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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E-filed 10/11/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FREE RANGE CONTENT, INC., et al.,
Plaintiffs,

United States District Court
Northern District of California

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ORDER RE: DISCOVERY DISPUTE
JOINT REPORT #1

v.
GOOGLE INC.,

Re: Dkt. No. 132

Defendant.

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Case No.14-cv-02329-BLF (HRL)

The parties have agreed to all but one term in a Stipulated Protective Order. They request

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that the court resolve their dispute over which language from the court’s model protective order

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for litigation involving patents, highly sensitive confidential information and/or trade secrets (“the

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model order”) should apply to the disclosure of another party’s Highly Confidential—Attorneys’

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Eyes Only (“Highly Confidential”) information to an expert or consultant. Plaintiff Free Range

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Content, Inc. (“Free Range”) argues that the language in footnote 7 of the model order should

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govern, while defendant Google, Inc. (“Google”) argues that Section 7.4(a)(2) of the model order

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should apply.

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Footnote seven of the model order allows disclosure of Highly Confidential information to

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a non-testifying expert without revealing the expert’s identity to the designating party “as long as

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the Expert is not a current officer, director, or employee of a competitor of a Party or anticipated to

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become one.” Model Order, n. 7. In contrast, Section 7.4(a)(2) requires the party seeking to

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disclose highly confidential information to a non-testifying expert to first reveal the expert’s name,

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resume, employer, and clients, among other information, and allows the designating party an

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opportunity to object.
Background

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This is a potential class action suit regarding Google’s AdSense program. In this program,

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Google sells advertising space to third-party advertisers, and AdSense program participants like

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Free Range publish the ads Google sends them. The advertisers pay Google, and Google pays the

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publishers, based on the traffic their sites generate for the advertisers. Dkt. No. 132, p. 1. This

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lawsuit concerns plaintiffs’ allegations that Google withheld unpaid earnings when it terminated

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their AdSense accounts. Id.
Google employs a team to filter out “spam”—false clicks or views intended to fraudulently

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pull more money from advertisers for web traffic that does not exist. Dkt. No. 132, p. 7. In the

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United States District Court
Northern District of California

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present dispute, Google seeks the more protective language in the court’s model protective order

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to prevent competitors or spammers from learning about Google’s filters. Id. Google asserts that

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inadvertent disclosure of its filtering procedures would damage AdSense’s reputation and

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Google’s competitive advantage. Id.
Free Range argues that the identity of its consulting experts represents protected work

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product information that is not typically discoverable, and that Google has failed to make a

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sufficient showing to justify requiring disclosure. Dkt. No. 132, pp. 3-5. Additionally, Free

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Range offers a compromise, in which it will conduct a reasonable investigation into its consulting

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experts to ensure that they are not past, present, or anticipated future competitors of Google. Id. at

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p. 3.

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Discussion
Upon a showing of good cause, the Court may “protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense” in discovery by “requiring that trade

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secret or other confidential . . . commercial information not be revealed, or be revealed only in a

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specified way.” See Fed. R. Civ. P. 26(c)(1)(G); Nygren et al. v. Hewlett-Packard Co., No. C07-

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05793-JW (HRL), 2008 WL 2610558, at *1 (N.D. Cal. July 1, 2008). Good cause generally

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requires the moving party to show that “specific prejudice or harm” will result absent a protective

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order. Kelora Systems, LLC v. Target Corp., No. C-11-01548 (LB), 2011 U.S. Dist. LEXIS
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96724, at *6 (N.D. Cal. Aug. 29, 2011). The Northern District has approved and posted a model

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protective order to its website (http://www.cand.uscourts.gov/model-protective-orders). “[T]he

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court treats [its] model protective order as setting forth presumptively reasonable conditions

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regarding the treatment of highly confidential information.” Id. at *7.
Free Range argues that Google seeks to discover protected work product (the identities of

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consulting experts), and so Google must show “substantial need” for this information. Dkt. No.

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132, p. 4, citing Corley v. Google, Inc., 16-cv-00473-LHK (HRL), 2016 WL 3421402, at *3 (N.D.

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Cal. June 22, 2016). Free Range, relying on this court’s opinion in Corley v. Google, argues that

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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.’”

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United States District Court
Northern District of California

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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

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made a showing of good cause. In that case, Google argued it needed to know the identities of

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consulting experts (1) to guard against harms the experts might inflict and (2) because Google is

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uniquely vulnerable to abuse of its confidential information as a result of its high profile and status

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as a frequent litigant.1 2016 WL 3421402 at *3. The court found these risks generic and

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unpersuasive. Id. In contrast, the plaintiffs in Corley established good cause for preserving

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consulting experts’ anonymity by showing that they would have experienced significant difficulty

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hiring experts if their identities were disclosed. Id.

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The court is persuaded that Corley is distinguishable here with respect to the showings of

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both the defendant and the plaintiffs. In the present case, Google argues that its spam filters and

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signals are the subjects of “more than a hundred thousand Google personnel hours” each year, and

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that spammers are “constantly” trying to find new ways of defeating Google’s defenses. Dkt. No.

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132, Lobel-Fried Decl. at ¶ 3. Google also specifically described the great pains it takes to ensure

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the secrecy of its filter information, both on a regular basis and in connection with the present

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litigation. Id. at ¶¶ 4, 7-8. These measures are necessary, Google asserts, to “maintain advertiser

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The court cited a third justification provided by Google, as well, but it is not relevant here.
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trust” in its products and to guard against the negation of its filtering efforts should the

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information fall into the hands of bad actors. Id. at ¶¶ 5, 6. These allegations of specific prejudice

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or harm—that a bad actor with access to Google’s confidential information could undermine all of

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its described efforts—combined with the fact that Google is asking for a presumptively reasonable

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provision in the court’s model protective order, distinguishes Google’s showing from that made in

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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

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reasonable) provision it requests. In contrast to the Corley plaintiffs’ showing that they would

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have trouble finding experts if the court adopted Google’s preferred provision, Free Range here

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asserts that (1) the parties are not competitors, (2) the provision Google requests exposes work

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United States District Court
Northern District of California

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product, (3) Google’s provision adds “needless delay and complexity,” and (4) “such a provision

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can be used strategically.” Dkt. No. 132, pp. 2-3. While the parties here are not competitors, this

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fact does not amount to a showing of good cause.2 The court is not persuaded by reasons 2 and 4,

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as the court surely took these risks into account when drafting the language of the model

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protective order that Google prefers, and Free Range makes no specific showing of prejudice or

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harm beyond reciting these concerns in general terms. Finally, Google’s compromise offers—to

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reduce its time to object to disclosure to an expert from 14 days to 4 business days and to half its

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time to oppose a motion for disclosure—mitigate Free Range’s concerns about needless delay.
Conclusion

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The court is persuaded that Google has succeeded and Free Range has failed to make the

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requisite showing justifying its preferred provision. The court instructs the parties to include the

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language from Section 7.4(a)(2) of the court’s model protective order in their stipulated protective

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order. Additionally, the court orders Google to reduce its time for objections to experts from 14

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days to 4 business days and to half its time to oppose motions for disclosure.
IT IS SO ORDERED.

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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).
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Dated: 10/11/2016

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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