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Federal magistrate judge sides with Google, agrees to move subpoena fight

By Jessica Karmasek | Aug 11, 2015


WASHINGTON (Legal Newsline) - A federal magistrate judge has sided with search engine giant Google Inc., agreeing to move a fight over subpoenas to a Mississippi federal court.

In a July 31 order, U.S. Magistrate Judge Deborah Robinson for the U.S. District Court for the District of Columbia granted Google’s motion to transfer.

In June, Google filed motions in the D.C. federal court to compel Digital Citizens Alliance, the Motion Picture Association of America and law firm Jenner & Block LLP to produce documents pursuant to a subpoena issued by the company in the U.S. District Court for the Southern District of Mississippi.

Soon after, Google filed a motion to transfer the motions to the Mississippi federal court.

The company currently is suing Mississippi Attorney General Jim Hood in the Southern District of Mississippi over his efforts to regulate third-party content online.

In her 10-page order, Robinson said “exceptional circumstances” warranted the move. The DCA, MPAA and Jenner & Block, the judge noted, also failed to show “undue burden.”

“The potential for inconsistent results, the risk of disrupting management of the underlying case, and the need for complex relevancy determinations taken together warrant consolidated case management,” Robinson wrote.

The DCA, MPAA and Jenner & Block opposed the transfer.

“Google attempts to justify its burdensome third-party subpoenas by asserting that Attorney General Hood’s motives for pursuing his investigation are the heart of the Mississippi lawsuit, and that all documents in the possession of the MPAA and Jenner that in any way relate to Attorney General Hood and Google are relevant to that issue,” they wrote in a memorandum opposing Google’s motion.

“But even if Attorney General Hood’s motives are tangentially relevant to the litigation -- and they can hardly be more than that, given Google’s repeated representations to the Mississippi court that the case largely presents questions of law -- it does not follow that the MPAA and Jenner have to empty their files.”

Jenner & Block partner David Handzo wrote in the filing that the MPAA and his law firm already have agreed to produce all “responsive” documents they exchanged with Hood prior to Google’s lawsuit.

“After all, only documents that Attorney General Hood actually saw could conceivably influence him,” Handzo wrote. “That should suffice if Google wants to probe the Attorney General’s motives.”

Handzo contends Google filed its motion simply because it wants more.

“Google demands documents that the Attorney General never saw, and that instead include the internal deliberations of the MPAA, its communications with its members, and the legal advice of Jenner, as well as communications with others similarly aggrieved by Google’s conduct, on the misguided theory that such documents somehow are probative of Attorney General Hood’s intent,” he wrote.

“Moreover, Google’s demands impose very substantial burdens on the subpoenaed parties, not only because they require a wide-ranging search for documents, but more importantly because many of the documents are protected by the attorney-client and First Amendment associational privileges.

“Not only would the MPAA and Jenner be required to devote countless hours to the creation of privilege logs, but further time-consuming and expensive litigation with Google over the privilege assertions would be a near certainty.”

Google is seeking documents it believes are related to the Mississippi case.

In March, Judge Henry Wingate for the Southern District of Mississippi granted Google’s motion for a temporary restraining order and motion for preliminary injunction against Hood.

The judge’s order prevents the attorney general from enforcing subpoenas or bringing a civil or criminal charge against Google under state law, as threatened.

Hood filed an appeal with the Fifth Circuit soon after.

Last month, 40 of the nation’s state attorneys general filed an amicus brief siding with Hood.

The attorney general, who sent a 79-page subpoena to Google last fall, has said he suspects the company is helping criminals through its search engine and autocomplete function. He also takes issue with the company’s sharing of YouTube ad revenue.

But Google, which filed its lawsuit against Hood in December, argues it can’t be held responsible for third-party content. It also believes the attorney general is in cahoots with movie studios to use legal action to obtain better piracy protection.

In his full written order March 27 -- a follow-up to his March 2 order granting Google’s motion for a TRO and preliminary injunction -- Wingate was highly critical of the attorney general, saying he could not “wage an unduly burdensome fishing expedition into Google’s operations.”

Last week, the Consumer Electronics Association, Computer and Communications Industry Association and Engine asked the Fifth Circuit to uphold Wingate’s injunction against Hood.

The industry groups contend the MPAA -- a Washington-based trade association and lobbying group -- and Hood’s office collaborated on a secret “dirty tricks” campaign to attack Google.

Google declined to comment on the magistrate judge’s ruling.

Neither Handzo, who represents Jenner & Block and the MPAA, nor Hood could not immediately be reached for comment.

From Legal Newsline: Reach Jessica Karmasek by email at

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