Google: Media Too Late to Unseal Gmail Privacy Class Action Documents

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UPDATE: On March 18, 2014, Judge Koh denied Class certification for the Gmail privacy class action lawsuit.

Increased media scrutiny of ongoing Gmail privacy class action lawsuits is not a compelling reason to unseal documents used for Class certification proceedings, Google argued in a motion filed Monday to stop media outlets from intervening.

The Class certification documents include emails between company employees and data related to user experience studies, information that The Washington Post, The New York Times and others argue is significant to their reporting on the Internet privacy issue. The media outlets argue that the information is in the public interest and had been sealed unnecessarily. Google shot back that there were several holes in this argument.

For one, Google said, the class action lawyers for the search giant argue that the media outlets are Johnny-come-latelys, as federal Judge Lucy H. Koh had already ruled in the search giant’s favor in previous motions allowing the sealing of confidential information; plaintiffs alleging Gmail privacy violations had also raised no objections to keeping corporate documentation out of the public record.

Further, “the Media Intervenors never objected to any of these prior sealing orders, and they have published numerous accounts … without ever claiming that the limited sealing of confidential material has somehow hindered their ability to report on the issues raised,” Google said.

Moreover, the actions of the search giant regarding Class certification documents are not governed by a standard requiring “compelling reasons” to seal information, Google said.

Even so, Google notes that Judge Koh had already found that their motions to seal information regarding alleged Gmail privacy violations met even that standard, while the media outlets including The Washington Post and The New York Times had cited no relevant case law even if the company’s motions did not meet that standard.

For the plaintiffs’ part, they began legal proceedings several years ago citing violations of the Electronic Communications Privacy Act, alleging that the company collected personal data from Gmail users without their consent.

Google has fought unsuccessfully to dismiss the Gmail privacy class action lawsuits, which are centralized in in the U.S. District Court for the Northern District of California.

Judge Koh had previously denied an appeal to the Ninth Circuit, arguing that the company had allowed proceedings to continue for far too long.

In addition, the company cannot cite part of the ECPA regarding data or information collected “within the ‘ordinary course of business’ exception” because Google employees’ actions were not consistent with corporate policy. People who have non-Google email accounts alleged that their rights were violated as provided by the Electronic Communications Privacy Act because, as they had not assented to Google’s terms and provisions, their emails were illegally harvested.

The classes are represented by Sean F. Rommel of Wyly-Rommel PLLC; Jerome Tapley of Cory Watson Crowder & DeGaris PC; and James M. Wagstaffe, Nancy L. Tompkins of and Michael K. Ng of Kerr & Wagstaffe LLP.

The consolidated Gmail Privacy Class Action Lawsuits are In re: Google Inc. Gmail Litigation, MDL No. 2430, U.S. District Court, Northern District of California.