In Calhoun v. Google LLC, No. 20-cv-05146-YGR (SVK) (N.D. Cal. June 6, 2022), California Magistrate Judge Susan Van Keulen ordered Google to pay Plaintiffs’ fees and costs incurred in bringing the motion to compel in the amount of $10,836.00 for interference with a third-party production in the case.

Case Discussion

In this data privacy class action brought by and on behalf of Google Chrome users who chose not to “Sync” their browsers with their Google accounts while browsing the web, Google submitted response to the Court’s Order to Compel and Order to Show Cause as to why Google should not be sanctioned for interfering with the production of third-party Ernst & Young (“E&Y”) documents ordered by the Court. Judge Van Keulen relayed the key facts associated with interference with a third-party production in chronological order:

• Plaintiffs subpoenaed Defendant’s auditor, third-party E&Y, for documents relating to the valuation of certain user information.
• Google moved for a protective order, asking this Court to prohibit Plaintiffs from seeking documents from E&Y.
• This Court granted in part and denied in part Google’s motion, narrowly tailoring the allowed requests and ordering “E&Y to produce responsive documents in accordance with the Order above by November 30, 2021.”
• In response to the Order to Produce, E&Y identified 6,322 responsive documents.
• Prior to production of the E&Y documents, Google reviewed and deselected 6,232 documents on the basis of relevance. After Google’s review, 90 documents were produced.
• Plaintiffs moved to compel compliance with the Order to Produce, seeking production of the entire set of 6,322 documents identified by E&Y.
• Google opposed the motion to compel as did E&Y. In its statement, E&Y stated that it in selecting the 6,322 documents, it “made its own good-faith determination, as a non-party to this case, as to what documents appeared responsive to these requests.”
• Pursuant to Plaintiff’s motion to compel, the Court ordered production of the entire set of 6,322 E&Y documents and issued an order to show cause as to why Google should not be sanctioned for interference with a third-party production.
• Pursuant to the Order to Compel and OSC, Plaintiffs filed a declaration regarding their fees and costs associated with bringing the motion to compel only, excluding the motion for protective order. Plaintiffs’ fees and costs associated with the motion totaled $10,836.00.
• Google filed a response to the Order to Compel and OSC, restating its arguments in its motion for protective order and in opposition to the motion to compel.

Judge’s Ruling

Judge Van Keulen began her analysis by stating: “Google argues that its review and culling of the E&Y production were ‘substantially justified’ because E&Y’s search efforts captured mostly irrelevant documents, and only these documents were removed from the E&Y production…In sum, Google suggests that the ‘no harm, no foul’ rule should apply to its conduct in this case. The Court disagrees.”

Continuing she said: “In the first round of this dispute regarding the scope of production by E&Y, Google objected to the subpoena, bringing a motion for protective order which this Court evaluated and ruled upon…In granting in part and denying in part Google’s motion, the Court articulated the scope of responsive documents for E&Y to identify and produce…The Order to Produce was unambiguous: ‘E&Y [is ordered] to produce responsive documents in accordance with the Order above by November 30, 2021.’…E&Y, a sophisticated litigant in its own right, then searched for and, in E&Y’s own words, ‘made its own good-faith determination, as a non-party to this case, as to what documents appeared responsive to these requests.’…Having not received all of the relief it had sought in its motion for protective order, Google took it upon itself to review and significantly reduce the E&Y production…Google then expected Plaintiffs to take Google’s word that the culled documents, collected by E&Y pursuant to this Court’s Order to Produce, were not relevant…Plaintiffs responded with a motion to compel compliance with this Court’s Order to Produce, which was the second round of this dispute…In opposition to the motion to compel, Google argued, as continues to do here, that it was justified in working with E&Y to remove irrelevant documents…The Court was not persuaded and compelled production and issued an order to show cause as to why Google should not be sanctioned.”

In ordering Google to pay Plaintiffs’ fees and costs incurred in bringing the motion to compel in the amount of $10,836.00 for interference with a third-party production in the case, Judge Van Keulen also stated: “Then, as now, Google appears blind to the gravity of the error of its interference with a Court order…Google’s proffered ‘justification,’ primarily that the documents reflect highly confidential financial information not relevant to the claims in suit, was heard and rejected by this Court twice…None of the authorities cited by Google speak to the situation at hand where, having challenged the scope of a third-party subpoena and received a ruling from the court, a party then substantially culls third-party documents prior to production in contravention of a court order. Google’s actions were, and remain, in breach of this Court’s Order to Produce…In short, Google’s actions may have been justified in its own eyes but not in the eyes of the Court.”

So, what do you think? Have you ever seen a case where a party was determined to have committed interference with a third-party production?  Please share any comments you might have or if you’d like to know more about a particular topic.

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