In re Google Assistant Privacy Litigation

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION ASIF KUMANDAN, et al., Case No. 19-cv-04286-BLF 8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ 9 v. MOTION TO EXTEND FILING DEADLINE FOR CLASS 10 GOOGLE LLC, et al., CERTIFICATION MOTION 11 Defendants. [Re: ECF Nos. 171, 179] 13 This is a privacy class action pertaining to Defendants Alphabet Inc. and Google LLC’s (collectively, “Google”) alleged collection and use of sound recording data through their Google Assistant software platform. Plaintiffs’ allegations include that Google collects and uses data from “false accepts,” where Google Assistant-enabled devices automatically begin recording conversations without detecting a voice command. See Fourth Amended Complaint, ECF No. 141 ¶ 252. Based on a recent production of documents related to “false accepts,” Plaintiffs seek to extend the class certification motion filing deadline by two months—from May 18, 2022 to July 18, 2022. See Administrative Motion, ECF No. 171; ECF No. 179. Plaintiffs argue that Google’s March 29, 2022 and April 5, 2022 productions of thousands of documents with millions of pages, the majority of which are reports reflecting Google’s testing of “false accepts,” justifies extending the class certification deadline. See Motion, ECF No. 171 at 2–3.

24 Google opposes, arguing that (1) a Rule 16 motion—not an administrative motion—is the proper vehicle for a request to modify the scheduling order; (2) it is Plaintiffs’ delays and conduct during search term negotiations that led to Google’s production of documents; and (3) Plaintiffs have not shown that the reports in question are relevant to class certification. See Opposition, it would cause prejudice to Google because (1) the class certification deadline would be after the close of fact discovery, depriving Google of the ability to depose the named Plaintiffs on their representations in support of class certification and (2) class certification and dispositive motions would be briefed simultaneously. See ECF No. 180.

5 Under Federal Rule of Civil Procedure 16, a party seeking to amend a scheduling order must show “good cause” for such relief. Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”). Rule 16(b)’s “good cause” standard primarily considers the diligence of the party seeking the amendment. See In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (citing Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

11 Construing Plaintiffs’ motion under Rule 16 of the Federal Rules of Civil Procedure, the Court finds that Plaintiffs have shown good cause for extending the class certification deadline. See Fed. R. Civ. P. 16(b)(4). Plaintiffs have shown diligence—they filed the present motion shortly after discovering that Google’s March 29 and April 5 productions were potentially material to their motion for class certification and required additional time to process. See In re Western States, 715 F.3d at 737. While Google argues that Plaintiffs are responsible for production delays, the facts suggest Google played a significant role. See, e.g., Motion, ECF No. 171 at 1 (“Google refused to make a counter-proposal to Plaintiffs’ search terms[.]”). Further, the Court finds that Plaintiffs have adequately articulated the relevance of Google’s March 29 and April 5 productions to class certification. See Motion, ECF No. 171 at 4 (“Identifying the utterances that were impermissibly used for Google’s own benefit and/or reviewed by human vendors goes to the heart of Plaintiffs’ claims as well as issues of ascertainability on class certification.”).

23 Courts additionally consider prejudice to the opposing party in considering whether to modify the scheduling order under Rule 16. See In re Western States, 715 F.3d at 737.

25 Simultaneous dispositive motion and class certification briefing is insufficient to show prejudice to Google here. See ECF No. 180. However, if fact discovery closes before Plaintiffs’ class certification motion is filed, this could cause prejudice to Google. See id. provided the parties agree to a reopening of fact discovery for a reasonable time after the motion for || class certification is filed. The parties SHALL file a stipulation to such a limited reopening of fact discovery within 5 days of this Order being issued. Conditional on that stipulation being filed, the || Court hereby RESETS the following deadlines: ‘ Current Date Deadline for Plaintiffs to | 5/18/2022 7/18/2022 7 Move for Class Certification Class Certification Opposition | 7/13/2022 9/13/2022 8 Class Certification Repl 8/3/2022 10/3/2022 10 IT IS SO ORDERED.

12 || Dated: May 13, 2022 □□□ MV BETH LABSON FREEMAN United States District Judge © = 17 Z 18