In re Google Assistant Privacy Litigation

Background

The court addressed the parties’ discovery dispute concerning section 7.4(a)(2) of the Model Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets. That provision required a party to provide identifying information about a retained expert before showing the expert another party’s “Highly Confidential–Attorneys’ Eyes Only” information. The party whose documents were involved then had 14 days to object to the expert’s access, under sections 7.4(b) and 7.4(c).

Plaintiffs objected to the requirement as applied to both testifying and non-testifying experts. They argued that identifying the experts invaded attorney-client privilege and the attorney work-product doctrine, that there was no substantial need for the disclosures in this case, and that the requirement prejudiced Plaintiffs. Defendants argued that the provision was justified because the information was extremely sensitive and represented a substantial risk of harm if disclosed. Defendants offered to accept modest changes to the required identifying information.

Court’s Analysis

The court found the cases Plaintiffs cited distinguishable. It concluded that Federal Rule of Civil Procedure 26 did not prohibit discovery of an expert’s identity and that the protective order itself addressed the substantial need for advance identification when an expert would receive highly confidential information. In the court’s view, the party whose information was at risk should have an opportunity to vet the expert rather than rely only on the opposing expert’s self-assessment of conflicts.

The court also noted that the protective order gave Plaintiffs opportunities to challenge whether information was properly designated as highly confidential and to respond to any objection to an expert. The court was not persuaded that the identification requirement placed Plaintiffs at a disadvantage.

Ruling

Judge Susan Van Keulen denied Plaintiffs’ motion to exclude or modify the identification requirements in section 7.4(a)(2). The court nevertheless ordered that the provision be modified based on Defendants’ proposed compromise. The required disclosures are limited to: (1) the expert’s full name and the city and state of the expert’s primary residence, and (2) a copy of the expert’s current résumé covering at least the previous five years of work.

The court also directed the parties to correct a typographical error in section 7.3(b) of the draft protective order and submit a revised protective order within seven days. Either party could seek relief from the order within 14 days by filing a motion with the district judge in the case.