United States District Court, N.D. California, San Jose Division
RICK WOODS, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
GOOGLE, INC., Defendant.
INTERIM ORDER ON DDJR #1 AND DDJR #2; ORDER DENYING MOTION FOR LEAVE TO SUPPLEMENT [RE: DOCKETS NOS. 129, 130, 131, 135, 138]
HOWARD R. LLOYD, Magistrate Judge.
Plaintiff Rick Woods, representing a putative class, sues defendant Google, Inc. ("Google") for breach of contract and violations of California's Unfair Competition Law ("UCL") related to Google's alleged failure to apply as represented the "Location Targeting" and "Smart Pricing" features of its online advertising program "AdWords." Through the program, Google displays the ads of Woods and others, and they in turn pay Google each time their ad is "clicked." The Location Targeting feature purportedly allows advertisers to limit the geographic area of the persons to whom their ads are displayed. The Smart Pricing Feature purportedly reduces the cost per click when data indicates that the click is less likely to create business for the advertiser. Woods' First Requests for Production ("RFP") primarily sought documents and information related to Location Targeting. His Second RFP focused on Smart Pricing, including documents from a prior litigation. In July 2013, Woods filed Discovery Dispute Joint Report ("DDJR") #1 challenging the adequacy of Google's responses to his RFPs, and DDJR #2 concerning the "Relevant Period" of Woods' Second RFP. Neither DDJR contained any input from Google. Accordingly, Google objected to the DDJRs on procedural grounds, namely noncompliance with the undersigned's Standing Order re Civil Discovery Disputes ("Standing Order"). However, Google has not substantively responded to or provided its position on either dispute. Woods later filed a Motion for Leave to Supplement DDJR#1, which Google again opposed on procedural grounds.
Woods' First and Second RFPs requested, among other things, "click data" related to Location Targeting and Smart Pricing. In its responses to the RFPs, Google objected to the click data requests on numerous grounds but generally agreed to meet and confer regarding the scope of the requests. To effectively confer, Woods requested descriptions of the fields of data Google maintains related to its click data requests. Eventually, Google explained that it stores the relevant click data in "log files" and "database tables, " and it provided lists of what it claimed to be all relevant fields of data contained therein. However, Woods asserts that other documents produced in discovery indicate that Google's descriptions are incomplete.
Woods' Second RFP also requested documents from an earlier litigation, In re Google AdWords, including all documents Google produced in the litigation related to Smart Pricing, all documents relied on by the expert who opined on Smart Pricing, and un-redacted copies of all court filings. Again, Google objected but agreed to meet and confer to narrow the scope of the requests. During conferences, however, Google asserted that the requested documents were irrelevant because the claims and theories of recovery were different. Nevertheless, Woods contends that there are certainly responsive documents in common.
At some point the parties agreed to limit the temporal scope of discovery for several of Woods' claims because Google removed from its website the alleged misrepresentations on which those claims were based. However, Woods asserts that his claims based on Smart Pricing allege ongoing wrongful activity that continues to the present. Accordingly, Woods' Second RFP defined the "Relevant Period" from April 1, 2004 to the present. In its response, Google objected to Woods' description of the Relevant Period as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, and it stated it would limit its responses to the time period of April 1, 2004 to April 9, 2013. However, Woods' asserts that in subsequent conferences, Google indicated that it would further limit the time period of its responses, its latest proposal being a cutoff of July 1, 2012.
In July 2013, lead counsel for both parties met in person for three and a half hours to discuss numerous discovery issues. According to Woods, he informed Google the following day that if he did not receive responses resolving the issues within five days, the parties would be at an impasse necessitating judicial intervention. Having received no response by the sixth day, Woods declared an impasse and requested that Google prepare its statement for inclusion in the DDJRs. Woods rejected Google's demand to see his portion of the DDJR before Google would prepare its own, but he did repeatedly advise Google of the precise issues to be addressed. Nevertheless, Google never provided its statements for inclusion in the DDJRs.
On the other side, Google explains that in the days following the in person meet and confer between lead counsel, the parties held several follow up discussions and resolved most of their discovery disputes. Despite this progress, Woods unilaterally declared impasse on the few remaining unresolved issues one week after the meet and confer. He also demanded that Google send him its portions of the DDJRs by the morning of one week later to be combined for filing in the afternoon. Google objected that Woods' declaration of impasse was premature and its proposed filing procedures unfair. Google requested just 24 hours' notice of Woods' portion of the DDJR in order to meaningfully respond. However, Woods refused and, having never provided with Google with anything more than broad categories of requested relief, unilaterally filed the DDJRs.
Woods' DDJR #1 requests an order compelling Google to produce, with a designation no greater than "Confidential - Attorney's Eyes Only": (1) descriptions of the log files Google maintains with respect to clicks and impressions; (2) identification and descriptions of the fields of data maintained within those log files; (3) data from such log files relating to six specific clicks (and related impressions) of Woods' ad referenced in ¶ 120 of the complaint, which alleged that the six clicks were by users outside of Woods' geographic target; (4) complete identification and description of the database tables (and fields contained therein) Google maintains with respect to clicks and impressions. Additionally, Woods' seeks an order compelling Google to produce all documents responsive to its requests for production related to the In re Google AdWords Litigation.
In DDJR #2, Woods requests that the Court overrule Google's objections to the Relevant Period for his Smart Pricing requests and compel Google to produce responsive documents for the Relevant Period, which continues through the date of trial.
Google requests that the Court strike the DDJRs for noncompliance with the undersigned's Standing Order and order lead counsel to continue the meet and confer process. Moreover, any party seeking to file a DDJR in this matter should be required to provide its portion of the report at least 72 hours prior to filing.
A. Preparation and Filing of the DDJRs
Pursuant to the Standing Order, a DDJR has only a few basic components. First, a cover page with general information, relevant dates, a one sentence issue statement, and an attestation of compliance with the Standing Order. Next, it "should describe the dispute and the facts essential to understanding it. Then, in a format that allows ready comparison, it should give each party's position (with brief citation to important authority), and - finally - each party's final and most reasonable' proposal for how the court should decide." It further provides that "[u]njustified delay or refusal ...