MUST HAVE

3

CONCEDED STANDING.

4

THAT'S NOT THE CASE AT ALL.

5

ONE, WE'RE ALLOWED TO MAKE ALTERNATIVE

6

ARGUMENTS IN THE EVENT THAT YOUR HONOR DOESN'T

7

AGREE WITH US ON THE STANDING CLAIM, WE BELIEVE

8

THERE ARE ADDITIONAL ARGUMENTS TO BE MADE.

9

EVEN IN THE BUNNELL CASE ONE OF THE TWO

10

CASES WE CITE FIND EXPRESS PREEMPTION UNDER THE

11

SCA.

12

THERE WASN'T A VALID CLAIM UNDER THE SCA

13

EITHER, FOR DIFFERENT REASONS.

14

BELIEVE IT WAS THE WIRE TAP ACT WHICH IS THE OTHER

15

PART OF ECPA BESIDES THE SCA THAT BUNNELL DEALT

16

WITH.

17

I APOLOGIZE, I

PREEMPTION IS NOT JUDGED BASED ON YOU

18

HAVE TO HAVE A VALID CAUSE OF ACTION UNDER THE

19

FEDERAL LAW AND LIABILITY MUST EXIST BEFORE YOU CAN

20

PREEMPT STATE LAW CLAIMS.

21

YOU PREEMPT THE STATE LAW CLAIMS IF THEY

22

ARE TRYING TO COVER ESSENTIALLY THE SAME

23

ALLEGATIONS AND THAT'S SQUARELY TRUE HERE, SO I

24

WANTED TO MAKE THAT POINT AS WELL.

25

AND I WOULD BE HAPPY TO RESPOND TO ANY
26

1

FURTHER QUESTIONS.

2
3

THE COURT:

MR. NASSIRI:

YOUR HONOR, MAY I MAKE ONE

LAST COMMENT?

6
7

THAT IS VERY

HELPFUL.

4
5

NO, THANK YOU.

THE COURT:

WELL, HE GETS THE LAST WORD

YOU SEE.

8

WHAT IS IT YOU WOULD LIKE ME TO KNOW?

9

MR. NASSIRI:

WELL, YOUR HONOR, COUNSEL

10

SAID THAT THIS IS NOT A CREDIBLE THREAT.

11

BENCH SAID SOMETHING ABOUT CLEAR AND PRESENT HARM

12

IN THE /KROT /TPHER CASE.

13

AND THE

I UNDERSTAND THAT WHETHER THERE'S AN

14

INCREASED RISK OF HARM IN THIS CASE KIND OF BLURS

15

THE LINE BETWEEN THE LEGAL QUESTION AND FACTUAL

16

QUESTION.

17

WE WOULD SUBMIT THAT WE'VE ALLEGED ENOUGH

18

HERE AND IT'S RELATIVELY CUTTING EDGE TECHNOLOGY,

19

SAY THAT THERE IS AN INCREASED RISK AND YOU SHOULD

20

ALLOW THE CASE TO PROCEED.

21

I JUST WANTED TO HIGHLIGHT FOR THE COURT

22

SOMETHING WE DISCUSSED AT LENGTH IN OUR PAPERS

23

WHICH IS GOOGLE ITSELF IN THE GONZALES MATTER --

24
25

THE COURT:

YOU KNOW, THIS IS ABOUT THE

JUDICIAL ESTOPPEL ISSUE?
27

1

MR. NASSIRI:

2

AND IN THAT CASE THEY ARE --

3

THE COURT:

4

YES, YOUR HONOR.

I THINK THAT WAS

DISTINGUISHABLE THOUGH.

5

I THINK THAT IS DISTINGUISHABLE AND I

6

APPRECIATE YOUR PURSUING THE JUDICIAL ESTOPPEL

7

ARGUMENT.

8
9

I DON'T THINK IT'S ON ALL SQUARES AS TO
THAT.

AND I APPRECIATE THE INFORMATION ABOUT THE

10

POSITION GOOGLE TOOK, IS THAT FIVE YEARS AGO, SEVEN

11

YEARS AGO?

12

MR. NASSIRI:

YES, YOUR HONOR.

13

EVEN IF IT DOESN'T MEET THE REQUIREMENTS

14

FOR JUDICIAL ESTOPPEL, IT SHOULD GIVE THE COURT

15

PAUSE TO CONSIDER WHETHER OR NOT DISSEMINATION OF

16

SEARCH QUERIES INCREASES THE RISK OF PRIVACY AS

17

GOOGLE ARGUED.

18
19
20

THE COURT:

I'VE READ WHAT YOU SAID ABOUT

THAT IN THE PAPERS.
I APPRECIATE THE BACKGROUND INFORMATION

21

AS TO THAT AND ALL THE OTHER TECHNOLOGY ISSUES THAT

22

YOU SUGGEST, SO I APPRECIATE THAT.

23

MR. NASSIRI:

THANK YOU, YOUR HONOR.

24

THE COURT:

25

ANYTHING ELSE, MR. EDWARDS.

YOU'RE WELCOME.

28

1
2

MR. EDWARDS:

YOUR HONOR, I MAY BE ABLE

TO DO IT IN ONE SENTENCE.

3

NONE OF THOSE ISSUES REALLY ADDRESS THE

4

DEFICIENCIES WITH RESPECT TO MS. GAOS WHO IS THE

5

PLAINTIFF IN THIS CASE.

6

THE COURT:

7

WELL, THANK YOU VERY MUCH.

8
9
10

OKAY.
I ENJOYED

THIS.
THANK YOU.
GET AN ORDER.

I APPRECIATE IT.

YOU WILL

THANK YOU.

11

MR. NASSIRI:

THANK YOU, YOUR HONOR.

12

MR. EDWARDS:

THANK YOU, YOUR HONOR.

13

MR. ASCHENBRENER:

14

(WHEREUPON, THE PROCEEDINGS IN THIS

15

THANK YOU, YOUR HONOR.

MATTER WERE CONCLUDED.)

16
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25
29

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4

CERTIFICATE OF REPORTER

5
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8
9

I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

10

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

11

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

12

CERTIFY:

13

THAT THE FOREGOING TRANSCRIPT,

14

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

15

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

16

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

17

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

18

TRANSCRIPTION TO THE BEST OF MY ABILITY.

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__________________________
SUMMER A. FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

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