Case 3:14-cv-00981-HTW-LRA Document 211 Filed 02/19/16 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
GOOGLE INC.
v.

PLAINTIFF
Civil Action No. 3:14-cv-981-HTW-LRA

JIM HOOD, in his official capacity

as Attorney General of the State of
Mississippi

DEFENDANT

ATTORNEY GENERAL JIM HOODS MEMORANDUM OF LAW IN

SUPPORT OF MOTION FOR PROTECTIVE ORDER WITH RESPECT TO
NOTICE OF RULE 30(B)(6) DEPOSITION OF THE ATTORNEY GENERALS OFFICE
Pursuant to FED. R. CIV. P. Rules 26(c), JIM HOOD, in his official capacity as Attorney
General of the State of Mississippi (Attorney General or General Hood or Office), moves
for a protective order as to the noticed 30(b)(6) deposition of the Attorney Generals office filed
and served on February 2, 2016, (Dkt. # 209) and would show the Court as follows:
INTRODUCTION
This case involves Googles attempt to obtain a broad, sweeping injunction, and
declaratory judgment against Attorney General Jim Hood, the chief law enforcement officer of
the State of Mississippi, without having to substantiate the allegations in its Complaint about
third-party content, Googles lack of display of its own content, or whether its services perform
editorial functions. Importantly, Google accuses General Hood of using a subpoena in bad faith
due solely to Googles claim that the CID covers protected third-party content. The Attorney
General in this case has repeatedly asserted that the CID only involves content that (1) Google
participated in creating, thereby removing it from the definition of protected content or (2)
content that is solely Google content. In addition, the Attorney General has contended that

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Googles services do not fall within the narrow editorial function upon which it seeks protection.
Accordingly, Attorney General Hood has sought discovery to test Googles claim it is merely the
librarian of the internet and that the case thus can only involve mere third-party content. Google
has vigorously opposed an examination of its services and processes that would be necessary for
the Court to examine and test Googles librarian claim.. Indeed, to date, Google has asserted
that the scope of discovery into these areas is off-limits, it has refused to provide this discovery,
and it has sought Court protection and guidance to inform the parties as to the scope of discovery
in this case as it relates to Googles actionswhich will inform the Courts determination in this
case as to what truly is third party content. In addition, Google has refused to provide
discovery and has sought protection in relation to the services at issuewhich the Attorney
General contends are not mere editorial functions. Thus, where Google has accused General
Hood of improper conduct in relation to third-party content and Googles services, Google has
refused to provide discovery as to Googles involvement in or creation of the very content at
issue and Googles actual services, and the parties await this Courts guidance as to the scope of
the discovery going forward.
With this backdrop, Google noticed a 30(b)(6) deposition of the Attorney Generals
office, seeking discovery as to a number of topics involving the offices public statements,
communications with Google and third parties, presentations, interactions with third parties, and
demands of Google. Google alone has limited the scope of discovery in this case and has
unilaterally prevented discovery into certain areas until the Court rules on the scope of discovery.
Ironically, however, the deposition of the Attorney Generals office noticed by Google seeks
testimony related to the very areas upon which Google has challenged the scope of discovery and
refused to provide discovery. Googles stonewalling as to the discovery sought by the Attorney

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General (1) materially affects the preparation of the Attorney Generals office for the deposition
and (2) involves areas of potential questioning which allow Google an unfair advantage in this
case due solely to its refusal to participate fully in discovery and its requests to have discovery
limited. General Hoods counsel requested the deposition be continued to allow the Court the
opportunity to inform the parties as to the full scope of the allowed discovery in this case.
Google refused this request and insisted the deposition go forward despite General Hoods
counsel previously agreeing to allow this Court to determine the scope of discovery before
moving forward with General Hoods noticed depositions of Google.
It is undeniable that what is at issue in this caseas it relates to discovery of third-party
content and Googles servicesis controverted and currently before the Court in the form of
pending an number of prior motions. First, Google contends this case is limited to third-party
content without the necessity for discovery into what that content is or how it is made. The
Attorney General disagrees, and the parties positions are before the Court. Second, Google
contends discovery into its services is off-limits. The Attorney General disagrees, and the
parties positions are before the Court. Googles claim that it is merely the librarian of the
internet is the central issue in this case, and Google has refused to participate in discovery
concerning this claim.
Accordingly, the effect of the current deposition notice, if allowed to go forward, would
allow Google an opportunity to develop its case under its restrictive application of discovery as
to its own conduct but with no restrictions as to the Attorney Generals actions in relation to the
two material aspects of the case: (1) third-party content and its creation and (2) Googles
services.

Without giving the Attorney Generals office the ability to rebut that restriction

through preparation and testimony of an actual party to this case, unfairly prejudices the

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Attorney General. Because Google has made the scope of discovery an issue in this case, its
actions in refusing to provide discovery and seeking guidance from the Court materially impacts
the preparation of General Hood for the noticed 30(b)(6) deposition and the proposed areas of
examination, and General Hood and his counsel will be disadvantaged without either the Courts
guidance or discovery from Google. Accordingly, General Hood respectfully moves pursuant to
Rule 26(c)(1) for a protective order that:

26(c)(1)(A)forbids the deposition until such time as the Court rules on the scope of
discovery in this case;

26(c)(1)(D)forbids Google from any inquiry into how the Attorney Generals
statements, communications, presentations, intentions, investigations, associations,
and/or actions relate to, investigate, impact, apply to, or were intended to apply to
third-party content; and/or,

26(c)(1)(D)forbids Google from any inquiry into how the Attorney Generals
statements, communications, presentations, intentions, investigations, associations,
and/or actions relate to, investigate, impact, apply to, or were intended to apply to
Googles services.
FACTUAL AND PROCEDURAL BACKGROUND

Google initially noticed the 30(b)(6) deposition of the Attorney Generals office on
December 10, 2015 (Dkt. #195). At the time the deposition was noticed, the discovery deadline
for this case was December 18, 2015, yet the deposition was noticed for January 6, 2016, and,
thus, the deposition was not properly noticed. The discovery deadline is that date by which all
responses to written discovery, including supplementation of responses, required by the Federal
Rules of Civil Procedure must be made and by which all depositions must be concluded.
Supplementation of disclosures must be concluded by the discovery deadline. L.U.Civ.R. 26
(b)(1).
On January 28, 2016, counsel for the parties met and conferred over the telephone to
discuss, among other things, the scope of the proposed 30(b)(6) deposition of the Attorney
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Generals office. During that conference, counsel for the Attorney General informed Google that
it would not be possible to move forward with the deposition prior to receiving a ruling from the
Court as to the scope of the discovery in this case. See Declaration of John W. Kitchens in
Support of Defendant Attorney General Jim Hoods Motion for Protective Order with Respect to
Notice of Rule 30(b)(6) Deposition of the Attorney Generals Office (Kitchens Decl.).
On February 8, 2016, Fred Krutz, Esq., counsel for Google, contacted John Kitchens,
counsel for the Attorney General, to discuss deposition dates for certain third parties. During
this call, Krutz informed Kitchens that Google was going to re-notice the 30(b)(6) deposition of
the Attorney Generals office for February 22, 2016. In addition to being aware of the Attorney
Generals position regarding moving forward with this deposition, Google knew that February
22, 2016, was a date on which counsel for the Attorney General was not available for a
deposition. Krutz had no realistic expectation that the deposition would go forward and even
told Kitchens that Google was providing sufficient notice of its intent to notice the deposition in
order to allow time for the Attorney General to file a motion for a protective order as to the
deposition. See Kitchens decl. Google noticed the deposition on February 10, 2016 (Dkt. #209).
ARGUMENT
It is well established that the scope of discovery is within the sound discretion of the trial
court, and Rule 26(c) allows the Court to issue a protective order after a showing of good cause
to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense. Google has challenged the scope of discovery in this case to limit inquiry into two
areas materially related to the Attorney Generals actions: (1) what is third-party content and (2)
what actions upon content does Google take within its services. Because the answer to both of
these questions also answers whether or not the Attorney Generals conduct is actionable, the
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scope of discovery materially affects (1) the Attorney Generals conduct and (2) how that
conduct relates to (a) purported third-party content or Google content and (b) Googles actions
within its Services related to content.
Currently before the Court are three (3) motions requesting the Court to define the scope
of discovery in this case as to the material questions (1) what is third-party content and (2) what
actions upon content does Google take within its services. Those motions are: (1) Googles
motion for protective order with respect to the Attorney Generals 30(b)(6) depositions of
Google (Dkt. # 128); (2) Attorney Generals motion to compel depositions and production of
documents (Dkt. # 145); and, (3) Attorney Generals motion to compel interrogatory responses
(Dkt. # 182). These matters have been fully briefed and presented to the Court.
While Google has and may contend that the topics at issue in the present notice involve
the Attorney Generals communications, actions, presentations and interactions with others,
these topics represent only one-half of the analysis for this case. None of the Attorney Generals
actions, communications, presentations, interactions with other, or intentions become relevant
unless and until Google establishes that the content at issue is actually third-party content, which
highlights the need to explore Googles unproven, yet forcefully asserted, librarian claim. The
Attorney Generals counsel cannot know what, if any, third-party content is at issue in this case
because (1) no discovery has been provided, (2) Google has not answered the interrogatories
about it, and (3) Google has asked the scope of discovery to be limited. These are the very issues
currently pending before the Court in the aforementioned motions. Accordingly, the Attorney
Generals counsel have no way to prepare for and defend the first half of the analysis in this case
and which Googles counsel will certainly explore, i.e., how do the Attorney Generals
statements, communications, presentations, intentions, investigations, associations, and/or

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actions relate to, investigate, impact, apply to, or were intended to apply to this still undefined
third-party content. Likewise, counsel for the Attorney General are unable to prepare for and
properly defend the deposition.
Further, the Attorney Generals counsel cannot know what, if any, editorial functions
within Googles services are at issue in this case because (1) no discovery has been provided, (2)
Google has not answered the interrogatories about the topic, and (3) Google has asked the scope
to be limited. These issues are also included in the pending motions and the parties require the
Courts guidance on these issues prior to being able to conduct meaningful discovery of either
party. Accordingly, the Attorney Generals counsel have no way to prepare for the first half of
the analysis in this case and the certain questions from Googles counsel: how do the Attorney
Generals statements, communications, presentations, intentions, investigations, associations,
and/or actions relate to, investigate, impact, apply to, or were intended to apply to this still
undefined third-party content.
CONCLUSION
Google has refused to respond or adequately respond to interrogatories, it has refused to
offer witnesses, and it has sought this Courts protection to limit the scope of discovery.
However, now that it seeks a deposition from the Attorney Generals office, Google (1) seeks to
use its unilateral limitations to prejudice the Attorney Generals ability to prepare for and defend
the deposition and (2) seeks to take advantage of that uncertainty as to scope to obtain now what
it may not be able to in the future. Accordingly, at the present and until the Court rules on the
pending matters dealing with the scope of discovery, Googles notice and the deposition sought
amount to annoyance, oppression, or undue burden or expense and a protective order should be
entered pursuant to Rule 26(c).

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Dated this 19th day of February, 2016.

Respectfully submitted,
JIM HOOD, in his official capacity as
Attorney General of the State of Mississippi
s/ John W. Kitchens
John W. Kitchens
John W. Kitchens, (MSB# 101137)
KITCHENS LAW FIRM, P.A.
Post Office Box 799
Crystal Springs, MS 39059-0799
Telephone: 601-892-3067
Facsimile: 601-892-3057
jkitchens@kitchenslaw.net
Douglas T. Miracle (MSB # 9648)
Special Assistant Attorney General
Bridgette W. Wiggins (MSB # 9676)
Special Assistant Attorney General
Krissy Casey Nobile (MSB # 103577)
Special Assistant Attorney General
Alison E. ONeal McMinn (MSB # 101232)
Special Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
Post Office Box 220
Jackson, MS 39205-0220
Telephone: 601-359-5654
F. Jerome Tapley PHV
Hirlye R. (Ryan) Lutz III - PHV
CORY WATSON, PC
2131 Magnolia Avenue South, 2nd Floor
Birmingham, AL 35205
Carolyn G. Anderson PHV
ZIMMERMAN REED LLP
1100 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
carolyn.anderson@zimmreed.com
Attorneys for Defendant Jim Hood

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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of the Court for the United
States District Court for the Southern District of Mississippi by using the Courts CM/ECF
system on February 19, 2016. I further certify that all parties are represented by attorneys who
are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ John W. Kitchens
John W. Kitchens
John W. Kitchens, (MSB # 101137)
Kitchens Law Firm, P.A.
Post Office Box 799
Crystal Springs, MS 39059-0799
Telephone: 601-892-3067
Facsimile: 601-892-3057
jkitchens@kitchenslaw.net