Levitte v. Google Inc., No. 5:2008cv03369 - Document 91 (N.D. Cal. 2010)
Court Description: ORDER Granting 88 Motion to Modify Case Management Conference. This is the final continuance. Signed by Judge James Ware on 6/29/2010. (ecg, COURT STAFF) (Filed on 6/29/2010) (Entered: 06/29/2010)
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Levitte v. Google Inc. ER H 9 RT 8 Attorneys for Defendant GOOGLE INC. R NIA re mes Wa a J e g d u J NO 7 D RDERE O O S S IT I DIFIED AS MO FO 6 COOLEY LLP PETER J. WILLSEY (admitted pro hac vice) (pwillsey@cooley.com) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 LI 5 RT U O 4 ISTRIC ES D TC T TA A 3 S 2 COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) LEO P. NORTON (216282) (lnorton@cooley.com) 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 UNIT ED 1 Doc. 91 N F D IS T IC T O R C 6/29/2010 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 In re Google AdWords Litigation Case No. 08-cv-03369 JW HRL 16 18 UNOPPOSED MOTION FOR ADMINISTRATIVE RELIEF TO MODIFY CASE MANAGEMENT SCHEDULE 19 [Civil L.R. 7-11, 16-2(d)] 17 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN DIEGO UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL Dockets.Justia.com 1 I. INTRODUCTION 2 The parties respectfully request a 90-day extension of the current case management 3 deadlines. The primary reason for the requested extension is that defendant Google Inc. has 4 voluntarily agreed to supplement its document production regarding certain historical webpages 5 and certain data relating to the named plaintiffs’ advertisements. The information was not 6 previously produced because it is not reasonably accessible in Google’s databases. Google will 7 nevertheless undertake the substantial burden to obtain the information from its raw data logs. 8 This information is not readily accessible and may take Google several weeks to obtain and 9 produce. A brief extension will allow the noticed party depositions and expert discovery to occur 10 with the benefit of these documents. A brief extension will also accommodate the parties’ 11 continued meet-and-confer efforts regarding their respective discovery disputes and any limited 12 remaining discovery. The parties agree that absent unforeseen and extraordinary circumstances, 13 they will not seek any further extensions of the class certification case management deadlines. 14 II. FACTUAL AND PROCEDURAL BACKGROUND 15 This consolidated action is a nationwide putative class action under Rule 23 of the Federal 16 Rules of Civil Procedure. Plaintiffs assert claims for alleged violation of California Business and 17 Professions Code sections 17200 and 17500 relating to Google’s AdWords program for 18 advertisers. Plaintiffs allege that Google has harmed plaintiffs and the putative class by charging 19 them for clicks on advertisements that Google placed on parked domains and error webpages. 20 A. 21 By orders dated February 25, 2009, the Court consolidated four related class actions under 22 the above caption, appointed interim lead class counsel, and bifurcated class and merits 23 discovery. On April 24, 2009, plaintiffs filed their consolidated complaint. On May 18, 2009, 24 Google filed its answer to the consolidated complaint. 25 Consolidation and Initial Discovery. The parties then promptly commenced discovery. 26 disclosures on June 11, 2009. Plaintiffs served document requests on Google on May 27, 2009, 27 to which Google responded on July 13, 2009. Google also served document requests and 28 interrogatories on plaintiffs on July 13, 2009. Plaintiffs served responses and objections to COOLEY LLP ATTORNEYS AT LAW SAN DIEGO The parties exchanged initial 1. UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 Google’s document requests and interrogatories on September 18, 2009. 2 During this time, the parties negotiated (1) a document production protocol governing the 3 format of the parties’ document production; (2) a Stipulated Protective Order, entered by the 4 Court on August 31, 2009, and (3) a Stipulated Expert Witness Discovery Order, filed with the 5 Court on August 31, 2009, but not yet entered by the Court. 6 In response to plaintiffs’ document requests, Google commenced a rolling production of 7 documents in November 2009, with additional productions occurring in December 2009, January 8 2010, March 2010, and April 2010, amounting to more than 775,000 images as of April 2, 2010. 9 Plaintiffs made a document production of their own in December 2010. 10 B. 11 Plaintiff Bolaji Olabode was added as a named plaintiff to the consolidated action by 12 stipulation and order dated October 2, 2009. Plaintiff Olabode was later dropped as a party after 13 he died, and plaintiffs West Coast Cameras, Inc. and Richard Oesterling were added in his place 14 by order dated February 17, 2010. Pursuant to that order, plaintiffs filed an amended complaint 15 on February 22, 2010, and Google filed an amended answer on March 4, 2010. Also on March 4, 16 2010, plaintiffs supplemented their initial disclosures and plaintiffs West Coast Cameras, Inc. and 17 Richard Oesterling responded to Google’s written discovery. 18 19 20 C. Adding and Dropping of New Named Plaintiffs and Related Discovery. Informal Resolution of Discovery Disputes, Supplementation, Additional Discovery, and Depositions. In March 2010, Google raised various issues with plaintiffs’ responses to Google’s first 21 set of interrogatories. 22 responses, which they did in April 2010. Certain of the plaintiffs also voluntarily supplemented 23 their responses to Google’s requests for production. Plaintiffs also voluntarily supplemented their 24 document production in May 2010. After meeting and conferring, plaintiffs agreed to supplement their 25 On May 7 and 12, 2010, plaintiffs raised certain issues with Google’s document 26 production. The parties met and conferred over the next several weeks in an effort to resolve 27 certain of those issues without Court intervention. Google agreed to voluntarily supplement its 28 production as to certain requests, and accordingly made a supplemental production on May 24, COOLEY LLP ATTORNEYS AT LAW SAN DIEGO 2. UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2010, bringing the total images Google has produced to date to more than 780,000. 2 From February 2010 to May 2010, plaintiffs propounded five sets of interrogatories 3 totaling 51 interrogatories and a second set of document requests comprised of one additional 4 document request. As of June 18, 2010, Google has served responses to each of plaintiffs’ five 5 sets of interrogatories and second set of document requests. In April 2010 and continuing 6 through the present, plaintiffs have raised issues with certain of Google’s responses. After 7 meeting and conferring, Google agreed to supplement certain interrogatories. Google last served 8 supplemental responses on June 17, 2010. 9 The parties have noticed the depositions of eight fact witnesses—each of the six named 10 plaintiffs and two Google witnesses (Google 30(b)(6) deposition and deposition of Google 11 employee Jonathan Alferness). Absent modification of the current case management schedule, 12 the depositions are presently set to begin on June 30, 2010 and continue through July 16, 2010. 13 Without a brief extension, depositions of these fact witnesses would likely occur without the 14 benefit of the certain historical webpages and certain data regarding plaintiffs’ advertisements 15 placed on parked domains and error webpages that Google will produce in the weeks ahead. 16 D. 17 On September 17, 2009, the Court ordered the following case management schedule: 18 Prior and Current Case Management Schedules. May 24, 2010 Deadline to complete class certification discovery, including expert discovery July 9, 2010 Deadline for filing the motion for class certification August 27, 2010 Completion of all briefing on the motion for class certification 19 20 21 September 20, 2010 Hearing on the motion for class certification 22 23 Given the scope of discovery and Google’s rolling production of documents through 24 March 2010, and the need to perform additional discovery by the parties, the parties agreed to 25 modify the case management schedule. The parties moved the Court accordingly, and on March 26 9, 2010, the Court ordered the following modified case management schedule: 27 28 July 19, 2010 Deadline to complete class certification discovery, including expert discovery COOLEY LLP ATTORNEYS AT LAW SAN DIEGO 3. UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 September 3, 2010 Deadline for filing the motion for class certification 2 October 22, 2010 Completion of all briefing on the motion for class certification 3 November 15, 2010 Hearing on the motion for class certification 4 To accommodate expert discovery, the parties agreed to modify the case management 5 schedule to allow a 30-day expert discovery period after the close of fact discovery. The parties’ 6 agreement did not otherwise change the schedule. On April 26, 2010, the Court ordered the 7 following case management schedule: 8 July 19, 2010 Deadline to complete fact class certification discovery; deadline to exchange initial expert reports 10 August 19, 2010 11 September 3, 2010 Deadline for any rebuttal expert reports to be exchanged and to complete all expert class certification discovery Deadline for filing the motion for class certification 12 October 22, 2010 Completion of all briefing on the motion for class certification 13 November 15, 2010 Hearing on the motion for class certification 9 14 15 III. THE CASE MANAGEMENT SCHEDULE SHOULD BE MODIFIED DEADLINES BY A PERIOD OF APPROXIMATELY 90 DAYS EXTEND ALL 16 The parties have been able to resolve their discovery disputes without burdening the Court 17 with discovery motions. Recently, to resolve various discovery disputes, Google has agreed to 18 supplement its document production regarding certain historical webpages and certain data 19 relating to the named plaintiffs’ advertisements placed on parked domains and errors web pages. 20 The information was not previously produced because it is not reasonably accessible in Google’s 21 databases. Google will nevertheless undertake the substantial burden to obtain the information 22 from its raw data logs. But doing so will take time, and require substantial engineering time and 23 computer hours. Google estimates that it could take several weeks to obtain the requested 24 information. The parties agree that the currently scheduled depositions and contemplated expert 25 discovery should take place after the supplemental production. Also, a brief extension will allow 26 the parties additional time to attempt to resolve any outstanding discovery disputes and complete 27 any limited remaining discovery. Accordingly, the parties request a 90-day extension of the 28 current case management schedule. COOLEY LLP ATTORNEYS AT LAW SAN DIEGO TO 4. UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL 1 2 The proposed modified dates are as follows: July 26, 2010 3 4 Deadline for Google to complete supplemental production of documents regarding certain historical webpages and certain data relating to the named plaintiffs’ advertisements placed on parked domains and errors web pages 5 August 9, 2010 – Period during which parties will conduct fact depositions September 17, 2010 6 October 4, 2010 Deadline to complete fact class certification discovery; deadline to exchange initial expert reports November 19, 2010 December 17, 2010 Deadline for any rebuttal expert reports to be exchanged and to complete all expert class certification discovery Deadline for filing the motion for class certification January 28, 2011 Completion of all briefing on the motion for class certification February 28, 2011 Hearing on the motion for class certification 7 8 9 10 11 12 The parties have met and conferred regarding this motion, and plaintiffs do not oppose it. 13 The parties respectfully request that the Court enter the proposed order submitted concurrently 14 herewith. The parties agree that absent unforeseen and extraordinary circumstances, they will not 15 seek any further extensions of the class certification case management deadlines. 16 IV. 17 CONCLUSION For each of the reasons stated above, Google respectfully requests that the Court grant its 18 unopposed motion for administrative relief. 19 Dated: June 23, 2010 20 21 COOLEY LLP MICHAEL G. RHODES (116127) PETER J. WILLSEY (admitted pro hac vice) LEO P. NORTON (216282) /s/ Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE INC. Email: lnorton@cooley.com 22 23 24 IT IS SO ORDERED: 25 26 27 677175 /SD This is the FINAL continuance. Dated: June 29, 2010 ___________________________________________ United States District Judge 28 COOLEY LLP ATTORNEYS AT LAW SAN DIEGO 5. UNOPPOSED MOTION TO MODIFY CASE MANAGEMENT SCHEDULE CASE NO. 08-CV-03369 JW HRL
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