I INTRODUCTION

The Australian Competition and Consumer Commission (ACCC) v Google LLC [2021] FCA 1172 is an interlocutory decision of the Federal Court concerning the scope of discovery in proceedings alleging misleading or deceptive conduct under the Australian Consumer Law (ACL). The judgement addresses whether extensive discovery of internal corporate documents is necessary to determine liability and clarifies the limits of discovery in commercial litigation.

II FACTS

The Australian Competition and Consumer Commission (ACCC) commenced proceedings alleging that Google LLC engaged in deceptive or misleading conduct and made false or misleading representations in contravention of ss 18, 34, and 29(1) of the ACL.[1] The allegations concerned Google’s conduct in obtaining users’ consent to expand the scope of data collection and combination of personally identifiable information.[2]

The alleged conduct centred on a notification shown to Google account users between 28 June 2016 and at least the 10December 2018.[3] The notification informed Google users of changes, including the combination of data across services for purposes such as targeted advertising.[4] The ACCC alleged that the notifications conveyed a misleading impression as to the nature and extent of Google’s data collection.[5]

During the pre-trial preparation, the ACCC sought discovery of documents relating to the internal development of Google’s notification.[6] The request was for the “Narnia 2.0” project and sought to identify members of various decision-making bodies and describe their involvement in the project.[7] These four bodies being the Executive Circle, GAIA Council, Narnia 2.0 Steering Committee, and PAL or PA Leads.[8]

Google resisted the application, arguing that the documents were of limited relevance and that the compliance would cause a substantial burden.[9]

III LEGAL ISSUES

The Court was required to determine whether the documents sought by the ACCC were sufficiently relevant to justify an order for discovery proceedings alleging misleading or deceptive conduct under s 18 of the Australian Consumer Law.[10] This required consideration of whether the documents were capable of materially assisting in determining whether Google’s notification conveyed a misleading impression to reasonable consumers.[11]

A further issue was whether the proposed discovery was consistent with the overarching purpose of civil practice and procedure, namely the just resolution of disputes as quickly, inexpensively and efficiently as possible, in accordance with r 20.11 of the Federal Court Rules 2011 (Cth).[12]

The Court also was required to assess whether the scope of the discovery sought to be proportionate, having regard to the burden of production, the volume of material involved and the likely probative value of the documents in resolving the issues in dispute.[13]

IV ARGUMENTS

A ACCC

The ACCC submitted that the documents sought were relevant to determining whether Google’s conduct was misleading and deceptive.[14] It argued that although intention is not an essential element of a contravention of s 18 of the Australian Consumer Law, it may assist the Court in characterising the conduct as misleading.[15] The ACCC argued that internal documents relating to the development of the notification would provide important insight into the representations Google intended to convey and whether any misleading impression was foreseeable.[16] Particularly, it submitted that documents identifying the members of relevant decision-making bodies and describing their involvement would assist in understanding how the notification was approved.[17] The ACCC argued that such materials would contextualise the impugned conduct and assist in assessing whether the representations made were likely to mislead consumers.[18]

B Google

Google submitted that the determination of liability should focus on the content of the notification, rather than the internal processes underlying its development.[19] It argued that the relevance of the requested documents were limited and would not materially assist the Court in determining whether the conduct was misleading.[20] While accepting that the earlier steps may be relevant, Google contended that the particular documents sought added little to the existing evidentiary record.[21] Google also emphasised the significant burden associated with the discovery request, stating that it would require the identification, review and collection of documents across numerous relevant personnel.[22] It estimated that the process would take several months and risk the scheduled hearing being delayed.[23] Furthermore, Google submitted that the ACCC’s request was belated and could have been pursued earlier through available statutory information-gathering mechanisms.[24]

V DECISION

Justice Yates dismissed the ACCC’s application for discovery in relation to Category 41 and refused to order interrogatories.[25] His Honour held that the proposed discovery would not facilitate the just resolution of the proceeding as required by r 20.11 of the Federal Court Rules 2011 (Cth).[26] The Court reasoned that the documents sought had low probative value because they were internal corporate materials remote from the central issue of how a reasonable consumer would understand Google’s notification, and that intention or internal decision-making was not determinative of liability under s 18 of the Australian Consumer Law.[27] The Court concluded that the likely utility of the documents did not justify the burden of production.[28] The ACCC was ordered to pay Google’s costs of the discovery application.[29]

VI IMPLICATIONS

The decision confirms that discovery in Federal Court proceedings is constrained by principles of relevance and proportionality.[30] Courts will not allow expansive discovery requests where the burden of compliance outweighs the likely probative value of the documents sought.[31] The judgment reinforces that misleading and deceptive conduct under the Australian Consumer Law is assessed objectively, focusing on the impression conveyed to the reasonable consumer rather than the internal intentions of the corporation.[32]

Internal corporate documents will not be required where they do not materially assist in determining how representations would be understood by consumers.[33] In the context of digital platforms, the decision highlights that liability turns on user-facing representations, such as notifications and interfaces, rather than the internal processes by which those representations are developed.[34]

The decision reflects a broader judicial trend limiting expansive discovery in complex litigation, emphasising proportionality and requiring parties to frame discovery requests with precision where large volumes of material are involved.

VII REFERENCES

[1] Australian Competition and Consumer Commission v Google LLC [2021] FCA 1172, [1].

[2] Ibid [1]-[2].

[3] Ibid [2].

[4] Ibid [1].

[5] Ibid.

[6] Ibid [4]-[6].

[7] Ibid [5].

[8] Ibid.

[9] Ibid [7].

[10] Ibid [4].

[11] Ibid [8].

[12] Ibid [17].

[13] Ibid [11], [17].

[14] Ibid [6].

[15] Ibid [18]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 655 [55].

[16] Australian Competition and Consumer Commission v Google LLC [2021] FCA 1172, [6].

[17] Ibid [5].

[18] Ibid [6].

[19] Ibid [8].

[20] Ibid.

[21] Ibid.

[22] Ibid [11].

[23] Ibid.

[24] Ibid [12].

[25] Ibid [23].

[26] Ibid [17].

[27] Ibid [20]-[21].

[28] Ibid [21].

[29] Ibid [23].

[30] Ibid [17].

[31] Ibid [11], [21].

[32] ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640, 655 [55].

[33] ACCC v Google LLC [2021] FCA 1172, [8].

[34] Ibid.