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

U.S. District Judge Lucy Koh voiced concerns about allowing legions of email users to band together with claims that Google Inc. violated their privacy by automatically scanning Gmail messages.

At a hearing in the U.S. District Court for the Northern District of California on Thursday, Koh grilled plaintiffs lawyers on issues ranging from how they will determine who belongs in the proposed classes to how they will demonstrate what email users collectively knew about Google’s policies. Google insists that email scanning is common knowledge. But plaintiffs claim Google has not publicly explained how it intercepts messages to help sell ads, and they accuse the company of violating the Electronic Communications Privacy Act and a handful of state privacy laws.

Arguing the motion before Koh, Sean Rommel of Wyly-Rommel said the plaintiffs have retooled their theory to focus on “Content One Box,” a little-known tool that Google allegedly uses to extract information from users’ messages. Koh was perplexed by the shift in the plaintiffs’ arguments. She allowed them to move forward with most of their claims in September, denying Google’s motion to dismiss the case.

“Your position sounds completely different than what you previously argued to me on the motion to dismiss,” she said.

Google lawyer Michael Rhodes of Cooley seconded Koh’s frustrations. He told her he’d prepared a list of every time the plaintiffs have adjusted their proposed class definitions.

“They’ve changed their theory so many times that we got dizzy,” he said.

Many in the Valley are closely watching In re Google Gmail Litigation, 13-2430, which has spawned similar email privacy suits against Yahoo Inc. and LinkedIn Corp. The cases threaten to deal painful financial blows to tech companies if plaintiffs lawyers prevail. ECPA allows for damages of as much as $10,000 per violation, with classes of users potentially numbering in the millions.

Plaintiffs lawyers at Texas’ Wyly-Rommel and Alabama’s Cory Watson Crowder and DeGaris want Koh to bless a sweeping class of non-Gmail users who have sent or received emails from people who use the service, as well as classes of minors, Google Apps for Education users, Cable One users and several state classes.

Plaintiffs claim their case is tailor-made for class certification.

“The uniform nature of Google’s secret content extraction, acquisition, and use practices—practices that are not necessary for or part of the Gmail delivery process—and Google’s failure, through its uniform disclosures, to truthfully and adequately inform consumers about these secret and unlawful privacy violations, make this case perfectly suited for class treatment,” Rommel wrote in court papers.

But Rhodes argued that the case will require investigations into how much each user knew about Google’s practices, making it inappropriate for class certification. He noted that the media had widely reported Google’s scanning of messages to target advertisements before the complaint was filed.

“There is a body of people in the class who have … actual knowledge of what’s actually going on, and they have accepted that as a fair trade-off,” he said.

Rhodes added that verifying which users belong to more specific classes, such as for minors, could prove problematic because users self-report their backgrounds to Google. He insisted that plaintiffs have yet to explain how they would sift through hundreds of millions of email users to determine who truly belongs in the classes.

“What you have here are lawyers who keep promising and promising and promising that we have a way to do it, it can be done,” Rhodes said. “The burden is on them to show that they have a workable process.”

Koh pressed Rommel about how plaintiffs would treat users who use Gmail as well as another email provider.

“How are we supposed to make sure that our classes aren’t over-inclusive?” she asked.

Rommel brushed aside concerns about determining class membership and said any burden on Google was justified: “It’s not an extraordinary process if the company violates the law to get us there.”

Contact the reporter at jlove@alm.com.