In re Google RTB Consumer Privacy Litigation

Background

Plaintiffs and Google LLC asked the court to resolve a discovery dispute about the sufficiency of Google’s privilege logs and its claims of attorney-client privilege and attorney work product protection. Google’s logs contained nearly 10,500 entries, and plaintiffs challenged 5,470 of them. Plaintiffs sought production of all challenged documents or, alternatively, additional information supporting Google’s privilege and work-product assertions.

Legal standards

The court applied federal privilege law because the case includes federal and state claims and no party argued that the disputed documents related only to state-law claims. Attorney-client privilege protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. The work-product doctrine generally protects materials prepared for litigation, including counsel’s legal strategies and mental impressions, but ordinarily does not protect facts.

A party asserting privilege or work-product protection must provide enough information for the other side and the court to evaluate the claim without revealing the protected information. A privilege log is one way to make that initial showing. The Ninth Circuit identifies information such as the attorney and client involved, the document’s nature, the people or entities who sent or received it or learned its substance, and the date as relevant to that showing.

Court’s analysis

The court held that the Ninth Circuit does not require a privilege log to include every item plaintiffs requested, such as a document title or subject line, the organizational positions of authors and recipients, or detailed information about the issue, regulation, or policy discussed. The court reasoned that this information was unlikely to make it easier to determine whether a document sought or contained legal advice.

At the same time, the court found that Google’s logs did not include, for every disputed entry, all information that Ninth Circuit decisions identified as sufficient for an initial privilege showing. Some example entries lacked the author’s name, the attorney involved, or information about all known recipients or people informed of the document’s substance. The court also stated that the number of documents withheld raised questions about whether Google’s privilege assertions were broader than Ninth Circuit law permits, and that the dispute could not be meaningfully evaluated for all 5,470 entries from the logs alone.

Order

The court denied without prejudice plaintiffs’ request for relief and ordered further proceedings rather than deciding the privilege claims for all disputed documents. The parties were directed to treat 18 identified entries as representative examples. For each, Google had to provide plaintiffs with the date; the individual author, sender, or custodian if known; all known recipients; the attorneys involved; the document’s nature and subject matter; and the privilege or protection claimed. For distribution-list communications, Google could provide the list’s current membership, describe the list, and state whether it included non-Google employees when the communication was sent. Google had to provide this information by December 1, 2022.

After receiving the information, plaintiffs could file a regularly noticed motion challenging the privilege assertions for those entries. If Google opposed the motion, it had to submit the corresponding documents for in camera review, meaning private review by the court. The court stated that it would later decide whether additional proceedings were necessary. The order was signed by Magistrate Judge Virginia K. Demarchi.