AdTrader, Inc. v. Google LLC

Background

The operative complaint alleged that Google failed to properly refund or credit advertisers for invalid traffic on three advertising platforms: DoubleClick Ad Exchange (AdX), the AdWords program, and DoubleClick Bid Manager (DBM). The plaintiffs sought certification of three proposed classes and one subclass. The court had certified only a class of AdWords advertisers for claims involving breach of the AdWords agreement and violation of California's False Advertising Law; it denied certification as to the plaintiffs' other proposed classes.

AdTrader, Inc. also asserted four individual claims against Google: breach of the AdX Publisher Agreement, breach of the implied duty of good faith and fair dealing concerning that agreement, intentional interference with contract, and declaratory relief. The opinion states that AdTrader's individual claims included a claim that Google failed to refund $173 for invalid traffic on the DBM platform.

In February 2021, the plaintiffs served a deposition notice under Federal Rule of Civil Procedure 30(b)(6). That rule permits a party to question an organization through a witness designated to testify about information known or reasonably available to the organization. The parties disputed whether Topics 4, 5, 6, and 7 were within the proper scope of discovery.

Legal standard

Under Rule 26(b)(1), discovery must concern information relevant to a claim or defense and proportional to the needs of the case. Proportionality considers factors including the importance of the issues, the amount at stake, the parties' access to information and resources, the importance of the discovery, and whether the burden or expense outweighs its likely benefit. Under Rule 26(c)(1)(A), the court may issue a protective order for good cause to prevent undue burden or expense, including by forbidding discovery.

The court's analysis

Topic 4. Topic 4 sought testimony about Google's policies, guidelines, and practices for withholding or debiting funds from AdX publishers because of invalid traffic or policy violations. Google agreed to provide testimony about refund policies and practices for AdWords advertisers but objected to testimony about AdX and DBM advertisers.

The plaintiffs argued that the AdWords and AdX agreements contained identical refund language and that differences in Google's practices could support the AdWords class's contract and false-advertising claims. The court rejected that reasoning, explaining that Google's practices concerning AdX advertisers did not show whether Google complied with its separate contractual obligations to AdWords advertisers. The court also found that the plaintiffs had not explained how AdX and DBM practices related to the alleged uniform refund promise or to AdTrader's individual claims. Even if a connection could be shown, the court found the requested discovery disproportionate to AdTrader's $173 claim.

The court therefore ruled that Google did not need to provide testimony for Topic 4 beyond what it had already agreed to provide.

Topic 5. Topic 5 sought testimony about Google's policies and practices for providing DBM advertisers refunds for invalid traffic originating from a third-party ad exchange. The plaintiffs argued that this discovery related to AdTrader's individual DBM refund claim. The court found that the plaintiffs had not explained how the requested policies and practices related to an issue in dispute and again found the discovery disproportionate to a claim worth $173. Google therefore did not need to provide testimony for Topic 5.

Topic 6. Topic 6 sought testimony about Google's representations to AdWords and AdX advertisers, third-party exchanges, the Securities and Exchange Commission, and the Media Rating Council concerning Google's policy of refunding advertisers for invalid traffic. Google agreed to provide testimony about its policies for AdWords advertisers but objected to broader testimony about AdX advertisers, third-party exchanges, and AdX refund policies.

Because the court had already found AdX refund policies and practices irrelevant for Topic 4, and because the plaintiffs did not explain why representations to third parties were relevant, the court ruled that Google did not need to provide testimony for Topic 6 beyond what it had already agreed to provide.

Topic 7. Topic 7 sought testimony about Google's policies and practices for charging AdWords and AdX advertisers for Google's services. Google agreed to provide a witness about how it charged AdWords advertisers but objected to the remainder of the topic. The court found that the plaintiffs had not adequately justified discovery about AdX advertisers or shown that it was proportional to the needs of the case, including AdTrader's individual claims. Google therefore did not need to provide testimony beyond what it had already agreed to provide.

Disposition

The court granted Google's motion for a protective order. The order limited the Rule 30(b)(6) deposition as described above: Google need not testify on Topic 5, and need not provide testimony on Topics 4, 6, or 7 beyond the testimony it had already agreed to provide.