Access Challenge in Gmail Wiretap Case Given Priority

SAN JOSE, Calif. (CN) - A challenge to sealed filings in the massive class action over Gmail privacy will get priority treatment of sorts, a federal judge ruled Friday.

News outlets - including Courthouse News, Gannett, McClatchy and the New York Times - lobbied U.S. District Judge Lucy Koh earlier this week to deny Google's requests to file under seal, citing public interest in the case involving millions of Gmail users. The sprawling class action dubbed In re Google Inc. - Gmail Litigation claims that the tech giant's new privacy policies violate federal computer fraud, eavesdropping and wiretap laws.

But while the media organizations had asked Koh to hear their motion to intervene on Feb. 27 - the next scheduled hearing in the case - Google said in a reply filed Thursday that there is "no pressing urgency" to resolve the sealing issue so quickly.

"There is no basis for the media intervenors to force their issues at such a late date without any prior notice," Google's reply states. "Had they contacted Google's counsel, they would have learned that the parties have been actively meeting and conferring on how best to allow the Feb. 27 hearing to proceed with no sealing formality. As the parties have agreed, the hearing will be entirely public - even if plaintiffs' counsel need to refer to the contents of confidential material during argument - with the only agreed restriction being the general guideline that plaintiffs will not publish to the gallery materials that were previously sealed or designated as confidential under the court's protective order. This agreement was reached specifically to avoid having to deal with sealing matters during the hearing itself, thereby allowing the court and counsel to have a fully public airing of the arguments unburdened by concerns about sealing and confidentiality.

"Media intervenors should not be allowed to jump the line and present argument at the Feb. 27 hearing," the company added, suggesting that a June 19 hearing would satisfy the interests of the public.

But Koh answered back quickly, finding that the news outlets' request could be decided without having a hearing at all.

"The court recognizes the importance of putative intervenors' concerns regarding public access to judicial proceedings," Koh wrote. "The court therefore expedites briefing on the motion to intervene. The parties shall file any response to the motion by March 3, 2014, and putative intervenors shall file any reply by March 7, 2014. Once briefing is complete, the motion will be deemed submitted without oral argument."

The Feb. 27 hearing will handle class certification as originally planned, the judge added.

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