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Finding the Needle When You Can’t Locate the Haystack

Finding the Needle When You Can’t Locate the Haystack – How do you narrow down the scope of e-discovery?

Joffe v. Google, No. 3:10-md-02184, currently pending in the Northern District of California, is predicted to be the biggest corporate wiretap case in history – assuming the plaintiffs have standing. The plaintiffs accuse Google of intercepting their wireless transmissions (and the wireless transmissions of others) while automatically connecting to wireless networks as part of Google’s “Street View” mapping process. However, the plaintiffs must show that wireless transmissions sent or received by them were, in fact, intercepted by Google.

Anyone who is familiar with the coverage of the Google Street View product can imagine the vast scope of communications that may have been intercepted within the three-year period that Google recorded these communications. The plaintiffs in Joffe must show that their personal communications – either sent or received – were actually intercepted by Google.

The plaintiffs’ problem in this case is not overly unusual, even if it is a high-profile, high-stakes case. Many cases involve a “needle in a haystack” discovery issue. Cases such as Joffe require the party seeking information to go one step further by locating the appropriate haystack and by deciding how to look for the needle.

In Joffe, the parties could not come to agreement on how to limit the “haystack,” or universe, of data. The court granted limited discovery to the plaintiffs on the issue of standing in February 2014. By August, the parties had filed a joint discovery dispute letter. In this letter, plaintiffs limited their requests to Google’s Street View data and two other documents, which Google agreed to produce, and which would help plaintiffs understand the data. The parties disagreed regarding the scope of the Street View data to be produced.

The parties agreed to the appointment of a Special Master and protocol governing the jurisdictional discovery. In ruling on the parties’ objections to the protocol recommended by the Magistrate Judge, the Northern District of California ultimately compromised by allowing the plaintiffs to see the results of the Special Master’s searches and provide feedback “to aid in subsequent searches.” The court rejected the plaintiffs’ objection to Google’s participation in the search formulation process.

Of note, this process is limited only to discovery related to standing. Should the case progress, the proceedings will be worth watching for anyone interested in e-discovery issues.

Valerie Diden Moore

Valerie Moore