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Google's Request to Bump Gmail Scanning to 9th Cir. Rejected

By William Peacock, Esq. on February 05, 2014 | Last updated on March 21, 2019

In September, Google suffered a defeat at the hands of the most powerful woman in Silicon Valley, Judge Lucy Koh, whose courthouse credits include the Apple v. Samsung dispute, the secret anti-poaching agreement labor class action, and more.

The Gmail scanning lawsuit, which is just one of the privacy-related lawsuits pending against the tech giant, stems from Google's practice of scanning all email sent to or from Google email accounts, paid or free, for purposes of delivering advertisements or gathering "big data" for user profiles and market research.

Google argued that there was no expectation of privacy for its email customers, but Judge Koh disagreed, stating that a customer reading the company's privacy policy would not have necessarily understood that her emails were being scanned.

Obviously, Google isn't happy. Labeling this a "novel issue of law," the company asked for the right to file an interlocutory appeal to the Ninth Circuit, a request which was denied by Judge Koh last week. [PDF via Santa Clara University.]

The Standard

Straight out of the statue, the legal standard allows the district court to certify an interlocutory appeal when the court is of "the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b) (emphasis added).

And because we don't want every litigant running to Daddy Kozinski, the Ninth Circuit cautions that this is "a departure from the normal rule" and it "must be construed narrowly."

You Had Your Chance

It began on a cold day in Texas, more than three years ago, in November 2010. Discovery, motion work, transfers of venue, consolidation of cases, and class certification disputes have already been handled. As Koh notes in her order, "this litigation is unlike other cases in which little to no discovery has occurred prior to the motion to dismiss."

She also notes that Google had an opportunity appeal a similar May 23, 2011 order from the Texas court, which also rejected Google's motion to dismiss based on consent and ordinary course of business exception arguments, the same arguments presented to Judge Koh last year. Google passed.

Three Years of 'Tortuous Procedural History'

The first case was filed in Texas. After motions, discovery, and more motions, it was transferred to the Northern District of California. Lawyers, smelling blood in the water, filed multiple other class-action lawsuits across the country, all of which were transferred and consolidated.

There have been battles over class certification, amending complaints, consolidating complaints, and more class certification, as well as multiple motions to dismiss.

Doesn't 'Advance the Ultimate Termination of the Litigation'

As you can probably tell from the "tortuous procedural history," this case has been going on for quite a while, countless sums have been spent, and an unimaginable amount of ink has been spilled on paper.

In interlocutory appeal, at this point, will have come after much of the expenses have already been incurred. Furthermore, the lawsuit is set for trial in October 2014. At this point, the shortest route to clearing the docket is to proceed through judgment.

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