Google Requests Contempt Order For $10,000 Sanctions Per Day Against…Google: eDiscovery Case Law

by CloudNine

Last month, we wrote that Google went 0 for 2 in August in its request for review of warrant cases related to the Stored Communications Act of 1986 (SCA) and the order to produce ESI stored internationally that is subject to warrants was upheld in both cases, including a ruling in the Northern District of California on August 14.  Now, Google has filed an instant motion asking the Court to: “a) hold Google in civil contempt of the August 14 order; b) impose sanctions of $10,000 for every day that Google fails to comply; c) stay those sanctions until seven business days after the Ninth Circuit affirms the Court’s order; and d) require Google to preserve any information in its possession that is subject to the search warrant.” As noted in California District Judge Richard Seeborg’s order, “the The terms of the proposed sanctions are similar to the terms of stipulations that Google and other companies have entered into with the government in similar cases in other jurisdictions.”

So, why did Google ask the Court to impose a daily sanction of $10,000 against Google?  Evidently, while the government and Google “agree that Google should be held in contempt of the August 14 order”, they “disagree, however, about the appropriate way to devise a sanction that will ensure Google’s compliance and about whether an evidentiary hearing is needed to conduct that inquiry effectively.”  The government argued that “an evidentiary hearing is needed to assess the equities at stake in this case properly and to devise an appropriate sanction”, while Google contended that there is “no need to develop a more substantial evidentiary record or to devise a more severe sanction than the $10,000 per day fine that Google has proposed.”  Google also noted that “this Court already found in the August 14 order that, ‘[i]n light of the Second Circuit decision in Microsoft and the absence of relevant Ninth Circuit precedent, Google’s diligent, good faith efforts to comply with current law do not warrant contempt at this stage of the proceedings.’”

In ruling on the dispute, Judge Seeborg stated: “Of the two sides, Google’s arguments are more persuasive…The government acknowledges that Google has a right to press its appeal; it is not arguing that Google must turn over the information now. Neither is it arguing—at least at present—that Google should be held in criminal contempt for its past behavior. Thus, the only question currently in need of answer is what sanction will secure Google’s prompt compliance with the August 14 order should its appeal fail.”  Judge Seeborg also noted that “Should Google prevail on appeal, the issue will be moot. If Google loses, it will be required to comply with the August 14 order or be subject to the sanctions imposed by this order. If, at that time, Google fails to turn over data the government believes Google previously possessed but did not preserve, the government can raise the issue and seek an appropriate remedy.”

Tip of the hat to ACEDS for the link to the latest order in this case.

So, what do you think?  Will Google win its appeal?

[View source.]

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