Brown et al v. Google LLC et al

Filing 191

ORDER re #177 Discovery Letter Brief. Further Discovery Status Chart due by 8/2/2021. Discovery Hearing set for 8/12/2021 09:30 AM. Signed by Judge Susan van Keulen on 6/8/2021. (Attachments: #1 Exhibit chart of discovery rulings)(svklc1S, COURT STAFF) (Filed on 6/8/2021)

Dispute
No.
P1
4/7/21

Dispute
Selection of Google
custodians: The parties have
a dispute regarding which
Google employees to include
as document custodians.

Court Order (6/8/21)
As discovery proceeds, it is inevitable, as we have already seen this case, that there will be a
need to add custodians and/or search terms for all or some of the custodians. It appears the
parties need further direction from the Court, beyond what is provided in the ESI order and
relevant subsequent orders of this Court.
Accordingly, the parties are to provide: (1) a joint summary of the evolution of ESI search
terms and custodians in this case, including agreed upon protocol for adding custodians and
terms thus far; (2) Plaintiffs’/
Defendant’s proposals as to how to manage the addition of custodians and terms going
forward, including proposed end-dates and caps for additional custodians or terms. The
parties must meet and confer and make a good faith effort to reach agreement on a protocol.
The foregoing is to be included in a joint letter submission not to exceed 5 pages by
June 25, 2021.
Finally, as discussed at the June 2 hearing, and clarified herein, productions from specific
custodians must identify the custodian. Productions made pursuant to non-custodial
searches need not be tied to specific RFPs.

P2
4/7/21

Google’s search terms: The
parties have a dispute
regarding which search terms
Google should apply to
identify potentially responsive
documents.

With regards to the custodians added in the April 13, 2021 order, not more than ten search
terms shall apply.
Whether the number of terms has been further reduced from 10 by agreement of the parties
or by court order is unclear from the parties’ submission, may not yet be ripe, and may be
addressed in process set forth above in P1 and therefore is not addressed by the Court at this
time.
Finally, although the search term limitations in the April 13 order may be appropriate for
other custodians, the order did not, either expressly or impliedly, cover all additional
custodians for all time.

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Dispute
No.

Dispute

Court Order (6/8/21)

P3
4/7/21

Google’s production of
Plaintiffs’ data: The parties
have a dispute regarding
Plaintiffs’ RFP No. 18:
“Documents concerning
Plaintiffs, including Plaintiffs’
use of Google services, all data
collected by Google from and
regarding Plaintiffs, and
Google’s use of all data
collected by Google from and
regarding Plaintiffs.”

The Court continues to weigh how discovery may be completed efficiently and in a timely
manner into the related issues of (1) what information Defendant has regarding Plaintiffs;
and (2) what information Defendants have regarding identification of putative class
members.
First, the Court requests additional briefing on issues P3 & P6 following the 30(b)6
depositions scheduled in these cases on June 11 and June 16, respectively. Plaintiffs’ brief
in support of its motion to compel will be due Wednesday, June 23, 2021; Defendant’s
opposition will be due June 30, 2021. Briefs are not to exceed 10 pages. The parties may
submit no more than 8 exhibits with a supporting declaration providing foundation and/or a
brief explanation of the attachments; declarations are not to contain argument.
Second, the Court is considering the appointment of a special master under Rule 53 with
sufficient technical expertise to assist the Court in evaluating the parties’ arguments and
responses on the foregoing issues in particular and, if necessary, on future discovery
disputes. Neutrality of the special master would be required (Rule 53(a)(2)), and he/she
would be selected following 2 nominations by each side, the parties meeting and conferring
(as this may be an area where the proper candidate is obvious) and, if necessary, the Court
making the selection. The Court will hear from the parties as to this approach,
including any concerns set forth in Rule 53(a)(3), in a joint letter not to exceed 7 pages
by June 18, 2021. .

P4
4/7/21

Google server logs: The
parties have a dispute
regarding preservation and
production of Google server
logs regarding Google’s
collection and use of private
browsing information.

With regards to the issue of document retention, Plaintiffs can inquire as to Google’s
general practices and protocols with respect to databases, as well as what it would take to
make adjustments to or suspend those practices and protocols. If new facts arise concerning
logs or Google’s ability to deviate from retention practices, the Court may consider them in
the future.

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Dispute
No.

Dispute

Court Order (6/8/21)

P5
4/7/21

Google’s preservation of
custodial ESI: The parties
have a dispute regarding the
extent to which the Court’s
ESI Order (Dkt. 91) requires
Google to preserve custodial
ESI back to June 1, 2008.

P6
4/7/21

Class member identification:
The parties have a dispute
regarding Plaintiffs’ RFP No.
10: “Documents sufficient to
identify all alleged class
members, including all
electronic or physical address
information associated with
alleged class members.”

See P3 above.

P7
4/7/21

Logged in and logged out:
The parties have a dispute
regarding what constitutes
logged in and logged out
behavior.

This issue is at least tangentially related to P3 and may be resolved by rulings on those
issues. Accordingly, at this time the court defers this issue.

P8
4/7/21

Plaintiffs’ Consulting
Experts: The parties may
have a dispute regarding
Plaintiffs’ ability to show
protective order materials to
their retained experts.

P9
4/23/21

Google production of
custodial documents
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Dispute
No.

Dispute

Court Order (6/8/21)

responsive to particular
requests: The parties have a
dispute regarding whether
Google will produce custodial
documents responsive to
certain document requests.
P10
4/23/21

Google timeline for
producing custodial
documents: The parties have
a dispute regarding the
timeline for Google’s
production of custodial
documents.

P11
4/23/21

Google’s production of
Board documents: The
parties have a dispute
regarding Google’s production
of documents responsive to
RFP No. 13: “Handouts and
presentations to or from any
Google C-level executive or
board member and committee
or board meeting minutes
discussing any private
browsing mode, including
Incognito mode.”

P12
4/23/21

The June 18 deadline holds for the original custodians (those identified or addressed in the
April 30 order – original 10 + 7 custodians) and terms (101 terms for original 10 + 10 terms
for additional 7).
.
The deadline for custodian productions for custodians and searches agreed upon as of
the date of this order is extended to July 31, 2021.

Google production of other
non-custodial documents:
The parties have a dispute
regarding whether Google will
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Dispute
No.

Dispute

Court Order (6/8/21)

produce non-custodial
documents responsive to
certain document requests.
P13
4/23/21

Google’s responses to
Interrogatory Nos. 5-7: The
parties have a dispute
regarding Google’s responses
to these interrogatories.

The Parties are to continue their meet and confer efforts on these issues. By way of
guidance, the Court notes that an interrogatory asking for identification of personnel with
responsibility for a reasonable set of clearly defined tasks or events may be an efficient
means of identifying relevant persons.

P14
5/26/21

Access to non-public Google
source code: The parties have
a dispute regarding Plaintiffs’
requests for access to nonpublic Google source code.

This issue is not yet ripe.

P15
5/26/21

Cross-use: The parties have a
dispute regarding cross-use of
discovery between Brown and
Calhoun.

The parties are to continue their meet and confer efforts, with both sides compromising from
their proposed positions as directed on the record at the June 2 hearing.

P16
5/26/21

X-Client Data: The parties
have a dispute regarding
Plaintiffs’ RFP 120:
“Documents sufficient to
identify, during the Class
Period, Chrome web browser
communications that did not
contain any X-Client Data
Header.”
Google’s Requests for
Admission Nos. 1, 2, 3, 4

The Court has considered the parties’ previous submissions and argument on this issue and
requests supplemental briefing on the following specific question: What is Plaintiffs’ factual
basis to dispute Google’s position that there are multiple reasons why the X-Client Data
field may be empty and therefore the empty field does not necessarily identify class
members? Google is to respond to Plaintiff’s position.
The submission is to be a joint letter brief not to exceed 7 pages. The parties are to
negotiate the exchange of their respective sections and submit the brief to the Court by
July 9, 2021.

D1

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Dispute
Dispute
No.
D2
Google’s Interrogatories Nos.
7, 9, 10
D3
Google’s Requests for
Production No. 2, 7
D4
Google’s Requests for
Admission Nos. 12 and 14

Court Order (6/8/21)

The parties’ submission on this issue is not helpful to the Court. The Court will set a date in
the future for submission of disputes regarding written discovery.

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Chart A
Dispute
No.

Request

P6
4/23/21

Plaintiffs RFP 10: Documents
sufficient to identify all alleged
class members, including all
electronic or physical address
information associated with
alleged class members.

P13
4/23/21

Plaintiffs Interrogatory No. 5:
Please IDENTIFY one copy of
each version of each and every
PUBLIC DISCLOSURE in
which a WEBSITE that uses a
GOOGLE THIRD-PARTY
SERVICE informs USERS that
USERS’ INFORMATION will
be collected (by the WEBSITE
or by GOOGLE)
notwithstanding the USERS’
BROWSER SETTINGS.

P15
5/26/21

Court Order (6/8/21)

Plaintiffs’ RFP 120: Documents
sufficient to identify, during the
Class Period, Chrome web
browser communications that
did not contain any X-Client
Data Header

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Case No. 5:20-cv-03664-LHK-SVK