In re Google RTB Consumer Privacy Litigation

Background

Plaintiffs challenged Google LLC’s withholding or partial withholding of documents based on attorney-client privilege and attorney work-product protection. Plaintiffs had challenged approximately 5,470 of nearly 10,500 entries on Google’s privilege logs. The court narrowed the motion to 18 documents, and the parties resolved their dispute over nine of them, leaving nine entries for decision: #4, #41, #285, #660, #1231, #1262, #2813, #3265, and #9955.

The court reviewed each disputed document privately. The parties agreed that federal common law governed Google’s privilege and work-product claims. Attorney-client privilege protects confidential communications made to obtain or provide legal advice. The work-product doctrine generally protects materials prepared for litigation that reveal an attorney’s legal strategies or mental impressions. Google, as the party asserting protection, had the burden to show that the privilege or protection applied.

Rulings on the disputed entries

- Entry #4: Google’s privilege-log description did not match the document, which appeared to be a completed form seeking factual information about a project. The court found that only limited portions appeared to contain legal advice or guidance. Google could redact the first sentence in gray text under prompt 4 and all gray text under prompt 7, but it had not shown that the rest of the document was privileged. The remaining material had to be produced. - Entry #41: Although the document looked somewhat like a memorandum and identified a project, a technical lead, and “PCounsel,” it did not appear to contain legal advice. Google had not shown the document’s purpose or that it was a draft communication seeking legal advice. Google had to produce it. - Entry #660: The document appeared largely to summarize technical and business actions related to the effective date of the General Data Protection Regulation. Google provided no declaration or other evidence showing that the document reflected legal advice. The court found that one passage reflected a legal evaluation and allowed Google to redact the text next to the number “5” on the second page. Google had to produce the rest. - Entry #2813: This was an automated email aggregating comments on an underlying document. After reviewing the underlying document, the court found that it appeared privileged. Google could withhold Entry #2813. - Entry #3265: The document was an email exchange among Google employees about information needed to obtain legal advice and advice already received. Although it did not contain a direct request from an employee to an attorney, the court found that it related to seeking or obtaining legal advice. Google could withhold it. - Entry #285: The court found that the email’s purpose was to seek legal advice. Although it was copied to 21 non-attorney employees, the document identified many recipients’ roles and why employees in strategy, operations, and engineering were included. The distribution did not defeat confidentiality. Google could withhold it. - Entry #1231: Only the earliest portion of the multi-part email string involved obtaining information at an attorney’s direction for legal advice. That portion could be redacted. The later portion, beginning with an exchange among employees, appeared to be a purely technical discussion and had to be produced. - Entry #1262: Only exchanges directly addressed to or sent from an attorney clearly involved legal advice. Google did not show that the other portions were privileged or that the potentially privileged communications were shared only with employees who needed to know the information. Google had to produce the entry. - Entry #9955: Plaintiffs no longer challenged redactions related to the investigation described by Google. The court’s review showed that all comments concerned that investigation. Google could withhold the entry on that basis.

Disposition

The court granted in part and denied in part plaintiffs’ motion to compel. It granted the motion as to Entries #4, #41, #660, #1231, and #1262, with redactions permitted for Entries #4, #660, and #1231. It denied the motion as to Entries #285, #2813, #3265, and #9955. Google had to produce the required documents by February 21, 2023.