Plaintiffs' proposal regarding discovery request in 'zombie cookie' suit against Turn approved

By Takesha Thomas | Nov 9, 2018

SAN FRANCISCO – A magistrate judge has approved the slightly modified proposal of plaintiffs in a case against a mobile marketing company regarding discovery requests.

U.S. District Court Northern District of California San Francisco Division Magistrate Judge Laurel Beeler moved to adopt a proposal presented by Anthony Henson, et al, against Turn Inc., with slight modifications. 

Turn had requested in response to the case that the plaintiffs hand over their mobile devices for inspection, or produce forensic images of the mobile devices as well as their full web browsing history for devices. Henson and William Cintron alleged this request was "overboard and an invasion of privacy rights," the ruling states.

"...The plaintiffs correctly point out (and as Turn does not address) Turn’s request to directly inspect the plaintiffs’ mobile devices or for complete forensic images of the devices threatens to sweep in documents and information that are not relevant to the issues in this case, such as the plaintiffs’ private text messages, emails, contact lists and photographs," the ruling states.

Henson and Cintron instead proposed to provide their "web browsing history and cookies associated with Turn partner websites (contingent on Turn’s identifying such sites) and the date fields (but not the content) of all other cookies on their mobile devices."

Beeler agreed with the plaintiffs' suggestions and also ruled they should "produce the dates of the entries in their browsing history." 

According to the ruling, plaintiffs Henson and Cintron were subscribers to Verizon’s cellular and data services. The pair alleges that Turn "developed a method that made an 'end-run' around users’ cookie-blocking and-deleting technologies." 

"Turn allegedly did so through a Verizon function that created a persistent, unique identifier header for Verizon subscribers," the ruling states.

According to the ruling, the suit states that Turn placed the "so-called 'zombie cookies' on users’ devices" making it impossible to delete or block cookies that would “'respawn' in order to continue tracking users across the web" if users tried to delete them.

Both Henson and Cintron are New York residents and brought the claims alleging a violation of New York General Business Law, "which makes unlawful '[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in [New York],'" the ruling states.

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