1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JUDY MAY, et al., Case No. 24-cv-01314-BLF
8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS' MOTION FOR RELIEF FROM 10 GOOGLE LLC, et al., NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE 11 Defendants. [Re: ECF No. 148] 12 13 Before the Court is Plaintiffs’ Motion for Relief from Nondispositive Pretrial Order of 14 Magistrate Judge. See ECF No. 148-1 (“Mot.”); see also ECF No. 154 (“Reply”). Plaintiffs 15 request that the Court set aside Magistrate Judge Susan van Keulen’s April 30, 2026, Order Re 16 Discovery Dispute at Dkt. 146. See ECF No. 147 (“Dispute Order”). Defendants Google LLC, 17 Google Arizona LLC, and Google Payment Corp. (collectively, “Google”) oppose the motion. 18 ECF No. 152 (“Opp.”). For the reasons set forth below, the Court GRANTS IN PART AND 19 DENIES IN PART Plaintiffs’ motion. 20 I. LEGAL STANDARD 21 A district court may “modify or set aside any part” of a magistrate judge’s ruling on a 22 nondispositive pretrial motion “that is clearly erroneous or is contrary to law.” Fed. R. Civ. 23 P. 72(a). “The magistrate’s factual determinations are reviewed for clear error, and the 24 magistrate’s legal conclusions are reviewed to determine whether they are contrary to law.” Perry 25 v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). “There is clear error only when the 26 court is ‘left with the definite and firm conviction that a mistake has been committed.’” Zepeda v. 27 Paypal, Inc., No. C 10–2500, 2014 WL 4354386, at *3 (N.D. Cal. Sept. 2, 2014) (quoting Easley 1 misapplies relevant statutes, case law, or rules of procedure.” Rojas v. Bosch Solar Energy Corp., 2 No. 18-cv-05841, 2020 WL 6557547, at *3 (N.D. Cal. July 20, 2020) (citation omitted). 3 II. DISCUSSION 4 In this putative class action, Plaintiffs allege liability against Google after they fell prey to 5 scammers fleecing them out of the value of their Google Play gift cards. In the March 20, 2026, 6 Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss, the Court denied 7 Google’s motion to dismiss the conversion claim, granted leave to amend the tolling allegations, 8 and dismissed the other claims without leave to amend. ECF No. 141 (“MTD Order”). 9 Thereafter, the Parties disagreed on the scope of Google’s 30(b)(6) designee’s testimony and 10 Judge van Keulen ruled on the Parties’ disputes. In the instant motion, Plaintiffs ask the Court to 11 set aside the Dispute Order and adopt Plaintiffs’ previously proposed compromises. The Court 12 addresses each issue in turn. 13 A. Topic 1 14 As relevant here, Plaintiffs requested that Google’s Rule 30(b)(6) designee be prepared to 15 testify as to “[t]he Google business units and departments with responsibility for . . . (b) the 16 Computer System(s) which identify, detect, monitor, track, analyze, prevent, and/or report Gift 17 Card Scams.” Dispute Order, Attachment A at 1–2. The Dispute Order limited Topic 1 to 18 systems which track gift-card scams. Id. Plaintiffs request that the Court set aside the ruling, 19 including because the Dispute Order did not address the analysis of California Civil Code § 1668 20 set forth in the Motion to Dismiss Order. Mot. at 3–4. Google contends that its use of automatic 21 systems is not relevant to Google’s surviving claim. Opp. at 2–4. 22 As the Court held that it will be incumbent upon Plaintiffs to prove intentional wrongdoing 23 or strict liability for which the public interest is implicated to establish willful injury under § 1668, 24 the Court finds that it was clear error for the Dispute Order to fail to consider the relevance of 25 § 1668 to Plaintiffs’ conversion claim. See MTD Order at 18–21. The Court further finds that 26 testimony regarding the nature of Google’s systems may support Plaintiffs’ claim that Google 27 engaged in intentional wrongdoing. Google has not established that it would be unduly 1 Google’s business units and departments with responsibility for the Computer Systems which 2 identify, detect, monitor, track, analyze, prevent, and/or report Gift Card Scams is relevant to 3 Plaintiffs’ conversion claim and proportional to the needs to the needs of the case considering the 4 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 5 access to relevant information, the parties’ resources, the importance of the discovery in resolving 6 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 7 benefit. See Fed. R. Civ. P. 26(b)(1). Accordingly, the Court GRANTS Plaintiffs’ request to set 8 aside the Dispute Order as to Topic 1 and ADOPTS Plaintiffs’ proposed compromise. 9 B. Topic 2 10 Turning to Topic 2, Plaintiffs requested that Google’s 30(b)(6) designee be prepared to 11 testify as to “[t]he Computer System(s) used to identify, monitor, detect, and track Gift Cards 12 involved in Gift Card Scams, including any Computer System(s) used to prevent Gift Card Scams, 13 and the Structured Data (i.e., the following data or data elements) collected by Google regarding 14 Gift Card Scams,” including redeemer-specific data. Dispute Order, Attachment A at 4–6. The 15 Dispute Order limited the topic to “[t]he Computer System(s) used to track Gift Cards involved in 16 Gift Card Scams reported to Google by consumers, and the Structured Data (i.e., the following 17 data or data elements) collected by Google regarding Gift Card Scams.” Id. at 4 (emphasis 18 added). The Dispute Order also excluded redeemer-specific data. Id. 19 For the same reasons described above, the Court finds that it was clear error for the 20 Dispute Order to fail to consider the relevance of § 1668 to Plaintiffs’ surviving claim. Testimony 21 relating to the nature of Google’s systems may lead to evidence of wrongdoing attributable to 22 Google. Moreover, Google has not persuaded the Court that it would be unduly burdensome to 23 prepare its designee on the full scope of Plaintiffs’ proposed compromise. The Court thus finds 24 that Plaintiffs’ proposed compromise as to Topic 2 is both relevant and proportional to the needs 25 of the case. See Fed. R. Civ. P. 26(b)(1). Accordingly, the Court GRANTS Plaintiffs’ request to 26 set aside the Dispute Order as to Topic 2 and ADOPTS Plaintiffs’ proposed compromise. 27 C. Topic 13 1 to testify as to Google’s efforts to detect and prevent Google Play Gift Card Scams, including 2 methods that apply to Google Accounts or Google Developers. Dispute Order, Attachment A 3 at 6–7. The Dispute Order adopted Google’s proposed compromise, namely testimony on whether 4 the particular scams allegedly reported by Plaintiffs May and Kennedy were detected by Google’s 5 automated systems. Id. This ruling was expressly without prejudice to a renewed, broader 6 proposal after class certification. Id. 7 Plaintiffs contend that the Dispute Order improperly deprived Plaintiffs of testimony on 8 either the two named Plaintiffs’ scams or the generally applicable policies and procedures relevant 9 to class certification. Mot. at 5. The Court disagrees. In light of the narrowed scope of the case, 10 the Court finds that the compromise adopted by the Dispute Order properly balanced the relevance 11 and proportionality considerations set forth in Rule 26(b)(1) of the Federal Rules of Civil 12 Procedure. As the Court finds itself lacking the “definite and firm conviction that a mistake has 13 been committed,” Perry, 268 F.R.D. at 348, the Court DENIES Plaintiffs’ request to set aside the 14 Dispute Order as to Topic 13. 15 D. Relevant Time Period 16 Lastly, the Parties dispute the relevant time period for the topics.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JUDY MAY, et al., Case No. 24-cv-01314-BLF
8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS' MOTION FOR RELIEF FROM 10 GOOGLE LLC, et al., NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE 11 Defendants. [Re: ECF No. 148] 12 13 Before the Court is Plaintiffs’ Motion for Relief from Nondispositive Pretrial Order of 14 Magistrate Judge. See ECF No. 148-1 (“Mot.”); see also ECF No. 154 (“Reply”). Plaintiffs 15 request that the Court set aside Magistrate Judge Susan van Keulen’s April 30, 2026, Order Re 16 Discovery Dispute at Dkt. 146. See ECF No. 147 (“Dispute Order”). Defendants Google LLC, 17 Google Arizona LLC, and Google Payment Corp. (collectively, “Google”) oppose the motion. 18 ECF No. 152 (“Opp.”). For the reasons set forth below, the Court GRANTS IN PART AND 19 DENIES IN PART Plaintiffs’ motion. 20 I. LEGAL STANDARD 21 A district court may “modify or set aside any part” of a magistrate judge’s ruling on a 22 nondispositive pretrial motion “that is clearly erroneous or is contrary to law.” Fed. R. Civ. 23 P. 72(a). “The magistrate’s factual determinations are reviewed for clear error, and the 24 magistrate’s legal conclusions are reviewed to determine whether they are contrary to law.” Perry 25 v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). “There is clear error only when the 26 court is ‘left with the definite and firm conviction that a mistake has been committed.’” Zepeda v. 27 Paypal, Inc., No. C 10–2500, 2014 WL 4354386, at *3 (N.D. Cal. Sept. 2, 2014) (quoting Easley 1 misapplies relevant statutes, case law, or rules of procedure.” Rojas v. Bosch Solar Energy Corp., 2 No. 18-cv-05841, 2020 WL 6557547, at *3 (N.D. Cal. July 20, 2020) (citation omitted). 3 II. DISCUSSION 4 In this putative class action, Plaintiffs allege liability against Google after they fell prey to 5 scammers fleecing them out of the value of their Google Play gift cards. In the March 20, 2026, 6 Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss, the Court denied 7 Google’s motion to dismiss the conversion claim, granted leave to amend the tolling allegations, 8 and dismissed the other claims without leave to amend. ECF No. 141 (“MTD Order”). 9 Thereafter, the Parties disagreed on the scope of Google’s 30(b)(6) designee’s testimony and 10 Judge van Keulen ruled on the Parties’ disputes. In the instant motion, Plaintiffs ask the Court to 11 set aside the Dispute Order and adopt Plaintiffs’ previously proposed compromises. The Court 12 addresses each issue in turn. 13 A. Topic 1 14 As relevant here, Plaintiffs requested that Google’s Rule 30(b)(6) designee be prepared to 15 testify as to “[t]he Google business units and departments with responsibility for . . . (b) the 16 Computer System(s) which identify, detect, monitor, track, analyze, prevent, and/or report Gift 17 Card Scams.” Dispute Order, Attachment A at 1–2. The Dispute Order limited Topic 1 to 18 systems which track gift-card scams. Id. Plaintiffs request that the Court set aside the ruling, 19 including because the Dispute Order did not address the analysis of California Civil Code § 1668 20 set forth in the Motion to Dismiss Order. Mot. at 3–4. Google contends that its use of automatic 21 systems is not relevant to Google’s surviving claim. Opp. at 2–4. 22 As the Court held that it will be incumbent upon Plaintiffs to prove intentional wrongdoing 23 or strict liability for which the public interest is implicated to establish willful injury under § 1668, 24 the Court finds that it was clear error for the Dispute Order to fail to consider the relevance of 25 § 1668 to Plaintiffs’ conversion claim. See MTD Order at 18–21. The Court further finds that 26 testimony regarding the nature of Google’s systems may support Plaintiffs’ claim that Google 27 engaged in intentional wrongdoing. Google has not established that it would be unduly 1 Google’s business units and departments with responsibility for the Computer Systems which 2 identify, detect, monitor, track, analyze, prevent, and/or report Gift Card Scams is relevant to 3 Plaintiffs’ conversion claim and proportional to the needs to the needs of the case considering the 4 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 5 access to relevant information, the parties’ resources, the importance of the discovery in resolving 6 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 7 benefit. See Fed. R. Civ. P. 26(b)(1). Accordingly, the Court GRANTS Plaintiffs’ request to set 8 aside the Dispute Order as to Topic 1 and ADOPTS Plaintiffs’ proposed compromise. 9 B. Topic 2 10 Turning to Topic 2, Plaintiffs requested that Google’s 30(b)(6) designee be prepared to 11 testify as to “[t]he Computer System(s) used to identify, monitor, detect, and track Gift Cards 12 involved in Gift Card Scams, including any Computer System(s) used to prevent Gift Card Scams, 13 and the Structured Data (i.e., the following data or data elements) collected by Google regarding 14 Gift Card Scams,” including redeemer-specific data. Dispute Order, Attachment A at 4–6. The 15 Dispute Order limited the topic to “[t]he Computer System(s) used to track Gift Cards involved in 16 Gift Card Scams reported to Google by consumers, and the Structured Data (i.e., the following 17 data or data elements) collected by Google regarding Gift Card Scams.” Id. at 4 (emphasis 18 added). The Dispute Order also excluded redeemer-specific data. Id. 19 For the same reasons described above, the Court finds that it was clear error for the 20 Dispute Order to fail to consider the relevance of § 1668 to Plaintiffs’ surviving claim. Testimony 21 relating to the nature of Google’s systems may lead to evidence of wrongdoing attributable to 22 Google. Moreover, Google has not persuaded the Court that it would be unduly burdensome to 23 prepare its designee on the full scope of Plaintiffs’ proposed compromise. The Court thus finds 24 that Plaintiffs’ proposed compromise as to Topic 2 is both relevant and proportional to the needs 25 of the case. See Fed. R. Civ. P. 26(b)(1). Accordingly, the Court GRANTS Plaintiffs’ request to 26 set aside the Dispute Order as to Topic 2 and ADOPTS Plaintiffs’ proposed compromise. 27 C. Topic 13 1 to testify as to Google’s efforts to detect and prevent Google Play Gift Card Scams, including 2 methods that apply to Google Accounts or Google Developers. Dispute Order, Attachment A 3 at 6–7. The Dispute Order adopted Google’s proposed compromise, namely testimony on whether 4 the particular scams allegedly reported by Plaintiffs May and Kennedy were detected by Google’s 5 automated systems. Id. This ruling was expressly without prejudice to a renewed, broader 6 proposal after class certification. Id. 7 Plaintiffs contend that the Dispute Order improperly deprived Plaintiffs of testimony on 8 either the two named Plaintiffs’ scams or the generally applicable policies and procedures relevant 9 to class certification. Mot. at 5. The Court disagrees. In light of the narrowed scope of the case, 10 the Court finds that the compromise adopted by the Dispute Order properly balanced the relevance 11 and proportionality considerations set forth in Rule 26(b)(1) of the Federal Rules of Civil 12 Procedure. As the Court finds itself lacking the “definite and firm conviction that a mistake has 13 been committed,” Perry, 268 F.R.D. at 348, the Court DENIES Plaintiffs’ request to set aside the 14 Dispute Order as to Topic 13. 15 D. Relevant Time Period 16 Lastly, the Parties dispute the relevant time period for the topics. Plaintiffs proposed a 17 time period beginning March 5, 2020, and Defendants proposed March 5, 2021, as the starting 18 date. Dispute Order, Attachment A at 1. Judge van Keulen ruled that the relevant time period for 19 all topics except for Topic 14 shall begin on January 1, 2021. Plaintiffs argue that the selection of 20 this starting date was clearly erroneous. Mot. at 5. The Court disagrees. The Dispute Order 21 expressly took into account Rule 26’s relevance and proportionality requirements, and the 22 selection of January 1, 2021, was a proper exercise of discretion. As the Court is unable to reach a 23 definite and firm conviction that a mistake has been made, Perry, 268 F.R.D. at 348, the Court 24 DENIES Plaintiffs’ request to set aside the Dispute Order as to the time period. 25 III. ORDER 26 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART 27 Plaintiffs’ motion for relief from nondispositive pretrial order of Magistrate Judge as follows: ] ADOPTS Plaintiffs’ proposed compromise. 2 (2) The Court GRANTS Plaintiffs’ request to set aside the Dispute Order as to Topic 2 and 3 ADOPTS Plaintiffs’ proposed compromise. 4 (3) The Court DENIES Plaintiffs’ request to set aside the Dispute Order as to Topic 13. 5 (4) The Court DENIES Plaintiffs’ request to set aside the Dispute Order as to the relevant 6 time period. 7 Dated: June 16, 2026
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