In re Google RTB Consumer Privacy Litigation

Background

The parties disputed Google LLC’s retrieval of four documents that it had previously produced in discovery. Google claimed that the documents, or portions of them, were protected by attorney-client privilege or the attorney work-product doctrine. The plaintiffs challenged Google’s retrieval notice, its privilege-log descriptions, and the substance of its privilege claims. They asked the court to order production or review the documents privately.

The court explained that attorney-client privilege protects confidential communications made to obtain or provide legal advice. The work-product doctrine generally protects materials prepared by or for a party or its representative in anticipation of litigation, including legal strategies and attorneys’ mental impressions. Google had the burden of supporting its claims, including through a privilege log that described the documents sufficiently for the opposing party and court to evaluate the claims.

Clawback procedure

The court held that its August 10, 2022 order concerning retrieval of inadvertently produced privileged material applied to documents produced in this action and later claimed to be privileged or protected. Its November 17, 2022 order about the sufficiency of Google’s privilege logs did not replace that earlier procedure.

For Entry #10495, the plaintiffs had relied on the document’s substance in a discovery-dispute filing. Google’s retrieval notice was due December 2, 2022, but Google served it on December 5. The court found the notice untimely but concluded that the short delay and lack of prejudice did not automatically waive Google’s protections. The court could not decide the privilege and work-product issues on the record provided because Google had not adequately addressed the plaintiffs’ arguments that the document primarily concerned business operations rather than legal advice and that a regulatory investigation alone did not establish preparation for litigation.

Individual documents

For Entry #10494, Google described the document as a memorandum reflecting product counsel’s legal advice about policy compliance. The plaintiffs argued that it primarily concerned product planning for non-personalized real-time-bidding advertisements and that Google had not identified the attorneys whose comments were redacted. The court likewise found the record insufficient to resolve the dispute.

For Entries #9373 and #9741, Google described the documents as notes seeking and reflecting legal advice from Uchechi Chima-okereke regarding privacy issues. The court reviewed the redacted versions and agreed that Google’s privilege-log descriptions were sufficient if the redactions reflected communications addressed to or made by Mr. Chima-okereke. If the redacted text instead involved communications addressed to or made by another attorney, Google had to submit the documents for private review.

Disposition

The court ordered Google to submit Entries #10495 and #10494 for private judicial review by March 15, 2023. It rejected the plaintiffs’ challenge to Google’s privilege claims for Entries #9373 and #9741, subject to the stated requirement that Google submit those documents for private review if the redactions involved attorneys other than Mr. Chima-okereke.