In re Google Location History Litig.

• Decision Date: 25 January 2021
• Docket Number: Case No. 5:18-cv-05062-EJD
• Citation: 514 F.Supp.3d 1147
• Court: U.S. District Court — Northern District of California
• Parties: IN RE GOOGLE LOCATION HISTORY LITIGATION

514 F.Supp.3d 1147

IN RE GOOGLE LOCATION HISTORY LITIGATION

Case No. 5:18-cv-05062-EJD

United States District Court, N.D. California, San Jose Division.

Signed January 25, 2021

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; DENYING MOTION TO RETAIN CONFIDENTIALITY DESIGNATIONS, AND DENYING MOTION TO REOPEN DISCOVERY

Re: Dkt. Nos. 138, 139, 145, 151

EDWARD J. DAVILA, United States District Judge

Plaintiffs Napoleon Patacsil, Michael Childs, Najat Oshana, Nurudaaym Mahon, and Noe Gamboa's (collectively "Plaintiffs") brought this putative class action alleging that Defendant Google LLC's ("Defendant" or "Google") violated Plaintiffs' constitutional and common law privacy rights by tracking and storing Plaintiffs' location data without their consent. This Court previously dismissed Plaintiffs' first Consolidated Class Action Complaint (Dkt. No. 80, "Original Complaint") without prejudice, after which Plaintiffs filed an Amended Consolidated Class Action Complaint. Dkt. No. 131 ("Amended Complaint" or "AC").

Now before the Court are (1) Google's motion to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. No. 145, "Motion to Dismiss"); (2) Google's Motion to retain confidentiality designations relating to certain sealed portions of the Amended Complaint (Dkt. No. 138, "Motion to Seal"); (3) Plaintiffs' cross motion to unseal the Amended Complaint (Dkt. No. 139, "Motion to Unseal"); and (4) Plaintiffs' motion to reopen discovery pursuant to Rules 1, 26, and 37 of the Federal Rules of Civil Procedure (Dkt. No. 151, "Motion to Reopen Discovery"). The Court took the motions under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons below, the Court GRANTS in part and DENIES in part the Motion to Dismiss, DENIES the Motion to Seal, GRANTS the Motion to Unseal, and DENIES the Motion to Reopen Discovery.

I. Background¹

Plaintiffs bring this putative class action alleging that Google violated California statutory, constitutional, and common law by secretly tracking and storing the geolocation and other personal data of its users. AC ¶ 1. According to Plaintiffs, "Google tracks and stores users' locations and movements to amass a vast and comprehensive store of highly valuable geolocation data which it has and continues to commercially exploit." Id. Google told users that a device feature called "Location History" allowed users to control Google's ability to collect and store location information. When Location History is on, it allows Google to continuously track and store information about where you go with every mobile device. When Location History is off, Google assured users that "the places you go are no longer stored." Id. ¶ 2, 41; see also AC Ex. 11; AC Ex. 12 (explaining that turning Location History off would cause Google to "stop[ ] saving new location information"). Plaintiffs allege that contrary to this representation to users, Google collected and stored users' location data even when their Location History was set to off. AC ¶ 3.

Plaintiffs allege that in addition to Location History, Google collects and stores location data through a users' "Web & App Activity," meaning whenever users interact with a Google application (e.g. Google Maps, Google Hangouts, etc.) and whenever users run a Google search on the internet. While Plaintiffs acknowledge that certain Google applications ("apps") require location data to function, they allege that location information is also collected and stored when no reasonable consumer would expect their location to be recorded, including for Google services that have nothing to do with a users' location. Id. ¶ 6. For example, Google gathers location data any time apps and services "update" automatically on a device (id. ¶ 6), when users run non-location dependent searches such as "chocolate chip cookies" on a Google device or Google browser (id. ¶ 49), when Google Android applications are dormant (id. ¶ 52), and when users' devices interact with Wi-Fi access points (id. ¶ 80). Google allegedly gathers location data in these instances regardless of whether users have opted to turn Location History off.

Plaintiffs further allege that Google is able to monetize the location data it collects and stores in a myriad of ways, including by selling precisely targeted advertisements. Id. ¶¶ 85-86. Indeed, Google markets its advertising services as having the ability to "[t]arget your ads to people in—or who've shown interest in—geographic locations" and explains that it may detect users' "location[s] of interest" by evaluating "[a] person's past physical locations." Id. ¶ 90; AC Ex. 41. Google also uses location data to "build better services," to "maintain & improve [Google's] services," to "develop new services," and to "measure performance," all of which enables Google to create operational efficiencies and be competitive in a wide array of industries in addition to advertising. Id. ¶ 93; AC Ex. 10. Plaintiffs allege that these profit-driven uses of consumer location data contradict Google's assertion that its collection of location information does nothing more than benefit consumers by offering convenience such as "driving directions for your weekend getaway or showtimes for movies playing near you." Id.

On August 13, 2018, the Associated Press reported on Google's tracking and storage of location data. Id. ¶ 3; AC Ex. 2 ("AP Report"). The practices disclosed in the article, including that Google tracks and stores location data even when Location History is turned off, were later confirmed by academic cyber security researchers and testified to by Google Senior Privacy Counsel in a 2019 appearance before Congress. Id. ¶ 3. Following the AP Report, Plaintiffs filed multiple complaints against Google which were later consolidated. In the consolidated Original Complaint Plaintiffs alleged that Google violated the California Invasion of Privacy Act ("CIPA"), the right to privacy under the California Constitution, and the common-law tort of Intrusion Upon Seclusion by surreptitiously surveilling and storing location data. Dkt. No. 80 ¶¶ 118–42.

On December 19, 2019, this Court granted Google's Motion to Dismiss the Original Complaint. Dkt. No. 113 ("Dismissal Order"). The Court dismissed the CIPA claim with prejudice, finding that Plaintiffs neither showed that CIPA reaches the software at issue nor that Google was intentionally placing electronic tracking devices on vehicles or other comparable moveable things as required under the statute. Id. at 14. The Court dismissed the constitutional and common law privacy claims without prejudice, finding that the allegations were insufficient for the Court to determine whether Plaintiffs had a legally protected privacy interest in the specific places they went or how often their location was accessed. Id. at 19. The Court granted leave to amend but noted that Plaintiffs were not permitted to add new causes of action or parties without a stipulation or order of the Court under Rule 15 of the Federal Rules of Civil Procedure. Id.

Following the Court's Dismissal Order, the parties filed a stipulation agreeing to extend the deadline for Plaintiffs to file an amended complaint and staying all discovery until after Google has answered the amended complaint. Dkt. No. 118. Plaintiffs then asked this Court to certify the Dismissal Order for interlocutory appellate review, which this Court declined to do. Dkt. No. 120 at 2; Dkt. No. 126. Plaintiffs moved for reconsideration of the Dismissal Order, arguing that the Ninth Circuit's decision in In re Facebook, Inc. Internet Tracking Litig. , 956 F.3d 589 (9th Cir. 2020), amounted to a change in the law warranting reconsideration. Dkt. No. 129. This Court denied that motion on June 3, 2020, finding that In re Facebook, Inc. Internet Tracking Litigation had not amounted to a "material change in the law." Dkt. No. 130 at 2.

On July 6, 2020, Plaintiffs filed the Amended Consolidated Class Action Complaint, reasserting the constitutional and common law privacy claims and adding a claim for unjust enrichment, or alternatively, breach of contract. Dkt. No. 131. The parties filed a stipulation, which this Court approved, allowing Plaintiffs to add new parties and a new cause of action to the Amended Complaint. Dkt. No. 137. Plaintiffs filed portions of the Amended Complaint under seal in accordance with the Stipulated Protective Order in this action. Dkt. No. 112 ("Protective Order"). At the time the Amended Complaint was filed, Plaintiffs did not take a position as to whether the designated material satisfied the requirements for sealing and reserved the right to challenge the sealability of the documents going forward. Dkt. No. 132 at 1-2. Google then filed a Motion to Retain Confidentiality Designations in accordance with the Protective Order, preemptively requesting that the sealed material remain sealed. Dkt. No. 138. Shortly thereafter, Plaintiffs filed a Cross Motion to Unseal Documents. Dkt. No. 139. Pursuant to Local Civil Rule 79-5, Plaintiffs also filed three administrative motions to file the same material, which was described or referenced in each of their briefs on the issue, under seal. Dkt. Nos. 141, 147, 150. The briefing and arguments on all of these sealing-related motions overlap significantly and the Court considers them together below.

On August 31, 2020, Google filed its Motion to Dismiss, seeking to dismiss all counts in the Amended Complaint. Plaintiffs oppose the Motion. Dkt. No. 149 ("Opposition").

With the Motion to Dismiss pending, Plaintiffs filed a motion to reopen discovery pursuant to Federal Rules of Civil Procedure 1, 26, and 37. Dkt. No. 151. Google opposes the Motion to Reopen Discovery, arguing that Plaintiffs ignore the parties' stipulated agreement to stay discovery until Google has answered the Amended Complaint.

II. Google's Motion to Dismiss

A. Legal Standard

Federal Rule...