U.S. District Judge Lucy Koh, Northern District of California.
U.S. District Judge Lucy Koh, Northern District of California. (Jason Doiy)

SAN FRANCISCO — A federal judge has refused to allow Google Inc. to suspend a privacy class action over email scanning with a mid-stream appeal.

In a seven-page order issued Monday evening, U.S. District Judge Lucy Koh of the Northern District of California declined to certify for interlocutory review her order rejecting Google’s main defenses to multidistrict litigation challenging the company’s practice of scanning Gmail messages to help sell ads. Ruling in September, Koh allowed plaintiffs to move forward with claims the automatic scanning violates wiretap laws.

Although Google claimed the order staked out novel legal positions that should be reviewed, Koh wrote that the tech giant had waited too long to seek guidance from an appeals court. “The long and tortuous procedural history of this litigation … demonstrates why further delaying this three-year-old litigation for immediate appellate review is unwarranted,” she wrote. “The court finds that termination of the litigation is more likely to be materially advanced by proceeding to final judgment.”

Koh’s order siding with plaintiffs in In re Google Gmail Litigation, 13-2430, put the Valley on notice and incited a spate of similar suits against Yahoo Inc. and Facebook Inc. Quinn Emanuel Urquhart & Sullivan partner Kathleen Sulllivan, who was tapped by Google to shepherd its appeal, told Koh at an October hearing that the cases could redefine how technology companies interact with users.

Northern District judges have clashed on the underlying legal questions. In December, U.S. Magistrate Judge Paul Grewal threw out a class action that accused Google of intruding on users’ privacy by harnessing their personal data across various products. Grewal found that Google’s practices were covered by an exemption in the Electronic Communications Privacy Act for activities conducted by companies in the “ordinary course of business.” Koh rejected that argument in the case before her, finding that the exemption must be defined narrowly.

“Given the implicit conflicts with Judge Grewal’s opinion, it seems like there’s good reason to get the Ninth Circuit’s take on the matter,” said Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law. “It’s a pretty important question that we need a clear answer to.”

Sullivan referred questions to Google.

“We’re disappointed in this decision but continue to believe that the case is without merit,” a Google spokesman said in a statement.

The stakes were also high for the plaintiffs, who feared their claims could go stale as they waited for guidance from the U.S. Court of Appeals for the Ninth Circuit. Google also filed for interlocutory review of U.S. District Judge James Ware’s refusal to dismiss a class action filed over the company’s collection of data during its Street View mapping project. The Ninth Circuit ultimately affirmed the district judge’s ruling, but the process took more than two years.

“A two-year delay is a disaster in a class action,” said Kerr & Wagstaffe partner Nancy Tompkins, who argued the motion for the plaintiffs. “Google obviously was hoping to repeat that stunt here.”

Kerr & Wagstaffe is representing a sub-class of minors whose emails were scanned. Wyly-Rommel’s Sean Rommel, who is co-lead counsel for the multidistrict litigation, declined to comment on the ruling. Koh is scheduled to hear the plaintiffs’ motion for class certification on Feb. 27.

Koh noted in her order that Google passed up an earlier opportunity for appellate review. In 2011, retired U.S. District Judge James Folsom of the Eastern District of Texas rejected Google’s motion to dismiss the first case filed over the Gmail scanning. In a decision that was later echoed by Koh, Folsom vetoed Google’s arguments that users had consented to have their communications intercepted and that the activities were covered by the “ordinary course of business” exemption. The ruling went unappealed, according to Koh’s order.

The Texas case was clustered in the Northern District in 2013 with five other suits filed against Google. After ample briefing and discovery, the window for appeal has closed, Koh wrote.

“This is not a case in which the parties have yet to accrue substantial litigation expenses that can be avoided by immediate appeal,” she wrote.

But Goldman said Koh’s order could mean the case never reaches the Ninth Circuit. If the parties decide to settle, the implications of Koh’s landmark order will have to be resolved by another case, he said.

“Until then, it’s just this opinion floating in the ether,” he said. “It wasn’t fully challenged and blessed, but no one else is around to stress-test it. So it just lives as a zombie until the next case.”

Contact the reporter at jlove@alm.com.