Judge Tells Non-Party Google: Show Apple Your Search Terms

Magistrate Judge Paul Grewal

E-discovery disputes typically arise between the parties to a lawsuit. But what happens when a non-party to the lawsuit is subpoenaed to produce electronically stored information? To what extent do its obligations mirror those that apply to the parties under the federal discovery rules?

That was the question in a recent case in which the non-party was none other than search giant Google. The question arose after another technology giant, Apple, as part of its ongoing patent litigation against Samsung, subpoenaed Google to produce certain documents.

After Google produced documents in response to the subpoena, Apple and Google held a meet-and-confer at which Apple raised concerns about the deficiency of Google’s production. To alleviate its concerns and enable it to evaluate the adequacy of the production, Apple requested that Google provide a list of the search terms and custodians Google used to find the documents.

Google refused to turn over the search terms and Apple filed a motion to compel. Earlier this month, U.S. Magistrate Judge Paul S. Grewal, sitting in the U.S. District Court in San Jose, Calif., issued his ruling on Apple’s motion.

Discovery Obligations of a Non-Party

As Judge Grewal explained, Google shifted in its arguments for why it should not turn over the search terms. Initially, at the meet-and-confer with Apple, Google maintained that its search terms and choice of custodians were privileged under the work-product immunity doctrine. It quickly abandoned this argument, the judge noted, “no doubt in part because case law suggests otherwise.”

Before the court, Google argued that producing the search terms and custodians would be unduly burdensome. The judge dismissed this in short order, explaining that Google provided no evidence to support this argument. Google also offered, in lieu of revealing its own search terms, to consider search terms and custodians suggested by Apple, but Apple declined.

After failing with these arguments, Google finally got Judge Grewal’s attention with the argument he described as “the heart of its opposition.” Google’s argument was that its status as a non-party to the lawsuit exempted it from the same sorts of obligations parties would bear to show the sufficiency of their production, at least until Apple first demonstrated that Google’s production was somehow deficient.

Google complains that “the impact of requiring non-parties to provide complete ‘transparency’ into their search methodology and custodians in responding to non-party subpoenas whenever unsubstantiated claims of production deficiencies are made would be extraordinary.” At the hearing, Google explained that providing custodians or search terms would open it to further burdensome discovery by Apple.

Judge Grewal, in his opinion, immediately rephrased Google’s argument in words that foreshadowed what he thought about it:

Google raises an important question: is it “extraordinary” to expect third parties to be transparent about their discovery methods? Underlying Google’s premise is that transparency in the discovery process is a burden or that the methods of discovery are somehow sacrosanct, and that revealing those methods opens the floodgates to more requests for discovery.

To resolve this question, Judge Grewal relied on a case that neither party cited in its arguments, DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010). It, too, involved a party’s request that a non-party provide search terms and custodians. And it involved a similar impasse, in which the non-party refused to turn over the terms and the party refused to suggest new ones. The DeGeer judge — now-retired U.S. Magistrate Judge Nan R. Nolan — ordered the non-party to produce the search terms and custodians in the hope it would facilitate meaningful discussions between the parties regarding any deficiencies in the production.

Although she ordered production, Judge Nolan was not happy with either side in the subpoena dispute. The non-party, by failing to disclose its search terms and custodians, “violated the principles of an open, transparent discovery process,” she wrote. At the same time, the party that sought the search terms had no excuse for its intransigence in failing to suggest search terms and custodians of its own, she added. Both sides should have cooperated in agreeing on search terms and custodians before the production ever took place, she said.

Admonishments for Both Sides

Judge Grewal found this reasoning applicable to the dispute between Google and Apple, concluding that each came up short in meeting its duty to collaborate with the other:

As the DeGeer court observed, transparency and collaboration is essential to meaningful, cost-effective discovery. Google’s attempt to stand outside of these tenets because of its third-party status is unpersuasive. Although it should not be required to “subsidize” litigation to which it is not a party, it confuses undue burden with its obligations, once subject to a subpoena, to participate in transparent and collaborative discovery. Third-party status does not confer a right to obfuscation or obstinacy.

Apple likewise failed to collaborate in its efforts to secure proper discovery from Google. It requested search terms and custodians only after it suspected that Google’s discovery was insufficient, and when Google offered to run additional terms on additional custodians, Apple made no effort to explore meaningful collaboration on obtaining the documents it believed were not produced.

Many years ago, when I was a young Catholic-school student, we would have called that brief lecture on cooperation a “slap on the knuckles.” But it remained for Judge Grewal to decide the question before him of whether to compel Google to produce its search terms and custodians. This he resolved in short order:

The court finds that production of Google’s search terms and custodians to Apple will aid in uncovering the sufficiency of Google’s production and serves greater purposes of transparency in discovery. Google shall produce the search terms and custodians no later than 48 hours from this order. Once those terms and custodians are provided, no later than 48 hours from the tender, the parties shall meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.

The ruling is barely seven pages but it is remarkably rich in the lessons it provides. For one, it makes clear that the e-discovery obligations of a non-party in response to a subpoena largely mirror those of a party under the federal rules. For another, its stands for the proposition that disclosure of search terms and custodians is consistent with the obligation that the e-discovery process be transparent and collaborative.

Last but not least, we cannot leave Judge Grewal’s opinion without noting the zinger of a footnote he dropped. As noted above, one of Google’s arguments was that producing its search terms and custodians would be unduly burdensome. After dispensing with this argument, Judge Grewal added the following in a footnote: “The court cannot help but note the irony that Google, a pioneer in searching the internet, is arguing that it would be unduly burdened by producing a list of how it searched its own files.”

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.