AdTrader, Inc. v. Google LLC

Filing 104

ORDER by Magistrate Judge Virginia K. DeMarchi re 97 November 19, 2018 Joint Discovery Dispute Letter. (vkdlc2S, COURT STAFF) (Filed on 1/3/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
ADTRADER, INC., et al.,

8

Plaintiffs,

9
v.

10

GOOGLE LLC,

11

United States District Court
Northern District of California

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

Defendant.

12

ORDER RE NOVEMBER 19, 2018
JOINT DISCOVERY DISPUTE
LETTER
Re: Dkt. No. 97

Plaintiff AdTrader, Inc. (“AdTrader”) moves to compel defendant Google LLC (“Google”)

13
14

to provide additional information in response to AdTrader’s Interrogatories Nos. 7-10, 11 and 13.

15

Dkt. No. 97. Google objects that the information AdTrader seeks is not relevant to any claim or

16

defense. Id. The Court finds this matter suitable for decision without a hearing.
Having considered the submissions of the parties, the Court grants in part and denies in

17
18

part AdTrader’s motion to compel.

19

I.

20

BACKGROUND
Using Google’s Ad Exchange (“AdX”) service, website publishers sell advertising space

21

on their webpages in exchange for a share of the revenue advertisers pay to Google, and

22

advertisers buy space to display their advertising online. Dkt. No. 72 ¶ 1. Intermediary

23

companies may facilitate publishers’ and advertisers’ use of the AdX service. Network Partner

24

Managers (“NPMs”) assist publishers, and advertising agencies assist advertisers. Id. ¶¶ 25-26.

25

AdTrader was both a publisher and an NPM on behalf of other publishers, as well as an

26

advertising agency on behalf of advertisers. Id. ¶¶ 47-49. Google terminated AdTrader’s

27

publisher-side NPM account after notifying AdTrader that all of the advertising impressions on

28

AdTrader’s websites were invalid. Id. ¶ 63. Google allegedly advised AdTrader that it was

1

withholding all revenue associated with those impressions and would refund that revenue to the

2

affected advertisers. In its role as advertising agency on behalf of those affected advertisers,

3

AdTrader says it should have received the refunded revenue, but that Google did not fully refund

4

the revenue. Id. ¶¶ 76-84.
AdTrader asserts individual claims as a publisher/NPM for breach of contract, breach of

5
6

the implied covenant of good faith and fair dealing, intentional interference with contract, and

7

declaratory relief. AdTrader also asserts claims on behalf of a putative class of AdX advertisers.

8

II.

LEGAL STANDARD
A party may obtain discovery of any matter that is relevant to a claim or defense and that is

9

“proportional to the needs of case, considering the importance of the issues at stake in the action,

11

United States District Court
Northern District of California

10

the amount in controversy, the parties’ relative access to relevant information, the parties’

12

resources, the importance of the discovery in resolving the issues, and whether the burden or

13

expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

14

AdTrader bears the burden to show in the first instance that the information it seeks is relevant to a

15

claim or defense.
Here, the case involves both individual claims and putative class claims. The Court

16
17

understands that the presiding judge has not ordered bifurcation of discovery as between the

18

individual claims and the class claims.

19

III.

DISCUSSION

20

A.

21

Broadly speaking, AdTrader’s Interrogatories Nos. 7-10 are directed to discovery of

Interrogatories Nos. 7-10

22

information regarding Google’s withholding of advertising earnings from any publisher or NPM

23

due to invalid advertising activity, and Google’s alleged failure to refund or credit those withheld

24

earnings to the advertisers who paid for the ads associated with invalid activity. See Dkt. No. 97-

25

1. Although some of the interrogatories refer to other interrogatories that are not part of the record

26

of this dispute,1 the Court infers that the information sought by AdTrader is not limited to

27
28

Interrogatories Nos. 7 and 10 refer to Google’s response to Interrogatory No. 6, which is not
before the Court.
2
1

1

advertisements and earnings associated with AdTrader’s own publisher-side NPM account or its

2

own activities as an advertising agency, but encompasses discovery of activities associated with

3

the putative class or classes. See Dkt. No. 97 at 5.

4

The parties apparently have agreed that in responding to these interrogatories Google will

5

randomly select 150 AdX publishers and 300 advertisers (from each of the three different

6

advertising platforms at issue) for whom it will provide the requested information. Google objects

7

to providing the names and contact information for the sampled publishers and advertisers;

8

AdTrader insists that such information must be produced.

9

As Google correctly observes, this dispute differs from the dispute the Court addressed
previously. See Dkt. Nos. 84, 101. Interrogatories Nos. 7-10 seek information beyond the claims

11

United States District Court
Northern District of California

10

asserted by the named plaintiffs, whereas Interrogatory No. 4, at issue in the earlier dispute, sought

12

information limited to advertising earnings withheld from AdTrader only. Google observes that

13

the Court has not yet certified a class and that discovery directed to the merits of class member

14

claims is irrelevant to the question of class certification.

15

The Court understands that all of the information sought by AdTrader is maintained by

16

Google in one or more databases. Dkt. No. 99. The databases may be queried to obtain the

17

requested information, and Google does not contend that the process of extracting the requested

18

information is disproportionately burdensome. Dkt. No. 97 at 5. For purposes of this dispute the

19

Court separately considers AdTrader’s requests for publishers’ and advertisers’ names and

20

publishers’ and advertisers’ contact information.
1.

21
22

Publisher and Advertiser Names

Given the parties’ agreement to produce a sample of responsive information, the Court

23

assumes that the substantive information sought by Interrogatories Nos. 7-10 (as opposed to the

24

identifying information in dispute) is relevant to issues of class certification or other matters

25

subject to pre-certification discovery. If the substantive information is relevant, then the Court

26

must consider whether Google may remove information that uniquely identifies the entities

27

associated with responsive substantive information and replace that information with anonymous

28

identifiers.
3

1

As a general matter, courts disfavor redaction of information from responsive documents

2

solely on grounds that some information contained in the documents is not relevant. See, e.g.,

3

Live Nation Merchandise, Inc. v. Miller, No. 13-cv-03936 CW (NC), 2014 WL 1877912 at *3

4

(N.D. Cal. May 9, 2014) (collecting cases). Google gives five reasons why it nevertheless should

5

be permitted to withhold publishers’ and advertisers’ names associated with information

6

responsive to Interrogatories Nos. 7-10.

7

First, Google argues that AdTrader’s stated desire to test Google’s contentions about the

8

nature and amounts of advertising revenue received and refunds or credits provided is based on an

9

unfounded suspicion that Google’s database records are inaccurate. Second, Google argues that
AdTrader does not need to know which entities’ information is produced because Google is

11

United States District Court
Northern District of California

10

“segmenting” the sample by product and any other information about the publishers and

12

advertisers is irrelevant. Third, Google argues that because it wishes to contact each of the

13

publishers and advertisers in advance of producing their information to AdTrader, Google will

14

have to devote resources to contacting these entities and responding to their inquiries and this

15

effort will prove unduly burdensome. Fourth, the names of publishers and advertisers cannot be

16

relevant to whether AdTrader has standing to assert a claim under California’s Unfair Competition

17

Law, as the standing issue will be decided on the pleadings. Fifth, Google argues that AdTrader

18

should not be permitted to discover the names of these publishers and advertisers in order to

19

identify new class representatives. See Dkt. No. 97 at 5-6.

20

As Google acknowledges, some of these objections were made in connection with the

21

parties’ earlier dispute. For the reasons stated in the Court’s prior order, Google’s concerns about

22

the burden associated with its desire to contact publishers and advertisers and about AdTrader’s

23

possible efforts to identify new class representatives are not persuasive objections to providing the

24

names of the publishers and advertisers at issue. See Dkt. Nos. 84, 101.

25

With respect to the remainder of Google’s objections, the Court is not persuaded that there

26

are good reasons to anonymize the identities of the publishers and advertisers whose relevant

27

substantive information the parties have already agreed Google will produce, even if the identities

28

of these entities are not relevant for all of the purposes AdTrader identifies in its portion of the
4

1

joint discovery dispute letter. At a minimum, AdTrader should be able to know which publishers

2

and advertisers are associated with the responsive substantive information that Google has already

3

agreed to produce for the purely practical reason that such a production permits AdTrader to

4

understand and analyze the information it receives from the sample, and to understand how the

5

information relates to other information it has developed or discovered in the case. Moreover,

6

there is simply no legitimate reason for Google to specially curate its production to edit out

7

information it considers irrelevant where the underlying substantive information is relevant and

8

responsive.

9

Google does not contend that the entities’ names are confidential. Rather, its primary
objection continues to be that AdTrader intends to use the information to contact publishers and

11

United States District Court
Northern District of California

10

advertisers to seek discovery that it should not be permitted to obtain, or that AdTrader will

12

attempt improperly to solicit new class representatives. As Google acknowledges, neither of these

13

objected-to efforts by AdTrader is before the Court at this time. The Court will not bar discovery

14

of information that has a legitimate use simply because it may also be used for an improper

15

purpose.

16
17
18
19

Google must produce responsive information for the sampled publishers and advertisers
that includes those entities’ names.
2.

Publisher and Advertiser Contact Information

AdTrader also seeks contact information for the sampled publishers and advertisers.

20

Google objects to producing contact information for the same reasons it objects to producing the

21

names of the publishers and advertisers.

22

Presumably, AdTrader wishes to have contact information for the sampled publishers and

23

advertisers so that it may contact some or all of them about matters related to the class claims.

24

Here, Google’s argument that Interrogatories 7-10 seek information that is not limited to the

25

claims of the named plaintiffs carries more weight, as discovery from putative class members for

26

purposes of the class claims is more circumscribed than discovery from third parties in connection

27

with the individual claims of the named plaintiffs. See Briseno v. ConAgra Foods, Inc., 844 F.3d

28

1121 (9th Cir. 2017); Hollman v. Experian, No. C11-0180 CW (DMR), 2012 WL 2568202 at *3-5
5

1

(N.D. Cal. July 2, 2012) In addition, unlike the names of the publishers and advertisers, Google

2

is not proposing to manipulate or anonymize data that is otherwise associated with relevant and

3

responsive substantive information. More importantly, AdTrader’s ability to understand and

4

analyze the substantive information Google will produce in response to Interrogatories Nos. 7-10

5

will not be impeded if Google does not also provide the contact information for these publishers

6

and advertisers.

7

It is not clear from the parties’ briefing what information AdTrader ultimately seeks to

8

obtain from the sampled publishers and advertisers and whether that information is discoverable at

9

this time. For this reason, the Court denies without prejudice AdTrader’s motion to compel
production of contact information in response to Interrogatories Nos. 7-10, subject to the further

11

United States District Court
Northern District of California

10

discovery management procedures described below.

12

B.

13

Interrogatory No. 11 asks Google to state, on a quarterly basis, the total revenue it received

Interrogatories Nos. 11 and 13

14

from publishers and NPMs from January 1, 2013 through July 31, 2018. Interrogatory No. 13

15

asks Google to state, on a quarterly basis, the total revenue it received from advertisers from

16

January 1, 2013 through July 31, 2018. AdTrader says that this information is needed so that its

17

damages expert can develop a model of “the ratio of refunds/credits paid out to advertising

18

revenues received, while measured against historical figures of invalid activity detected through

19

offline analysis.” Dkt. No. 97 at 3-4. Google objects that information concerning total publisher

20

and advertising revenue is not relevant to the claims at issue in the case. Moreover, Google asserts

21

that it will produce information about the total amount of revenue it has withheld from publishers

22

and the total amount of revenue it has refunded or credited to advertisers. Id. at 7.

23

The Court is not convinced that the revenue information AdTrader seeks in Interrogatories

24

Nos. 11 and 13 is relevant to a damages model that will actually represent damages suffered based

25

on the claims asserted in this case. As Google observes, plaintiffs’ claims are directed to the

26

alleged discrepancy between payments Google withheld from publishers based on invalid

27

advertising activity and refunds or credits provided to advertisers whose ads were implicated in

28

that invalid activity. The damages model to which AdTrader refers does not appear designed to
6

1

model damages for that discrepancy; rather, it appears to model damages for possible under-

2

reporting of invalid activity to advertisers, which is not at issue here. Id. at 4 n.3.
For these reasons, the Court denies AdTrader’s motion to compel Google’s responses to

3
4

Interrogatories Nos. 11 and 13.

5

IV.

SUMMARY OF RULINGS

6

The Court grants AdTrader’s motion to compel Google to produce the names of the

7

publishers and advertisers whose information will be produced in response to Interrogatories Nos.

8

7-10. The Court denies, without prejudice, AdTrader’s motion to compel Google to produce

9

contact information for the publishers and advertisers whose information will be produced in
response to Interrogatories Nos. 7-10. The Court denies AdTrader’s motion to compel responses

11

United States District Court
Northern District of California

10

to Interrogatories Nos. 11 and 13.

12

V.

13

DISCOVERY MANAGEMENT
In recent discovery disputes both parties have raised concerns about communications with

14

and discovery of third parties who are also putative class members. Although the scope of such

15

communications and discovery has not crystallized into a dispute that requires the Court’s

16

attention, the Court believes that proactive management of such matters might benefit the conduct

17

of discovery in this case. Accordingly, the Court will hold a discovery conference on January 15,

18

2019 at 10:00 a.m. At the conference, the parties should be prepared to discuss (1) anticipated

19

communications with putative class members, (2) anticipated discovery of putative class members,

20

and (3) any stipulated or ordered limits on pre-certification discovery (see, e.g., Dkt. No. 55 at 10).

21
22

IT IS SO ORDERED.
Dated: January 3, 2019

23
24
VIRGINIA K. DEMARCHI
United States Magistrate Judge

25
26
27
28
7