Dyer v. DOES 1-10
- Joseph Spero
- 3:23-cv-01226
- U.S. District Court · Northern District of California
- 2
In Dyer v. DOES 1-10, Judge Spero ordered Google to explain its subpoena noncompliance but did not decide contempt.
The plaintiff and non-party Google were affected. Google was required to respond to the order, attend the continued case management conference, and address its compliance with the subpoena; the plaintiff was required to serve the order and file proof of service.
What happened
In Dyer v. DOES 1-10, the plaintiff asked the court to hold non-party Google in contempt and require it to comply with a subpoena. The subpoena response included a secure link that did not work, and the plaintiff said Google did not provide a functioning replacement after repeated requests.
The court treated the motions as a request for an order requiring Google to explain why it should not be held in contempt, and granted that request. The court did not decide whether Google ultimately failed to comply with the subpoena or should be held in contempt.
Judge Joseph C. Spero continued the case management conference to March 22, 2024, ordered Google to attend, and required Google to respond by March 29, 2024. The court scheduled a show-cause hearing for April 5, 2024, but said those dates could be canceled if a written response and hearing were unnecessary.
The detailed version
- Dyer v. DOES 1-10 · No. 3:23-cv-01226
- Joseph Spero
- Mar. 4, 2024
Background
The plaintiff filed two motions under Rule 45 of the Federal Rules of Civil Procedure seeking to hold non-party Google Inc. in civil contempt and compel compliance with a subpoena issued by the court. The court construed the motions as an application for an order to show cause, meaning an order requiring Google to explain why it should not be held in contempt.
The plaintiff presented evidence that she properly served the subpoena issued on December 18, 2023. Google made a production through a secure link, but the link did not function properly. The plaintiff stated that she received no response to repeated requests that Google send a functional link.
Court’s Analysis
To establish civil contempt, the plaintiff must prove by clear and convincing evidence that Google violated a specific court order. If that burden is met, Google must show that it took every reasonable step to comply and explain why compliance was not possible. The court stated that the plaintiff had shown a violation of a specific and definite court order for purposes of requiring Google to respond.
The court expressly did not decide whether Google had failed to comply with the subpoena or whether Google should ultimately be held in contempt. Those issues were left for consideration after Google responded to the order.
Ruling and Schedule
The court granted the application for an order to show cause and ordered Google to explain why it should not be held in contempt for failing to comply with the subpoena. It continued the case management conference from March 8, 2024, to March 22, 2024, and ordered Google to appear and address its compliance. Google was ordered to file its response by March 29, 2024. The court scheduled a show-cause hearing for April 5, 2024, by video conference, while stating that it could cancel those dates if it determined that a written response and formal hearing were unnecessary. The plaintiff was ordered to serve the order on Google and file proof of service.
Disposition
The application was granted. The order did not impose a contempt finding or decide the ultimate subpoena-compliance issue.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.