In re Google Inc. Cookie Placement Consumer Privacy Litigation, No. 1:12-md-02358-JDW (D. Del. Aug. 27, 2026), full opinion (PDF)
A spoliation motion is often filed to repair a hole in the movant's own proof. On August 27, Judge Joshua D. Wolson denied cross-motions for ESI sanctions in a long-running privacy MDL. He then denied class certification. Each side had asked him to treat lost ESI as proof of a disputed fact. Rule 37(e) does not reach that far.
What happened
The plaintiffs claim Google placed DoubleClick advertising cookies on Safari users' browsers by working around a default setting that blocked third-party cookies. The parties agree that Safari users could receive those cookies through several mechanisms during the period at issue. To certify a class, the plaintiffs needed a reliable way to tell which users got one through the challenged workaround. They never produced such a method.
The plaintiffs blamed Google for the gap. Google's historical logs survive. The encryption keys that unlock parts of those logs are gone. Google let them expire under its ordinary retention practices, after litigation over the Safari issue became foreseeable in early 2012. The plaintiffs moved under Rule 37(e) for a sanction deeming the class ascertainable. Google cross-moved over browser files the plaintiffs had lost from their own computers, files bearing on their Safari versions, browser settings, and receipt of the challenged cookies.
The court's analysis
The court took up the scope of Google's duty before its breach. Whether the keys fell inside that duty is measured, the court stated, "from the perspective of a reasonable person at the time, not with hindsight." The Third Circuit decided the cases founding the ascertainability doctrine beginning in August 2012, the court noted, months after Google's preservation duty arose, and kept refining the requirement for years afterward. Nothing in the record, the court concluded, showed that a reasonable person in 2012 would have understood the duty to extend to encryption keys. Deleting them was therefore not spoliation.
Even if the duty had covered the keys, the court continued, the plaintiffs had not shown prejudice. Their expert could not say whether the decrypted data would have distinguished affected users from unaffected ones, only that it might have let him find out. A 50/50 possibility, the court observed, does not satisfy a preponderance standard. The plaintiffs answered that their expert could not say because Google had destroyed the keys. That answer, in the court's view, restated the motion's premise. Rule 37(e)(1) does not permit a court to presume lost evidence would have established what the movant hoped.
Deeming the class ascertainable, the court reasoned, would identify no additional class member and would supply no method for identifying one. It would excuse the plaintiffs from an independent prerequisite to certification without supplying the evidence. The sanction they sought would also operate as a conclusive presumption, the court noted, available under Rule 37(e)(2) rather than (e)(1). Rule 37(e)(2) requires intent to deprive. The court stated that Google had continued to apply its ordinary retention practices. Continuing a routine schedule, in the court's view, is not an intent to deprive.
Losing the plaintiffs' browser files, the court acknowledged, cost Google one means of testing their account of events. Rule 37(e)(1) still caps a remedy at measures "no greater than necessary to cure the prejudice." Google's request exceeded that limit, in the court's view. The sanction Google wanted required the court to assume those files would have resolved the disputed questions, then to foreclose contrary evidence. Rule 37(e)(1) addresses prejudice caused by lost ESI, the court stated, but does not let a court decide disputed facts by assuming what that ESI contained.
Why it matters
Rule 37(e) offsets the disadvantage created by lost ESI. It does not stand in for evidence a party always had to develop on its own. A movant who cannot prove an element of its case gains little by showing the other side lost something helpful.
Prejudice therefore has to be proved concretely. The plaintiffs could show only that the missing keys might have let their expert determine whether class members could be identified at all. The court treated that as speculation. A declaration that identifies what the lost ESI would have established carries the burden. One that identifies what it may have made findable does not.
The remedy has to fit the harm as well. The court assumed Google's evidentiary disadvantage was real, then measured the requested sanction against it. Resolving standing, class membership, and the merits in Google's favor went well past curing that disadvantage.
Google's duty to preserve was undisputed by early 2012. The fight was over whether encryption keys sat inside it. The court measured that question against what a reasonable person understood in 2012, not against a class-certification doctrine that arrived afterward. A hold drafted today will be judged the same way, on the claims and the law in front of its author.
The full opinion is available as a PDF.
