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SAN FRANCISCO — The federal judge overseeing Google Inc.’s fight with federal prosecutors over foreign-stored data expressed concerns Wednesday over the company’s continued refusal to comply with a search warrant in a criminal investigation.

U.S. District Judge Richard Seeborg of the Northern District of California held off ruling on prosecutors’ request to sanction Google for failing to comply with his August decision ordering the tech giant to hand over the contents of 22 email accounts. Likewise, the judge didn’t indicate whether he’d grant the government’s request for an evidentiary hearing about Google’s decision to stop responding to search warrants for data stored abroad after a decision last year from the U.S. Court of Appeals for the Second Circuit found Microsoft didn’t have to hand-over foreign-stored emails.

But Seeborg did press Google’s lawyer, Todd Hinnen of Perkins Coie, to lay out what made Google’s case special.

“In some ways the biggest concern I have is this notion that a private entity can pick and choose when it’s going to respond to an order that says it must comply,” Seeborg said. 

“The usual process is [to] comply with the order of a United States District Court,” Seeborg said. “That’s pretty straightforward.”

Hinnen responded that this case put Google in a “Catch-22.” If the company complies with the court’s order, it would give up its right to appeal an issue where it’s seeking clarity in the law. But by failing to hand over the emails, Google’s lawyer conceded the company will inevitably be in contempt of court.

“I can tell you if it weren’t necessary to perfect [Google’s] right to appeal, we wouldn’t be here,” he said.   

The hearing comes as tech companies face increasing dilemmas over how to handle U.S. court orders that fly in the face of foreign privacy regimes. Seeborg noted early in Wednesday’s hearing that the U.S. Supreme Court recently announced it will take up the Second Circuit’s decision in the Microsoft case. The upcoming decision from the High Court, Seeborg said, could give Google the clarity it’s seeking.

Arguing for the government, Justice Department lawyer Andrew Pak urged Seeborg to set any potential sanction for non-compliance with the warrant well above the $10,000 per day threshold Google pitched. “Google is a profit-driven company and its behavior is going to be altered by something that’s actually going to affect its bottom line,” said Pak, noting the $600 billion market cap of Google’s parent company, Alphabet Inc. “We don’t even know that everything they were supposed to preserve was actually preserved and that’s a huge problem.”

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Ross Todd

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at rtodd@alm.com. On Twitter: @Ross_Todd.

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