Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 1 of 27
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`
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`WILLKIE FARR & GALLAGHER LLP
`BENEDICT Y. HUR (SBN: 224018)
`bhur@willkie.com
`SIMONA AGNOLUCCI (SBN: 246943)
`sagnolucci@willkie.com
`EDUARDO E. SANTACANA (SBN: 281668)
`esantacana@willkie.com
`LORI C. ARAKAKI (SBN: 315119)
`larakaki@willkie.com
`ARGEMIRA FLOREZ (SBN: 331153 )
`aflorez@willkie.com
`HARRIS MATEEN (SBN: 335593)
`hmatten@willkie.com
`One Front Street, 34th Floor
`San Francisco, CA 94111
`Telephone: (415) 858-7400
`Facsimile: (415) 858-7599
`
`Attorneys for Defendant
`GOOGLE LLC
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`ANIBAL RODRIGUEZ, et al. individually and
`on behalf of all others similarly situated,
`Plaintiff,
`
`vs.
`GOOGLE LLC,
`
`Defendant.
`
`
`
`
`
`
` Case No. 3:20-CV-04688-RS
`
`DEFENDANT GOOGLE LLC’S
`OPPOSITION TO PLAINTIFFS’
`MOTION FOR LEAVE TO FILE A
`FOURTH AMENDED COMPLAINT
`
`The Honorable Richard Seeborg
`Date: December 8, 2022
`Time: 1:30 p.m.
`Place: Courtroom 3 - 17th Floor
`
`Action Filed:
`Trial Date:
`
`
`July 14, 2020
`Not Yet Set
`
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`GOOGLE’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT
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`Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 2 of 27
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`TABLE OF CONTENTS
`
`Page(s)
`INTRODUCTION .........................................................................................................1 
`RELEVANT BACKGROUND AND PROCEDURAL HISTORY..............................3 
`This case has always been about app measurement data sent by third-party
`A. 
`apps to Google. ..................................................................................................3 
`Plaintiffs’ initial complaint accused Google’s software for third-party
`1. 
`app developers. ......................................................................................3 
`Plaintiffs’ First Amended Complaint did not change their fundamental
`allegations about third-party apps. .........................................................3 
`Plaintiffs’ Second Amended Complaint advanced a similar theory
`about third-party apps. ...........................................................................4 
`Plaintiffs’ Third Amended Complaint was more of the same. ..............5 
`4. 
`There has been extensive discovery and motion practice based on the factual
`allegations in the Second and Third Amended Complaints. ..............................6 
`Plaintiffs propose to modify classes and add a new Google Search Class. .......7 
`C. 
`III.  LEGAL STANDARD ....................................................................................................8 
`IV.  ARGUMENT .................................................................................................................9 
`Plaintiffs’ proposed amendment to the Class 1 and 2 definitions includes one
`A. 
`word the Court should strike. .............................................................................9 
`Plaintiffs’ proposed amendment to add a Google Search Class and a Search-
`Related legal theory should be denied. ............................................................10 
`1. 
`Google will be prejudiced if Plaintiffs are allowed leave to amend. ...10 
`2. 
`Plaintiffs’ counsel have always known that Google uses anonymized
`Search data for product improvement purposes, but inexcusably
`delayed in suing over it until now. .......................................................16 
`The Other Foman Factors Including Bad Faith, Futility, and Number
`of Amendments Each Support Denying Plaintiff’s Motion .................19 
`CONCLUSION ............................................................................................................22 
`
`B. 
`
`B. 
`
`2. 
`
`3. 
`
`3. 
`
`I. 
`II. 
`
`V. 
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`Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 3 of 27
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Aguilar v. Boulder Brands, Inc.,
`2014 WL 4352169 (S.D. Cal. Sept. 2, 2014) ...........................................................................13
`
`AmerisourceBergen Corp. v. Dialysist W., Inc.,
`465 F.3d 946 (9th Cir. 2006) .............................................................................................16, 17
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................9
`
`Briseno v. ConAgra Foods, Inc.,
`844 F.3d 1121 (9th Cir. 2017) .................................................................................................10
`
`Brown v. Google LLC,
`2022 WL 2289057 (N.D. Cal. Mar. 18, 2022) ...................................................................12, 13
`
`California v. Neville Chem. Co.,
`358 F.3d 661 (9th Cir. 2004) ...................................................................................................21
`
`Callan v. Amdahl Corp.,
`1995 WL 261420 (N.D. Cal. Apr. 24, 1995) ...........................................................................12
`
`Circle Click Media LLC v. Regus Mgmt. Grp. LLC,
`2016 WL 5869758 ...................................................................................................................20
`
`City of L.A. v. San Pedro Boat Works,
`635 F.3d 440 (9th Cir. 2011) .....................................................................................................8
`
`Dep’t of Fair Emp. & Hous. v. L. Sch. Admission Council, Inc.,
`2013 WL 485830 (N.D. Cal. Feb. 6, 2013) .............................................................................10
`
`Eminence Capital, LLC v. Aspeon, Inc.,
`316 F.3d 1048 (9th Cir. 2003) .................................................................................................10
`
`Foman v. Davis,
`371 U.S. 178 (1962) ...................................................................................................2, 8, 10, 19
`
`Hightower v. City & Cty. of San Francisco,
`2015 WL 926541 (N.D. Cal. Mar. 3, 2015) .............................................................................12
`
`Jackson v. Bank of Hawaii,
`902 F.2d 1385 (9th Cir. 1990) .................................................................................8, 10, 12, 16
`
`Jackson v. Laureate, Inc.,
`186 F.R.D. 605 (E.D. Cal. 1999) .............................................................................................22
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`
`
`TABLE OF AUTHORITIES (CONTINUED)
`
` Page(s)
`
`Johnson v. Buckley,
`356 F.3d 1067 (9th Cir. 2004) ...................................................................................................8
`
`Johnson v. Mammoth Recreations, Inc.,
`975 F.2d 604 (9th Cir. 1992) .....................................................................................................8
`
`Jordan v. Los Angeles Cty.,
`669 F.2d 1311 (9th Cir.) ..........................................................................................................16
`
`Kittel v. City of Oxnard,
`2018 WL 6004522 (C.D. Cal. July 9, 2018) ..............................................................................8
`
`Koch v. Koch Indus.,
`127 F.R.D. 206 (D. Kan. 1989)................................................................................................19
`
`Lockheed Martin Corp. v. Network Sols., Inc.,
`194 F.3d 980 (9th Cir. 1999) ...................................................................................................11
`
`McCabe v. Six Continents Hotels, Inc.,
`2013 WL 12306494 (N.D. Cal. Oct. 10, 2013)........................................................................13
`
`McGlinchy v. Shell Chem. Co.,
`845 F.2d 802 (9th Cir. 1988) ...................................................................................................16
`
`Menendez-Gonzalez v. Kelly,
`2017 WL 11632799 (C.D. Cal. Mar. 22, 2017) .......................................................................19
`
`Moore v. Kayport Package Exp., Inc.,
`885 F.2d 531 ............................................................................................................................21
`
`Muench Photography, Inc. v. Pearson Educ., Inc.,
`2013 WL 4426493 (N.D. Cal. Aug. 15, 2013) ........................................................................11
`
`Nunes v. Ashcroft,
`348 F.3d 805 (9th Cir. 2004) ...................................................................................................10
`
`Oracle Am., Inc. v. Hewlett Packard Enter. Co.,
`2017 WL 3149297 (N.D. Cal. July 25, 2017) ..........................................................................13
`
`Pinterest, Inc. v. Pintrips, Inc.,
`2014 WL 12611300 (N.D. Cal. Aug. 26, 2014) ......................................................................15
`
`Platt Elec. Supply, Inc. v. EOFF Elec., Inc.,
`522 F.3d 1049 (9th Cir. 2008) .................................................................................................21
`
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`
`TABLE OF AUTHORITIES (CONTINUED)
`
` Page(s)
`
`Risher v. Adecco Inc.,
`2021 WL 9182421 (N.D. Cal. Sept. 17, 2021) ........................................................................13
`
`Sisseton-Wahpeton Sioux Tribe of Lake Traverse Indian Reservation v. United
`States,
`90 F.3d 351 (9th Cir. 1996) ...............................................................................................10, 22
`
`Solomon v. N. Am. Life & Cas. Ins. Co.,
`151 F.3d 1132 (9th Cir. 1998) .................................................................................................12
`
`Stambanis v. TBWA Worldwide, Inc.,
`2020 WL 4060171 (C.D. Cal. July 20, 2020) ....................................................................11, 15
`
`Synchronoss Techs., Inc. v. Dropbox Inc.,
`2019 WL 95927 (N.D. Cal. Jan. 3, 2019) ................................................................................13
`
`United Ass’n of Journeyman & Apprentices of the Plumbing & Pipe Fitting Indus.,
`Underground Util./Landscape Loc. Union No. 355 v. Maniglia Landscape, Inc.,
`2019 WL 7877822 (N.D. Cal. July 22, 2019) ..........................................................................20
`
`Wash. St. Repub. Party v. Wash. St. Grange,
`676 F. 3d 784 (9th Cir. 2012) ....................................................................................................8
`
`Wheeler v. Estee Lauder Companies, Inc.,
`2013 WL 12121543 (C.D. Cal. Feb. 12, 2013)........................................................................10
`
`Zivkovic v. S. Cal. Edison Co.,
`302 F.3d 1080 (9th Cir. 2002) .................................................................................................12
`
`Other Authorities
`
`Fed. R. Civ. P. 15(a) ............................................................................................................. passim
`
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`Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 6 of 27
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`I.
`
`INTRODUCTION
`A complaint is not a moving target. It crystallizes the claims of wrongdoing so the parties
`can investigate and resolve genuine disputes fairly. Litigation is not intended to allow parties to
`peek behind the curtain of a complex organization, taking advantage of liberal discovery rules to
`take shots in the dark hoping to find something sensitive around which to build new and yet more
`new cases. For the last 28 months, the Court and Google have been along for the ride on just such
`a shifting-sands approach to litigation which Plaintiffs have driven. When factual dead ends are
`presented, Plaintiffs recast their claims. And even still, the Court winnowed this case to two
`claims and one factual theory. This latest request to amend, which came on the business day
`before the close of discovery, seeks to upend that winnowing again. The Court should deny it.
`Plaintiffs have already amended their complaint three times. Each time their legal theories
`shifted and metastasized, but the key factual allegations remained fundamentally the same. Since
`Plaintiffs filed their initial complaint in July 2020, this case has been about app measurement data
`sent to Google by third-party mobile app developers. Initially, Plaintiffs claimed Google caused
`that data to be sent to it with “secret scripts” in source code surreptitiously running in the
`background of its Firebase Software Development Kit. After the Court dismissed that factual
`theory, Plaintiffs resorted to their theory that while GA for Firebase’s functionality was publicly
`disclosed, it was still wrongful. This involved several about-faces concerning their theory of
`simultaneity of app data transmission, which Plaintiffs dismissed as “typographical errors.” This
`Court rejected those artful pleading tactics as “not well taken,” leaving Plaintiffs with claims for
`violation of California’s Comprehensive Computer Data Access and Fraud Act and common law
`invasion of privacy. Each of those claims is premised on the same factual theory concerning
`Google’s receipt of data through GA for Firebase or through products with GA for Firebase
`integrations (AdMob and Cloud Messaging).
`Now, with discovery closed, and with judgment day approaching, Plaintiffs are seemingly
`unhappy with their chances of succeeding on the merits. They’ve advanced this Motion seeking to
`amend their complaint in two primary ways—one concerning their existing allegations, and one
`
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`adding an entirely new, never-before-mentioned factual theory. Plaintiffs take great pains to
`conflate the two categories of amendments and present them as requiring the “same analysis.”
`Mot. at 21. That is false: one is largely permissible; one is not.
`First, Plaintiffs seek to revise their existing class definitions concerning third-party,
`non-Google apps that use Google’s Firebase or AdMob SDKs, and to add related facts. The Court
`should strike one word in Plaintiffs’ proposed class definition—the term “including,” in the phrase
`“Google tracking or advertising code, including Firebase SDK and AdMob SDKs”—because it
`fails to specify what Google code is implicated apart from the two identified SDKs. Worse than a
`moving target, this is not a target at all. The definition is fatally overbroad and unconstitutionally
`vague.
`Second, Plaintiffs seek leave to add an entirely new factual theory and class of named
`plaintiffs based on Google’s first-party Search product. This is no ordinary request for leave to
`make ministerial updates to the complaint. As Plaintiffs concede, their proposed amendment to
`graft Google Search into this case would “both change the scope of the case and the scope of
`Google’s liability.” Mot. at 22. And Plaintiffs admit they will seek additional discovery.
`Tellingly, Plaintiffs do not specify any numeric or temporal limits to the discovery they seek, nor
`identify how they will topically “target[]” their additional discovery requests. Id. The need for
`additional discovery—which will require extending the case schedule since fact discovery closed
`on October 31, 2022—is a textbook example of the prejudice sufficient to deny leave to amend.
`Plaintiffs’ Motion ignores the substantial body of case law in which courts reject requests
`like this one. See infra at pp. 10–12. Under Federal Rule of Civil Procedure 15(a), courts
`consider whether to grant leave to amend by considering five factors: prejudice, delay, bad faith,
`futility, and number of prior amendments. Foman v. Davis, 371 U.S. 178, 182 (1962). Each one
`here supports rejecting Plaintiffs’ request to amend, including prejudice, which is the most
`important factor. The Court should deny Plaintiffs’ Motion.
`
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`Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 8 of 27
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`II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY1
`For the last two years, the parties have been litigating about how a particular product
`(Google Analytics for Firebase and its integrations with AdMob and Cloud Messaging)2 used by
`third-party app developers (e.g., the New York Times) sends app measurement data to Google for
`analysis. Plaintiffs alleged this data flow was improper if a user’s Web & App Activity” setting
`(WAA) is toggled off.
`For years, the parties have made strategic choices based on those key allegations. Google
`has expended significant resources investigating and litigating Plaintiffs’ theories, and this Court
`has expended judicial resources, too. Fact discovery is now closed (11 months after initially
`scheduled), and Plaintiffs seek leave to amend their claims and to reopen discovery for an
`unspecified amount of additional information and time.
`A.
`This case has always been about app measurement data sent by third-party
`apps to Google.
`
`1.
`
`Plaintiffs’ initial complaint accused Google’s software for third-party app
`developers.
`
`This case started 28 months ago, on July 14, 2020. Plaintiffs began with a theory that
`Google “tracks and compiles” user communications “by covertly integrating Google’s tracking
`software” into app developer products. Dkt. 1 (Compl.), ¶ 7. Plaintiffs alleged that Google
`“accomplishes this surreptitious and unlawful interception, tracking, and data collection of users’
`app activity through its Firebase SDK.” Compl. ¶ 8. When Google moved to dismiss (Dkt. 48),
`Plaintiffs decided not to oppose and instead sought to amend their allegations. Google stipulated
`to the amendment. Dkt. 58 (Stip.).
`2.
`Plaintiffs’ First Amended Complaint did not change their fundamental
`allegations about third-party apps.
`
`Plaintiffs filed their First Amended Complaint (“FAC”) on November 11, 2020. Dkt. 60.
`It was full of irrelevant information and prolix charges, nearly doubling the length of the initial
`
`1 Unless otherwise noted, all internal quotation marks and citations have been omitted.
`2 AdMob has been integrated with Firebase during the Class Period. AdMob+ is an upgraded
`version of AdMob also known as Google Ads SDK.
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`Case 3:20-cv-04688-RS Document 268 Filed 11/14/22 Page 9 of 27
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`complaint to 78 pages. Plaintiffs added two new claims for UCL violations and common law
`intrusion upon seclusion. But their fundamental factual theory and allegations did not change.
`Google moved to dismiss again. Dkt. 62
`On May 21, 2021, the Court issued its order granting Google’s motion to dismiss in part.
`As the Court determined, Plaintiffs’ claims arise from two theories of liability—one concerned
`“Firebase’s disclosed functionality” through which Google receives data “on behalf of [third-
`party] app developers who knowingly utilize that service”; and the other concerning “Firebase’s
`undisclosed functionality” that purportedly “hides ‘secret scripts’ . . . throughout the Firebase
`toolkit” unbeknownst to developers and users alike. Dkt. 109 at 6. The Court dismissed
`Plaintiffs’ “secret scripts” theory, holding that it is “woefully underdeveloped,” “and has no
`bearing on the claim-specific analysis.” Id. at 12. In addition, the Court dismissed Plaintiffs’
`Wiretap Act claim based on the existence of developer consent, and the UCL claim for lack of
`standing. Id. at 12, 17. The Court also dismissed Plaintiffs’ CIPA section 632 claim because
`Plaintiffs failed to plead unique, definite circumstances rebutting the “presumption that [i]nternet
`communications do not reasonably give rise to [an] expectation” that the conversation is not being
`recorded. Id. at 13–14. The Court granted Plaintiffs leave to amend. Id. at 14.
`3.
`Plaintiffs’ Second Amended Complaint advanced a similar theory about
`third-party apps.
`
`Plaintiffs filed their Second Amended Complaint (“SAC”) 17 months ago on June 11,
`2021. Dkt. 113. With that amendment, Plaintiffs abandoned their Wiretap Act, UCL, CIPA
`section 632, and “secret scripts” claims, and replaced those with a breach of contract claim.
`See SAC, Dkt. 113, ¶¶ 236–49. Their fundamental factual theory that third-party apps send data
`to Google via Firebase did not change. None of the three principal differences between the FAC
`and SAC3 altered Plaintiffs’ factual theory. With their CIPA section 631 theory, however,
`
`
`3 Google identified three changes between Plaintiffs’ FAC and SAC in its motion to dismiss. See
`Dkt. 115 at 4. First, Plaintiffs abandoned the phrase “secret scripts.” Id. Second, Plaintiffs added
`stray references to “AdMob and Cloud Messaging for Firebase” at three points where they had
`also alleged that GA for Firebase sends data to Google through a “backdoor[]” in Firebase SDK.
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`Plaintiffs attempted to end-run the Court’s dismissal of their CIPA section 632 and secret scripts
`theory. They tried to salvage those claims by averring that Google’s recording of app
`measurement data was sequential following transmission, rather than a simultaneous interception
`of communications. Google moved to dismiss. Dkt. 115. And Plaintiffs backtracked, trying to
`pass “this artful addition to the pleadings off as some sort of typographical error” that the Court
`held was “not well taken.” Dkt. 127 at 7 (Order on SAC).
`On August 18, 2021, the Court issued its order granting Google’s motion to dismiss the
`SAC in part and denying in part. The Court dismissed Plaintiffs’ breach of contract claim that was
`premised on Google’s Privacy Policy and WAA Help page. Dkt. 127 at 4–7. The Court found the
`CIPA section 631 claim “likewise deficient” and rejected Plaintiffs’ claim that their shifting
`theory and factual allegations was a “typographical error.” Id. Although Plaintiffs had only
`referenced AdMob and Firebase Cloud Messaging (FCM) in three passing references, the Court
`allowed the addition of those products “as vehicles for Google’s supposed misconduct,” even
`though that would expand the scope of discovery over a year into litigation. Id. at 3, 7–8. The
`Court also generously allowed Plaintiffs leeway to amend their two dismissed claims, but in light
`of Plaintiffs’ repeated about-faces with their CIPA claim, the Court cautioned Plaintiffs “to
`[amend] in a manner strictly honoring the duty to litigate in good faith.” Id. at 8.
`4.
`Plaintiffs’ Third Amended Complaint was more of the same.
`
`Plaintiffs filed their Third Amended Complaint (“TAC”) on September 1, 2021. Dkt. 131.
`The TAC sought “to revitalize the[] breach of contract claim by arguing it was a unilateral
`contract” “created by Google’s provision of [the WAA] button to adjust privacy settings,” and
`alternatively a quasi-contract. Dkt. 209 (Order on TAC) at 1. The TAC also attempted to revive
`Plaintiffs’ CIPA claim (which can carry statutory penalties) by reversing course yet again and
`“revert[ing] to averring Google simultaneously intercepts [user] data in transit.” Id. at 2. That
`
`
`Id. Third, Plaintiffs identified the user’s “device” as the agent doing the intercepting rather than
`“secret scripts” or “apps” generally. Id.
`
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`claim was dead on arrival, and no amount of artful pleading, re-pleading, and purported
`“typographical errors” could save it.
`In its January 25, 2022 Order, the Court rejected both theories and dismissed the contract
`and CIPA claims for a final time. Id. at 4–6. Because Plaintiffs had by then “been afforded
`several opportunities to amend and ha[d] failed to do so successfully,” this Court held “further
`leave to amend wa[s] not warranted.” Id. at 7 (citing AmerisourceBergen Corp. v. Dialysist W.,
`Inc., 465 F.3d 946, 951 (9th Cir. 2006)). Google answered. Dkt. 230.
`B.
`There has been extensive discovery and motion practice based on the factual
`allegations in the Second and Third Amended Complaints.
`
`Plaintiffs have never before accused Google’s first-party Google Search product. Both
`parties and the Court have been proceeding based on the factual theories first alleged over two
`years ago. Google has exhaustively investigated those factual theories and the products Plaintiffs
`identified, specifically: GA for Firebase and its integration with AdMob and Firebase Cloud
`Messaging. Google conducted countless interviews of engineers and product managers on each of
`those teams, along with those involved with the Google Account WAA setting, to understand the
`products’ functionality, the data Google receives, how it receives the data, where the data goes,
`and how it’s used.
`Google also responded to 285 RFPs and produced tens of thousands of documents based
`on Plaintiffs’ theories, all after months-long negotiation and litigation concerning custodians and
`search terms. Plaintiffs obtained 19 additional custodians from the Court over Google’s objection,
`which brought the total to 24 ESI custodians. Dkt. 184. None has responsibility for Google
`Search. Google agreed to employ hundreds of search terms and Plaintiffs obtained hundreds more
`from the Court. Dkt. 238. None concerns Search, either.
`Google answered 25 written interrogatories and 52 RFAs, including laying out for
`Plaintiffs in painstaking detail the data flow for the app measurement data Google receives
`through GA for Firebase (Response to Interrogatory No. 1). Those answers did not include any
`information on Search or data Google receives through Search. And Plaintiffs are at their Rule 33
`
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` GOOGLE’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT
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`limit on interrogatories, meaning they cannot serve more without Google’s agreement or leave of
`Court. Fed. R. Civ. P. 33(a)(1).
`Google crafted its investigation, litigation, and discovery strategy based on the allegations
`in Plaintiffs’ operative complaint. Indeed, just six months ago, on April 29, 2022, Plaintiffs
`conceded that web activity is not a part of this case. Plaintiffs told the Court that while there may
`be “irrelevant documents about web activity,” Google should manually “disentangle the two types
`of data,” app and web, “in its responsiveness review.” Dkt. 233 at 2. Google has undertaken that
`manual, time-consuming, and costly approach.
`By the time the Court hears this motion, Google will also have made eleven different
`people available for deposition, and Plaintiffs will have no more depositions left to take under
`Rule 30. See Fed. R. Civ. P. 30(a)(2). Those depositions included four different corporate
`designees who spent weeks preparing to testify about 31 of Plaintiffs’ detailed Rule 30(b)(6)
`topics. None of those topics concerned Search, either.
`C.
`Plaintiffs propose to modify classes and add a new Google Search Class.
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`On the business day before the close of discovery, Plaintiffs filed this Motion for Leave to
`Amend. Dkt. 258 (“Mot.”). Plaintiffs seek to make two categories of amendments. First,
`Plaintiffs propose to amend Classes 1 and 2 to “clarify that these classes include users who had
`WAA ‘on’ but ‘sWAA off.’” Mot. at 11. Plaintiffs also seek to include an unspecified set of
`“Google tracking or advertising code” within the ambit of the class definition. Id. Second,
`Plaintiffs seek to “add an additional class, focused on Search.” Id. at 12.
`Plaintiffs concede the two categories of amendments are “differen[t]” because they do not
`plan to seek new discovery for the amendments to Classes 1 and 2, but they “will need to serve
`new discovery” for Google Search. Id. at 4. Nowhere in their Motion do Plaintiffs commit to any
`limits on that “new discovery.”
`Discovery is closed. So is the briefing period for motions to compel. And by the time the
`Court considers this Motion, all the trailing discovery including the remaining two depositions the
`parties were unable to schedule in October 2022, supplemental privilege log review and related
`productions (for documents Google has agreed to produce as of the date of this filing), and
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`briefing of motions to compel will be completed. Plaintiff’s expert reports are due January 20,
`2023, with rebuttal reports due May 1, 2023, and expert discovery set to close June 2, 2023,
`followed by class certification in Summer 2023. Dkt. 246 (Scheduling Order). In a co-pending
`motion, Plaintiffs have also sought to extend the fact discovery period based on their existing
`requests, but claim the schedule extension is not intended to support their new allegations.
`Dkt. 255 at 3 n.1. As Google explained in its opposition, that motion is meritless. See Dkt. 265.
`
`III. LEGAL STANDARD
`Under Federal Rule of Civil Procedure 15(a), a party may amend pleadings before trial
`“when justice so requires.” Fed. R. Civ. P. 15(a)(2). While leave to amend is liberally granted, it
`is not automatic. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).
`Under Rule 15(a), “a district court may exercise its discretion to deny leave to amend due
`to undue delay, bad faith or dilatory motive on part of the movant, . . . undue prejudice to the
`opposing party . . ., [or] futility of amendment.” Wash. St. Repub. Party v. Wash. St. Grange, 676
`F. 3d 784, 797 (9th Cir. 2012) (citing Foman, 371 U.S. at 182); see also Johnson v. Buckley, 356
`F.3d 1067, 1077 (9th Cir. 2004). If these factors counsel against allowing the plaintiffs to amend
`the complaint, the court has discretion to foreclose amendment. See Foman, 371 U.S. at 182. The
`court’s “discretion to deny leave to amend is particularly broad where plaintiff has previously
`amended the complaint.” City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir.
`2011). And where, as here, “considerable time has passed between the filing of the original
`pleading and the motion to amend,” the movant must also “show some valid reason for the delay.”
`Kittel v. City of Oxnard, 2018 WL 6004522, at *4 (C.D. Cal. July 9, 2018). In some cases, courts
`apply the more rigid “good cause” standard of Rule 16(b) where the scheduling order has expired.
`That standard “primarily considers the diligence of the party seeking the amendment.” Johnson v.
`Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
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` GOOGLE’S OPPOSITION TO PLAINTIFFS’ MOT