Why it matters: On June 1, 2015, Google filed a motion in the Southern District of New York seeking to compel Fox, NBC and Viacom to comply with third-party subpoenas it had served on them in connection with litigation alleging speech suppression and retaliation that Google had brought against Mississippi Attorney General Jim Hood in the Southern District of Mississippi in 2014. The studios filed a motion in opposition on June 15, 2015, primarily claiming that the documents sought by the subpoena were irrelevant to the underlying litigation, but before any ruling on the matter the case was transferred to the Southern District of Mississippi for resolution—a hearing is currently scheduled for October 16 , 2015 before District Court Judge Henry Wingate, the judge overseeing the Google-Hood litigation.
Detailed discussion: On June 1, 2015, Google, Inc. filed a motion in the Southern District of New York against Twenty-First Century Fox, Inc., NBCUniversal Media, LLC and Viacom, Inc. seeking to compel them to comply with third-party subpoenas issued in connection with litigation it had brought in the Southern District of Mississippi in 2014 against Mississippi Attorney General Jim Hood. To briefly recap the facts of Google's underlying case against AG Hood (as set forth in Google's motion to compel): On December 19, 2014, Google filed a Complaint for Declaratory and Injunctive Relief in the Southern District of Mississippi against AG Hood alleging, among other things, that AG Hood had "violated Google's rights under the First, Fourth, and Fourteenth Amendments by pursuing a retaliatory and overbroad investigation aimed at silencing Google's protected speech and the speech of others." Google had filed its complaint after AG Hood had served it with a 79-page Civil Investigative Demand (CID), which followed his two-year effort to get Google to remove "objectionable" content (such as content encouraging sales of illegal drugs and pornography) from its search engine, YouTube and its other online services. On March 2, 2015, Judge Henry Wingate of the Southern District of Mississippi issued a preliminary injunction against AG Hood, concluding that there "was 'compelling evidence' that the Attorney General's CID was issued in 'bad faith' with retaliatory intent and that there is a 'substantial likelihood' that Google will prevail on its claims that the Attorney General was violating Google's First and Fourth Amendment rights." Judge Wingate therefore enjoined AG Hood from enforcing the CID or taking any further action against Google pending a final decision on Google's "substantially meritorious" claims. The judge also set an expedited case schedule and limited time for discovery.
This is where Fox, NBC and Viacom come in. Although not parties to its lawsuit with AG Hood, Google claimed in its June 1 motion to compel that "the architects of [AG Hood's] campaign against Google appear to be interested parties that have spent years pursuing an anti-Google agenda," including Fox, NBC and Viacom. The impetus for this claim was a December 16, 2014 article in The New York Times reporting that documents obtained by the newspaper (including some obtained through the Sony hack) disclosed that "lobbyists for Viacom, Fox, and NBC and others had been engaged in an extensive and secret anti-Google campaign with state attorneys general" as they sought to halt the distribution of pirated content online. Other press reports followed. Google cited to all of the articles to support its claims that, following the defeat of the "Stop the Online Piracy Act" legislation in 2012, Fox, NBC and Viacom, among others, began to "aggressively lobby" state attorneys general to go after Google for what they claimed was "Google's indulgence of copyright infringement." According to Google, these lobbying efforts were "funneled through various entities, most notably the Motion Picture Association of America ('MPAA')," of which Fox, NBC and Viacom are members, but also the Digital Citizens Alliance (which Google described as a "supposed consumer rights organization heavily funded by the MPAA") and lobbyists at Jenner & Block. Google claimed that "these and other parties formed a large 'AG Working Group'" that became very influential with the state attorneys general, particularly AG Hood. Press reports uncovered documents allegedly revealing that the AG Working Group "formulated a list of demands to be sent to Google by AG Hood …, actually wrote letters to Google that AG Hood sent, dictated the timing of his investigative escalations, tried to recruit other government officials to support him, and even prepared the 79-page CID at the center of the case."
Given all of this, Google claimed that it had issued "narrowly drawn" third-party subpoenas to Fox, NBC and Viacom "for information about behind-the-scenes maneuvering that fomented AG Hood's violations of Google's Constitutional and federal rights," including email and other communications that are "directly related to AG Hood's actions against Google." Google claimed that it filed the motion to compel because, to date, Fox, NBC and Viacom supposedly had "produced nothing," delayed delivery on the "few documents" they had agreed to produce and lodged "meritless" relevance and privilege claims as to the others.
On June 15, 2015, Fox, Viacom and NBC filed a motion in the Southern District of New York opposing Google's motion to compel. In it they identified themselves as "well-known media companies in the business of creating and distributing motion pictures and television shows." As such, in order to protect their investments, they admittedly "engage in a wide range of measures to curb rampant online piracy, including, among other things, issuing takedown notices to remove infringing material, initiating civil litigation around the world to enforce copyrights and obtain injunctive relief, working cooperatively and in good faith with Internet service providers, advertisers, payment processors and others to make piracy less attractive, and petitioning government officials, including law enforcement agencies, to investigate and bring civil and criminal enforcement actions related to conduct that affects their copyrighted works." With respect to Google specifically, these measures included sending "millions of takedown requests each month asking Google to remove links to infringing content from its search engine" and "exercis[ing] their rights to petition government officials regarding Google's role in facilitating and profiting from the piracy of their content." The studios argued that, to the extent that "Google paints itself as the victim of these efforts, the opposite is true." In fact, they argued, Google was the aggressor through its "unnecessary and overbroad" third-party subpoenas and motions to compel, seeking to drag Fox, Viacom and NBC as well as other content providers into the lawsuit with AG Hood—forcing them to expend time and manpower in costly discovery—and chill their exercise of the "protected First Amendment activity" of asking law enforcement officials for assistance in their piracy battle. Moreover, they argued that the sought-after documents were irrelevant to the underlying litigation with AG Hood, which principally involved questions of law (such as whether the suit is preempted by the Digital Millennium Copyright Act or other federal laws), and that even Judge Wingate questioned their relevance during the preliminary injunction proceedings, pointing out that although "'Google constantly has stated in its papers that [AG Hood's investigation] seems to have been pushed by the Hollywood industry,' the Court could not 'think of why it would be germane to a ruling by the court.'"
Much additional legal wrangling ensued, but on August 1, 2015, the Southern District of New York granted Google's motion to transfer (filed on June 4, shortly after the filing of the motion to compel) to the Southern District of Mississippi for resolution. In parallel proceedings, Google had filed a motion to compel on June 1, 2015 in the District of Columbia in connection with third-party subpoenas it had served on the MPAA, Jenner & Block and the Digital Citizens Alliance; those parties filed a motion in opposition on June 15, 2015, and, before any rulings, Google's motion to transfer those proceedings to the Southern District of Mississippi was similarly granted on August 3, 2015. As of yet, Judge Wingate has not ruled on any of the motions to compel—the hearing is currently scheduled for October 16, 2015.
Click here to read Google's 6/1/15 "Memorandum of Law in Support of Google Inc.'s Rule 45 Motion to Compel Compliance with Subpoena" in the case of Google Inc. v. Twenty-First Century Fox, Inc., NBCUnivesral Media, Inc. and Viacom, Inc. (S.D.N.Y. case closed, transferred to S.D. Miss.).
Click here to read the 6/15/15 "Memorandum of Law in Opposition to Google Inc.'s Rule 45 Motion to Compel Compliance with Subpoena" in the case of Google Inc. v. Twenty-First Century Fox, Inc., NBCUniveral Media, Inc. and Viacom, Inc. (S.D.N.Y. case closed, transferred to S.D. Miss.)