Judge Ware OKs Immediate Appeal of Street View ECPA Ruling — In re Google Inc. Street View Electronic Communications Litigation
[Post by Venkat Balasubramani]
In re Google Inc. Street View Electronic Communications Litigation, 2011 WL 2571632 (N.D. Cal. July 18, 2011) (Order granting Google’s request to certify and staying case) [pdf]
Judge Ware recently denied Google’s request to avail itself of the “Readily Accessible to the General Public” ECPA defense in the Street View litigation. Judge Ware’s ruling acknowledged that it was a novel issue, and both Eric and I expressed surprise at the ruling. (See “Judge Ware: Google Not Entitled to “Readily Accessible to the General Public” Defense in Street View Class Action.”)
Google sought an interlocutory appeal because of the issue’s novelty, the importance to the litigation’s outcome, and the possibility that reasonable judges may disagree on the outcome. Judge Ware granted Google’s motion and certified the question for interlocutory appeal.
This means that the lawsuit is stayed at the trial court level while the Ninth Circuit hears the appeal. I’m sure Google wants to get this lawsuit resolved, but it would much rather spend a year in the appeals court than being mired in discovery at the trial court level. Plaintiffs can’t be too happy about this turn in the lawsuit.
What are the chances of success for Google on appeal? It’s anyone’s guess, and Judge Ware’s opinion was thorough and written with an eye to the appeals court, but I can see a judge or two disagreeing with Judge Ware. [If I could predict the outcome of appeals in the Ninth Circuit, I would be doing something a lot more gainful than lawyering and blogging!] EPIC weighed in as amicus in the trial court, and I would expect that there will be others involved as amici in the Ninth Circuit. In any event, this will be a high stakes, fun-to-watch appeal.