In re Google RTB Consumer Privacy Litigation

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA IN RE GOOGLE RTB CONSUMER Case No. 21-cv-02155-YGR (VKD) PRIVACY LITIGATION ORDER RE FURTHER PROCEEDINGS 9 FOR RESOLUTION OF DISPUTES RE GOOGLE'S PRIVILEGE CLAIMS

13 The Court has considered the parties’ joint status report regarding the remaining disputes concerning Google’s privilege claims and their respective proposals for resolving those disputes.

15 Dkt. No. 454. According to the report, plaintiffs continue to dispute over 5,000 of Google’s 10,525 privilege log entries. Plaintiffs’ principal contention is that it cannot determine from the information in Google’s privilege logs whether the disputed claims of privilege or protection are proper.

19 The Court agrees with plaintiffs that Google’s privilege entries generally do not provide sufficient information for the Court to assess the merits of Google’s claim that a logged document is privileged or protected from disclosure. As the Court has previously observed, many of Google’s privilege log entries do not disclose the information the Ninth Circuit has held sufficient to make a prima facie claim of privilege or protection. See Dkt. No. 360 at 3-4, 6-7 (discussing In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992)). Moreover, Google’s privilege claims are not made in a categorical fashion that might permit the Court to consider and resolve disputes about groups of similar documents without requiring descriptive details for each individual document within the group. Id. at 4 (citing Fed. R. Civ. P. 26, Advisory Committee Note documents as privileged or protected.

2 Given the number of disputed entries, it is impossible for the Court to conduct an in camera review of, or to consider briefing about, each of the remaining disputed entries or even a significant portion of them. Plaintiffs suggest that Google re-review all challenged entries, after which the parties will select a “statistically significant sample” of disputed documents for in camera review. However, it is not clear from plaintiffs’ proposal how resolution of the sampled disputes will resolve the remainder. Google suggests a re-review of a limited subset of its privilege entries, but offers no proposal for how to deal with the remaining disputed entries.

9 In these circumstances, the Court believes that the only practical course of action is to require Google to re-review all of the disputed entries and to provide more robust information to support its privilege claims. Accordingly, the Court orders as follows: 12 1. Google shall re-review those documents among the 5,177 challenged entries that it has 13 not already re-reviewed. Google will complete the re-review by April 21, 2023. If it 14 identifies entries for which it determines the claim of privilege or protection should be 15 withdrawn or modified, Google shall promptly produce the corresponding documents 16 in whole or with redactions, as appropriate. The Court expects this production to be 17 made on a rolling basis, and to be completed no later than April 28, 2023.

18 2. For any claims of privilege or protection that remain among the 5,177 challenged entries 19 after Google’s re-review, Google must provide to plaintiffs at least the following 20 information for each entry: (1) date, (2) author/sender/custodian name, (3) all known 21 recipients, (4) the attorney(s) involved, (5) the nature of the document, (6) the subject 22 matter of the document, (7) the privilege or protection claimed, and (8) an explanation of 23 the basis for the claim of privilege or protection if not evident from the other information 24 disclosed for that entry sufficient to enable the Court to evaluate the claim without 25 reviewing the document in camera. If the sender or recipient of an email communication is 26 a distribution list, Google must provide the current membership of the list, a description of 27 the nature of the list (e.g., company-wide, specific department, executive team, etc.), a 1 recipients who were not Google employees, and an explanation for why disclosure to the 2 distribution list does not undermine or destroy the confidentiality of the privileged or 3 protected communication in question. Google shall provide this updated privilege log 4 information to plaintiffs no later than May 5, 2023.

5 3. After Google serves its updated privilege log, the parties shall confer about the remaining 6 disputes and how to resolve them. By May 19, 2023, the parties shall jointly file a status 7 report with the Court that (1) summarizes the current disputes remaining and (2) 8 provides their agreed or respective proposal(s) for efficiently resolving al/ remaining 9 disputes. The report must not exceed 1,000 words. The report must attach a copy of 10 the entries on Google’s privilege log that remain in dispute.

11 IT IS SO ORDERED.

12 Dated: March 27, 2023 a ¢ «6 VIRGINIA K. DEMARCHI IS United States Magistrate Judge

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