In re Google Assistant Privacy Litigation

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ASIF KUMANDAN, et al., Case No. 19-cv-04286-BLF

8 Plaintiffs, ORDER DENYING NON-PARTY 9 v. APPEN BUTLER HILL INC.’S MOTION FOR RELIEF FROM 10 GOOGLE LLC, et al., NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE VAN 11 Defendants. KEULEN WITHOUT PREJUDICE TO FILING A MOTION FOR LEAVE TO 12 FILE A MOTION FOR RECONSIDERATION 13 [Re: ECF No. 236] 14

15 Before the Court is non-party Appen Butler Hill Inc.’s (“Appen”) motion for relief from 16 Judge van Keulen’s order granting in part and denying in part Appen’s motion to quash Plaintiffs’ 17 subpoena of Appen in this privacy class action against Defendants Google LLC and Alphabet, Inc. 18 (collectively, “Google”). See Motion, ECF No. 236. 19 Based on the below reasoning, the Court DENIES Appen’s motion WITHOUT PREJUDICE 20 to Appen filing a motion for leave to file a motion for reconsideration before Judge van Keulen. 21 I. BACKGROUND 22 On January 6, 2022, Plaintiffs served Appen with subpoenas that included document 23 requests and topics for a deposition. See Guyon Decl., ECF No. 236-1 ¶ 2. The document requests 24 and deposition topics sought information regarding Appen’s work transcribing audio recordings for 25 Google. Appen moved to quash the subpoena seeking deposition testimony, arguing that (1) it was 26 unlimited in time; (2) any relevant information it sought could be obtained from Google directly; 27 and (3) it sought privileged information. See Joint Discovery Statement, ECF No. 221 at 2–3. 1 Judge van Keulen granted Appen’s motion in part and denied it in part, finding that “[t]here 2 are a number of subpoenaed topics that are clearly within the exclusive knowledge, custody and 3 control of Appen and for which neither production of documents nor preparation of a witness would 4 be unduly burdensome.” See Discovery Order, ECF No. 235 at 1–2. Judge van Keulen further 5 modified the deposition topics and requests for production, given that “some of [the] topics are not 6 relevant to the limited third-party role of Appen in this action.” See id. at 2. Judge van Keulen 7 ordered that document production pursuant to the modified subpoena must be completed by August 8 19, 2022, and the deposition must take place by August 31, 2022. See id. 9 Appen now challenges portions of Judge van Keulen’s order, arguing that it is erroneous and 10 contrary to law because it seeks information available from Google after the close of fact discovery 11 and in excess of the ten depositions allowed under Federal Rule of Civil Procedure 30(a)(2)(A)(i). 12 See Motion, ECF No. 236. The Court declined to request an opposition from Plaintiffs under 13 Civil Local Rule 72-2(d). 14 II. LEGAL STANDARD 15 A magistrate judge’s non-dispositive pretrial order may be modified or set aside if it is 16 “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “[T]he magistrate’s factual 17 determinations are reviewed for clear error, and the magistrate’s legal conclusions are reviewed to 18 determine whether they are contrary to law.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 19 (N.D. Cal. 2010). 20 III. DISCUSSION 21 Appen argues that Judge van Keulen’s order “of hardly one page and with no reasoning” is 22 “erroneous and contrary to law.” See Motion, ECF No. 236 at 1. First, Appen provides a declaration 23 from an employee indicating that Appen has no documents or information indicating that Appen 24 has accessed audio obtained with the Google Assistant Software at issue in this case. See Larusson 25 Decl., ECF No. 236-2 ¶ 4. Second, Appen argues that Judge van Keulen’s order is erroneous 26 because it compels Appen to provide information that is available from Google. See id. at 3–5. 27 Appen provides evidence that it contracted with Google to transcribe audio recordings through a 1 within Appen’s knowledge or custody could have been sought from Google. See id.; 2 ECF No. 237-6. Third, Appen argues that Judge van Keulen’s order requires Appen to testify to 3 irrelevant topics, i.e., the locations and number of Appen personnel that “work for or on behalf of 4 Google.” See Motion, ECF No. 236 at 5. Appen argues that these topics are part of Plaintiffs’ 5 fishing expedition to seek Appen employee deponents. See id. Fourth, Appen argues that Judge van 6 Keulen’s order requires a deposition in excess of the ten allowed under Federal Rule of Civil 7 Procedure 30(a)(2). See id. 8 The Court disagrees with Appen. As a threshold matter, the Court notes that Appen 9 mischaracterizes Judge van Keulen’s order as consisting of “hardly one page” and containing “no 10 reasoning.” See id. at 1. Appen completely ignores the six pages Judge van Keulen provides 11 containing detailed alterations to Plaintiffs’ document requests and deposition topics served on 12 Appen. See ECF Nos. 235-1, 235-2. Further, Appen ignores the reasoning in Judge van Keulen’s 13 order. See, e.g., Order, ECF No. 235 at 1–2 (“There are a number of subpoenaed topics that are 14 clearly within the exclusive knowledge, custody and control of Appen and for which neither 15 production of documents nor preparation of a witness would be unduly burdensome.”); 16 ECF Nos. 235-1, 235-2. Accordingly, Judge van Keulen’s order is far more than “hardly one page,” 17 and it is untrue that it contains “no reasoning.” 18 Otherwise, Appen’s motion appears to be based on mere disagreements with 19 Judge van Keulen’s findings that are insufficient to meet Appen’s burden on its motion. Appen’s 20 quibbles regarding the relevance of the information sought by Plaintiffs’ subpoena as modified by 21 Judge van Keulen fail to show that Judge van Keulen’s order was contrary to law. Relevance 22 findings are legal conclusions that the Court reviews to determine whether they are contrary to law. 23 See AMEC Environment & Infrastructure, Inc. v. Integral Consulting, Inc., No. 12–cv–01735–SC, 24 2014 WL 6601960, at *2 (N.D. Cal. Nov. 19, 2014); Perry, 268 F.R.D. at 348. Appen contends that 25 the locations and number of Appen personnel who perform work for or on behalf of Google is 26 relevant only as the basis for an improper “fishing expedition” to find Appen employee deponents. 27 See Motion, ECF No. 236 at 5. But this information also speaks to the scope of the relationship 1 ECF No. 235-1 at 1. Accordingly, the Court finds that Appen’s relevance challenges fail to show 2 that any of Judge van Keulen’s findings were contrary to law. 3 Appen’s argument that the information at issue in Judge van Keulen’s order is equally 4 accessible to Google is also unavailing. Appen’s argument, which pertains to the burden of 5 Plaintiffs’ document requests and deposition topics, is based on a challenge to Judge van Keulen’s 6 factual finding that “[t]here are a number of subpoenaed topics that are clearly within the exclusive 7 knowledge, custody and control of Appen[.]” See Order, ECF No. 235 at 1–2. The Court reviews 8 Judge van Keulen’s factual determinations for clear error. See Perry, 268 F.R.D. at 348. Appen’s 9 argument appears to be based merely in a disagreement as to whether certain information is available 10 to Google. Appen argued in its motion to quash that certain information sought from Appen was 11 equally available to Google. See Joint Discovery Statement, ECF No. 221 at 2. Nonetheless, Judge 12 van Keulen disagreed, finding that certain deposition topics are “clearly within the exclusive 13 knowledge, custody and control of Appen.” See Order, ECF No. 235 at 1–2. Appen fails to show 14 that Judge van Keulen’s disagreement was clear error. For example, Appen fails to show that 15 information regarding Appen’s “policies and practices”—something clearly in Appen’s exclusive 16 knowledge and custody, regardless of any arrangement with Google—is equally accessible to 17 Google. See ECF Nos. 235-1, 235-2. 18 In support of its challenges to Judge van Keulen’s relevance and burden findings, Appen 19 provides new evidence that it did not present to Judge van Keulen regarding the relationship between 20 Appen and Google. See Motion, ECF No. 236 at 3 (“Had Appen been allowed to submit 21 declarations in support of its motion to quash it would have affirmed to the Magistrate Judge that it 22 lacked any documents or other information evidencing that it ever transcribed audio recorded with 23 the Google Assistant Software.”); Larusson Decl., ECF No. 236-2; ECF No. 237-6. The Court does 24 not see how it can consider such evidence on a motion for relief from a nondispositive pretrial order 25 of Judge van Keulen. Appen appears to be covertly moving for reconsideration of Judge van 26 Keulen’s order based on newly offered evidence. See Synopsys v. Atoptech, 27 No. 13–cv–02965–MMC, ECF No. 861 (N.D. Cal. Oct. 5, 2016) (“Plaintiff’s motion for relief . . . 1 reconsideration based on newly-offered evidence.”). If Appen wishes for Judge van Keulen to 2 || reconsider her prior order based on new evidence, this Order will be without prejudice to Appen 3 || filing a motion for leave to file a motion for reconsideration before Judge van Keulen. But the Court 4 || will not take Appen’s improper invitation to grant relief from Judge van Keulen’s order based on 5 evidence that was not before her. Moreover, if Appen does not have responsive documents, it is 6 || free to say so in a properly verified response to the subpoena or at a deposition. 7 Appen also argues that any deposition in response to Plaintiffs’ subpoena will be in excess 8 of the ten depositions Plaintiffs are allowed under Federal Rule of Civil Procedure 30(a)(2)—a fact 9 || Plaintiffs “withheld” and “conceal[ed]” from Appen and Judge van Keulen. See Motion, 10 || ECF No. 236 at5. Again, this appears to be new evidence appropriate to raise in a motion for 11 reconsideration before Judge van Keulen—not a motion for relief from Judge van Keulen’s 12 || nondispositive pretrial order. And it is not clear why a third party would be harmed by a presumptive 5 13 limit intended to protect the litigants. 14 || IV. ORDER 15 For the foregoing reasons, IT IS HEREBY ORDERED that Appen’s motion is DENIED 16 || WITHOUT PREJUDICE to Appen filing a motion for leave to file a motion for reconsideration, to 3 17 be presented to Magistrate Judge van Keulen. 18 19 || Dated: August 25, 2022 kom Lh han ty) 20 (MAMAN © BETH LABSON FREEMAN 21 United States District Judge 22 23 24 25 26 27 28