Google Presses for Data Preservation Relief in Chrome Privacy Case
Google wants relief from a costly data preservation burden in the Chrome privacy case in which it won summary judgment. It asked U.S. Magistrate Judge Susan van Keulen for Northern California in San Jose for an order absolving the company from its data or cost obligations, now that the plaintiffs in the case are appealing the summary judgment order to the 9th Circuit, said a supplemental submission Tuesday (docket 4:20-cv-05146).
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The plaintiffs had alleged that Google unlawfully causes Chrome to record and send users' personal information to the company regardless of whether users opt to sync Chrome to their Google accounts. But U.S. District Judge Yvonne Gonzalez Rogers’ order said Google adequately disclosed, and plaintiffs consented to, the collection of the “at-issue data.”
Rogers issued Google two data preservation orders last summer that remain under seal, and Google now seeks court permission to delete the data it has already collected and is preserving, or shift the cost of the data preservation to the plaintiffs, said the submission. In light of the plaintiffs’ appeal of the summary judgment decision to the 9th U.S. Circuit Court of Appeals, the magistrate judge scheduled a Jan. 10 in-person hearing for arguments about whether she has jurisdiction to grant Google the relief it seeks. Tuesday was the deadline for both sides to weigh in with briefs on the jurisdictional issue, but attorneys for the plaintiffs didn’t file.
Throughout the litigation, the plaintiffs “sought extensive preservation of data related to the claims of the putative class members,” said Google’s submission. Under the court’s July 15 and Aug. 5 orders, Google “preserved an enormous quantity of log-based event-level data, and it continues to preserve large amounts of data daily, at a significant monetary, human, and business cost,” it said.
Case law shows the filing of a notice of appeal divests the district court of jurisdiction over aspects of a case involved in the appeal but not over issues that are collateral to the main action, argued Google on the jurisdictional question. “Here, determining whether Google must continue to preserve data going forward and which party should bear the costs of preservation (including the costs associated with the storage of the data it has already amassed) has no bearing on (and is therefore collateral to)” the plaintiffs’ appeal, it said. The 2014 decision in Lord Abbett Municipal Income Fund v. Asami is “instructive,” it said. In that case, the district court ruled it retained jurisdiction in a computer-preservation dispute because the issue at hand was collateral to a determination of the underlying case's merits.
The data preservation burden on Google “is immensely large,” and the plaintiffs’ likelihood of success is “immensely low,” said the submission. The relevance of the data covered by the preservation orders “diminishes with each passing day,” even if the 9th Circuit were to reverse the “well-reasoned summary judgment order,” it said. The current preservation orders “require field-based preservation for log data involving dozens of Google products that are not at issue for all U. S.-based log events,” it said.
If the court were to maintain the status quo while the appeal is pending, and plaintiffs’ counsel attempts to advance a new theory of class certification if their appeal is successful, “the burden on Google would be immense,” said the submission. “Google is being required to preserve a vast amount of data that it has no business purpose to retain, for users who will likely never be a part of any certified class.”