Free Range Content, Inc. v. Google Inc.

Filing 133

Order by Magistrate Judge Howard R. Lloyd re: Dkt. No. 132 Discovery Dispute Joint Report #1. (hrllc3S, COURT STAFF) (Filed on 10/11/2016)

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1 E-filed 10/11/16 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 FREE RANGE CONTENT, INC., et al., Plaintiffs, United States District Court Northern District of California 11 12 13 ORDER RE: DISCOVERY DISPUTE JOINT REPORT #1 v. GOOGLE INC., Re: Dkt. No. 132 Defendant. 14 15 Case No.14-cv-02329-BLF (HRL) The parties have agreed to all but one term in a Stipulated Protective Order. They request 16 that the court resolve their dispute over which language from the court’s model protective order 17 for litigation involving patents, highly sensitive confidential information and/or trade secrets (“the 18 model order”) should apply to the disclosure of another party’s Highly Confidential—Attorneys’ 19 Eyes Only (“Highly Confidential”) information to an expert or consultant. Plaintiff Free Range 20 Content, Inc. (“Free Range”) argues that the language in footnote 7 of the model order should 21 govern, while defendant Google, Inc. (“Google”) argues that Section 7.4(a)(2) of the model order 22 should apply. 23 Footnote seven of the model order allows disclosure of Highly Confidential information to 24 a non-testifying expert without revealing the expert’s identity to the designating party “as long as 25 the Expert is not a current officer, director, or employee of a competitor of a Party or anticipated to 26 become one.” Model Order, n. 7. In contrast, Section 7.4(a)(2) requires the party seeking to 27 disclose highly confidential information to a non-testifying expert to first reveal the expert’s name, 28 resume, employer, and clients, among other information, and allows the designating party an 1 opportunity to object. Background 2 This is a potential class action suit regarding Google’s AdSense program. In this program, 3 4 Google sells advertising space to third-party advertisers, and AdSense program participants like 5 Free Range publish the ads Google sends them. The advertisers pay Google, and Google pays the 6 publishers, based on the traffic their sites generate for the advertisers. Dkt. No. 132, p. 1. This 7 lawsuit concerns plaintiffs’ allegations that Google withheld unpaid earnings when it terminated 8 their AdSense accounts. Id. Google employs a team to filter out “spam”—false clicks or views intended to fraudulently 9 pull more money from advertisers for web traffic that does not exist. Dkt. No. 132, p. 7. In the 11 United States District Court Northern District of California 10 present dispute, Google seeks the more protective language in the court’s model protective order 12 to prevent competitors or spammers from learning about Google’s filters. Id. Google asserts that 13 inadvertent disclosure of its filtering procedures would damage AdSense’s reputation and 14 Google’s competitive advantage. Id. Free Range argues that the identity of its consulting experts represents protected work 15 16 product information that is not typically discoverable, and that Google has failed to make a 17 sufficient showing to justify requiring disclosure. Dkt. No. 132, pp. 3-5. Additionally, Free 18 Range offers a compromise, in which it will conduct a reasonable investigation into its consulting 19 experts to ensure that they are not past, present, or anticipated future competitors of Google. Id. at 20 p. 3. 21 22 Discussion Upon a showing of good cause, the Court may “protect a party or person from annoyance, 23 embarrassment, oppression, or undue burden or expense” in discovery by “requiring that trade 24 secret or other confidential . . . commercial information not be revealed, or be revealed only in a 25 specified way.” See Fed. R. Civ. P. 26(c)(1)(G); Nygren et al. v. Hewlett-Packard Co., No. C07- 26 05793-JW (HRL), 2008 WL 2610558, at *1 (N.D. Cal. July 1, 2008). Good cause generally 27 requires the moving party to show that “specific prejudice or harm” will result absent a protective 28 order. Kelora Systems, LLC v. Target Corp., No. C-11-01548 (LB), 2011 U.S. Dist. LEXIS 2 1 96724, at *6 (N.D. Cal. Aug. 29, 2011). The Northern District has approved and posted a model 2 protective order to its website ( “[T]he 3 court treats [its] model protective order as setting forth presumptively reasonable conditions 4 regarding the treatment of highly confidential information.” Id. at *7. Free Range argues that Google seeks to discover protected work product (the identities of 5 6 consulting experts), and so Google must show “substantial need” for this information. Dkt. No. 7 132, p. 4, citing Corley v. Google, Inc., 16-cv-00473-LHK (HRL), 2016 WL 3421402, at *3 (N.D. 8 Cal. June 22, 2016). Free Range, relying on this court’s opinion in Corley v. Google, argues that 9 Google fails to make such a showing, characterizing defendant’s concerns as “unexceptional” and “no more than the ordinary risks ‘inherent to the civil discovery of confidential information.’” 11 United States District Court Northern District of California 10 Dkt. No. 132, at p. 5, quoting Corley, 2016 WL 3421402, at *3. In Corley, however, defendant Google’s showing was particularly weak, and the plaintiffs 12 13 made a showing of good cause. In that case, Google argued it needed to know the identities of 14 consulting experts (1) to guard against harms the experts might inflict and (2) because Google is 15 uniquely vulnerable to abuse of its confidential information as a result of its high profile and status 16 as a frequent litigant.1 2016 WL 3421402 at *3. The court found these risks generic and 17 unpersuasive. Id. In contrast, the plaintiffs in Corley established good cause for preserving 18 consulting experts’ anonymity by showing that they would have experienced significant difficulty 19 hiring experts if their identities were disclosed. Id. 20 The court is persuaded that Corley is distinguishable here with respect to the showings of 21 both the defendant and the plaintiffs. In the present case, Google argues that its spam filters and 22 signals are the subjects of “more than a hundred thousand Google personnel hours” each year, and 23 that spammers are “constantly” trying to find new ways of defeating Google’s defenses. Dkt. No. 24 132, Lobel-Fried Decl. at ¶ 3. Google also specifically described the great pains it takes to ensure 25 the secrecy of its filter information, both on a regular basis and in connection with the present 26 litigation. Id. at ¶¶ 4, 7-8. These measures are necessary, Google asserts, to “maintain advertiser 27 28 1 The court cited a third justification provided by Google, as well, but it is not relevant here. 3 1 trust” in its products and to guard against the negation of its filtering efforts should the 2 information fall into the hands of bad actors. Id. at ¶¶ 5, 6. These allegations of specific prejudice 3 or harm—that a bad actor with access to Google’s confidential information could undermine all of 4 its described efforts—combined with the fact that Google is asking for a presumptively reasonable 5 provision in the court’s model protective order, distinguishes Google’s showing from that made in 6 Corley. Google here shows the substantial need for protection that was lacking in the earlier case. Free Range, on the other hand, fails to show good cause for the (albeit presumptively 7 reasonable) provision it requests. In contrast to the Corley plaintiffs’ showing that they would 9 have trouble finding experts if the court adopted Google’s preferred provision, Free Range here 10 asserts that (1) the parties are not competitors, (2) the provision Google requests exposes work 11 United States District Court Northern District of California 8 product, (3) Google’s provision adds “needless delay and complexity,” and (4) “such a provision 12 can be used strategically.” Dkt. No. 132, pp. 2-3. While the parties here are not competitors, this 13 fact does not amount to a showing of good cause.2 The court is not persuaded by reasons 2 and 4, 14 as the court surely took these risks into account when drafting the language of the model 15 protective order that Google prefers, and Free Range makes no specific showing of prejudice or 16 harm beyond reciting these concerns in general terms. Finally, Google’s compromise offers—to 17 reduce its time to object to disclosure to an expert from 14 days to 4 business days and to half its 18 time to oppose a motion for disclosure—mitigate Free Range’s concerns about needless delay. Conclusion 19 20 The court is persuaded that Google has succeeded and Free Range has failed to make the 21 requisite showing justifying its preferred provision. The court instructs the parties to include the 22 language from Section 7.4(a)(2) of the court’s model protective order in their stipulated protective 23 order. Additionally, the court orders Google to reduce its time for objections to experts from 14 24 days to 4 business days and to half its time to oppose motions for disclosure. IT IS SO ORDERED. 25 26 2 27 28 Free Range cites a case in which the fact that the parties were not competitors persuaded the court, but in that case, the defendant did not provide any authority in which the parties were not competitors to support its position. See Nygren v. Hewlett-Packard Co., No. C07-05793-JW (HRL), 2008 WL 2610558, at *1 (N.D. Cal. July 1, 2008). 4 1 Dated: 10/11/2016 2 3 HOWARD R. LLOYD United States Magistrate Judge 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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