In re Google RTB Consumer Privacy Litigation

Background

Plaintiffs moved under Federal Rule of Civil Procedure 37 for an order finding Google LLC in contempt of earlier discovery orders and imposing sanctions for the loss of electronically stored information. They also requested an order preventing Google from making a particular argument at trial and an instruction allowing the jury to infer that the lost information would have harmed Google.

The dispute concerned data relating to named plaintiffs and information connected with real-time-bidding transactions. In an August 2022 discovery order, the court directed Google to produce documents sufficient to show, for each named plaintiff, what information specific to that plaintiff was shared with a real-time-bidding participant and details about that sharing. The court did not order Google to produce all information that Google internally linked to an account holder.

In April 2023, the court denied an earlier sanctions motion but stated that Google’s productions of named-plaintiff data had to be easy to compare with one another and had to include fields needed for that purpose. In May 2023, the court directed Google to investigate whether certain related information could be produced with Google Account IDs, and the parties later reported that Google could produce the information it had agreed to provide. The court issued no further order resolving any remaining dispute on that issue.

Plaintiffs later requested four additional data samples. Google agreed to produce them but said it would not decrypt certain encrypted values or provide information that could be used to decrypt particular pseudonymous identifiers. Google produced the samples after the retention period for all of them had expired. Plaintiffs filed the present motion on April 19, 2024.

Ruling

The court first held that the motion was untimely. Fact discovery ended on January 19, 2024, and the deadline for discovery-related motions had been extended to February 2, 2024. Plaintiffs filed this motion more than two months later. The court found that plaintiffs had not shown good cause for missing the deadline or that they filed as soon as practicable after learning the basis for the motion.

The court also denied the motion on the merits. For contempt, plaintiffs had to prove by clear and convincing evidence that Google violated a specific and definite order. The court concluded that its April and May 2023 orders did not clearly require Google to preserve and produce the decrypted information plaintiffs identified. The April order addressed the ability to correlate data productions, while the May order required Google to investigate whether certain information could be produced and directed the parties to report back. The court found no clear and definite order requiring the production or preservation plaintiffs claimed.

For sanctions concerning electronically stored information, the court concluded that plaintiffs had not shown that Google acted unreasonably or intended to deprive them of the information’s use in the litigation. The court also was not persuaded that plaintiffs suffered evidentiary prejudice. It therefore denied plaintiffs’ request for contempt, evidentiary sanctions, and an adverse-inference instruction.

Disposition

The court denied plaintiffs’ motion for an order finding Google in contempt under Rule 37(b)(2)(A) and for evidentiary sanctions and an adverse-inference instruction under Rule 37(e).