In re Google RTB Consumer Privacy Litigation

Background

The parties asked the court to resolve two discovery disputes concerning plaintiffs’ depositions of Google witnesses. First, plaintiffs sought permission to take at least five depositions beyond the 10-deposition limit in Federal Rule of Civil Procedure 30. They identified five Google employees who helped compile information for Google’s answers to Interrogatories 11–14 and also sought advance permission to depose any Google employee who submitted a substantive declaration supporting Google’s opposition to plaintiffs’ class-certification motion.

Second, plaintiffs asked the court to require Google to designate a corporate representative under Rule 30(b)(6). That rule allows a party to question an organization through one or more designated witnesses about matters described with reasonable particularity. The requested topics included Google’s data systems, account-holder consent, document practices, and preservation of information.

Google argued that the additional depositions were cumulative, duplicative, and disproportionate to the needs of the case. It also argued that Topics 5, 7, 8, and 9 sought information outside the permissible scope of discovery, were overbroad, or sought irrelevant information. Google further argued that the depositions should not occur before September 29, 2023, its deadline to oppose class certification.

Additional deposition request

The court found that plaintiffs had made a particularized showing of need for testimony about Google’s recent answers to Interrogatories 11–14. But the court concluded that plaintiffs did not need depositions of each of the five specifically identified employees. Instead, the court ordered Google to prepare corporate designees to testify about:

The court denied without prejudice plaintiffs’ request for advance permission to depose any Google employee who later submitted a substantive declaration supporting Google’s class-certification opposition because no such declarations had been filed.

Rule 30(b)(6) topics

For Topic 5, the court required Google to provide a corporate designee, but narrowed the topic. The testimony must concern records showing how information shared with real-time bidding participants was logged, mapped, associated, or linked to personal Google accounts in connection with real-time bidding auctions. It does not cover Google’s general collection, creation, or storage of account-holder information. The court overruled Google’s objection to testimony about mapping account-holder information in connection with real-time bidding auctions.

For Topic 7, the court agreed that plaintiffs were entitled to discovery about Google’s consent defense but did not require a separate witness on that topic. Google’s representative was instead required to testify fully about Topic 6, which concerned the mechanisms and procedures for obtaining account holders’ consent to share or sell specified information with third parties outside Google in Google’s real-time bidding system.

For Topic 8, the court denied plaintiffs’ request for testimony about Google employees’ creation, use, maintenance, and retention of emails, chats, presentations, memoranda, and other documents. The court found that plaintiffs had not shown why witnesses’ inability to remember every document they had authored or received justified such a broad inquiry. The court stated that the denial was without prejudice to a more particularized deposition topic if necessary.

For Topic 9, the court did not require testimony about Google’s litigation holds and preservation of data and records. The court found the proposed inquiry too expansive because plaintiffs sought information about preservation efforts throughout the case rather than targeting a particular log or data source. The court suggested that plaintiffs accept Google’s offer to provide verified written responses about data preservation.

Timing and disposition

The court encouraged the parties to agree on dates for Google’s corporate designees to testify promptly after September 29, 2023. It found that plaintiffs had not persuasively explained why the testimony was needed before that date.

The court ordered Google to provide Rule 30(b)(6) testimony on Topics 1, 4, 5 as clarified, and 6, as well as the four additional topics concerning Google’s answers to Interrogatories 11–14. Google was not required to provide Rule 30(b)(6) testimony on Topics 3, 7, 8, or 9. The order was signed by Virginia K. Demarchi, United States Magistrate Judge.