AdTrader, Inc. v. Google LLC

Filing 101

ORDER by Magistrate Judge Virginia K. DeMarchi denying 85 defendant's Motion for Reconsideration; granting 91 defendant's Motion for Administrative Relief. (vkdlc2S, COURT STAFF) (Filed on 11/20/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADTRADER, INC., ET AL.,

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Plaintiffs,

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v.

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GOOGLE LLC,

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United States District Court
Northern District of California

Case No.17-cv-07082-BLF (VKD)

Defendant.

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ORDER DENYING DEFENDANT'S
MOTION FOR RECONSIDERATION
AND GRANTING DEFENDANT'S
MOTION FOR ADMINISTRATIVE
RELIEF
Re: Dkt. Nos. 85, 91

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On October 30, 2018 the Court issued an order granting plaintiff AdTrader, Inc.’s

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(“AdTrader”) motion to compel defendant Google LLC (“Google”) to provide the names and

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contact information of advertisers whose identities are called for by AdTrader’s Interrogatory No.

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4. Dkt. No. 84. Google seeks reconsideration of that order, and also seeks relief from the deadline

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set in that order.1 Dkt. Nos. 85, 91. The Court heard oral argument on both matters.

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I.

GOOGLE’S MOTION FOR RECONSIDERATION

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Google argues that reconsideration of the Court’s discovery order is warranted by its

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discovery of new facts not available to Google at the time the original dispute was submitted to the

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Court. Specifically, Google argues that the records responsive to Interrogatory No. 4 will include

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approximately 50,000 advertisers in this action and approximately 45,000 advertisers in another

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action, Bulletin Marketing et al. v. Google LLC, Case no. 5:17-cv-07211-BLF, with some overlap

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between the two actions. Of the approximately 90,000 advertisers in the two actions, the

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The motion for reconsideration was directed to Judge Freeman, who referred the matter to the
undersigned on November 8, 2018. Dkt. Nos. 85 at n.1, 89.

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overwhelming majority will have received credits or refunds from Google that total $100 or less,

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and more than half will have received credits or refunds of $1 or less. Google says that it did not

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have this information when it first briefed this discovery dispute in September.

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Google argues that the large number of advertisers and low value of the credits and refunds

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most received render the discovery AdTrader seeks disproportionate to the needs of the case. In

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addition, Google says that it wishes to provide “notice” to each of the 90,000 advertisers in

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advance of providing their names and contact information to AdTrader’s counsel, and that the

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provision of notice and the burden of responding to any inquiries Google receives from advertisers

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following such notice make the discovery sought particularly burdensome.

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As an initial matter, Google does not say why it could not have presented in its original

United States District Court
Northern District of California

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submission the arguments it makes now in its motion for reconsideration. As Google

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acknowledges, the information responsive to Interrogatory No. 4 is maintained in one or more

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databases that may be queried to obtain the responsive information. Google does not explain how

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the number of advertisers at issue or the amount of the credits and refunds they received was not

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information available to Google in advance of briefing the original submission of this dispute.

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The question of providing notice of the discovery sought to advertisers, whether as a legal

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obligation or business necessity, also could have been raised in the original submission but was

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not. In short, Google has not shown that reconsideration of this Court’s October 30, 2018 is

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warranted by the discovery of new facts that were not available to Google in advance of the

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original submission. See Civil L.R. 7-9(b) (describing standard for reconsideration); see also Dkt.

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No. 85 at n.1.

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Even if Google had made a showing that warranted reconsideration of the Court’s prior

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order, Google has not demonstrated that the discovery AdTrader seeks is irrelevant to its claims or

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disproportionate to the needs of the case. AdTrader asks for the advertisers’ names, contact

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information, unique ID, refund amount, and date of refund. AdTrader says that this information

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will permit it to test Google’s assertions that credits or refunds were provided corresponding to the

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accrued AdX earnings Google withheld from AdTrader. This information can be exported from

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one or more databases, and Google does not contend that that process is at all burdensome. The
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only alleged burden is the one Google has taken on itself. It wishes to provide advance notice to

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the advertisers of the disclosure of their contact information (which Google contends is

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confidential) to counsel for AdTrader, although Google concedes it has no contractual or other

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legal obligation to provide such notice. This is precisely the argument the Court flagged as “not

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well-developed” in Google’s original submission, see Dkt. No. 84, and the argument remains

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unpersuasive.
As the Court indicated at the hearing on this motion, it will not prohibit Google from

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communicating with the advertisers at issue, and there is no dispute pending before the Court

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regarding any particular communication. As discovery proceeds in this case, the parties should
heed the guidance from this District on the nature and propriety of communications with putative

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United States District Court
Northern District of California

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class members, much of which is discussed at length in the Judge Laporte’s decision in Camp v.

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Alexander, 300 F.R.D. 617 (N.D. Cal. 2014). In addition, the parties should also heed the

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guidance from the Ninth Circuit and from this District regarding the nature and propriety of

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discovery from absent class members. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th

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Cir. 2017); e.g., Hollman v. Experian, No. C11-0180 CW, 2012 WL 2568202 (N.D. Cal. July 2,

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2012).

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II.

GOOGLE’S MOTION FOR ADMINISTRATIVE RELIEF

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The October 30, 2018 order requires Google to provide information responsive to

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Interrogatory No. 4 no later than November 30, 2018. Google seeks relief from that deadline, in

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view of its request for reconsideration of the Court’s decision on the underlying discovery dispute.

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Dkt. No. 91. Google asks that the Court set the deadline 15 days from today’s date. See id. at 2.

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AdTrader concedes it will not be prejudiced by this extension of the deadline.
The Court will grant Google’s request for relief.

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III.

CONCLUSION
Google’s motion for reconsideration is denied, and its motion for administrative relief is

granted. Google shall supplement its response to Interrogatory No. 4 to provide complete

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information no later than December 5, 2018.
IT IS SO ORDERED.
Dated: November 20, 2018

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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