Justice Roberts nixes South Carolina government’s immunity from Google data subpoena

WASHINGTON (CN) — Chief Justice John Roberts rejected an emergency appeal from South Carolina's parks department on Wednesday, forcing the agency to hand over its online advertising records to Google. 

The George W. Bush appointee, who presides over emergency appeals from the Fourth Circuit, did not explain his order or extend consideration of the appeal to his colleagues.

South Carolina and 16 other states say Google monopolized the online ad business, stifling competition in the industry — for example, cutting a deal with Facebook to manipulate auctions for mobile advertising. 

The multi-state lawsuit is in its infancy, but a prelude to the showdown festered over the tech giant's request for discovery materials. South Carolina’s Department of Parks, Recreation and Tourism protested Google’s subpoena for its proprietary data and launched an immunity defense that reached the Supreme Court’s emergency docket. 

Roberts' rejection of that argument won Google the first Supreme Court duel in the antitrust lawsuit. 

Both sides filed discovery requests, but the states blocked Google’s motion, claiming to be powerless to access agency records. Seeking to avoid a delay, the tech giant shelved its disagreement with that argument and subpoenaed the state agencies. 

South Carolina’s parks department then added another hurdle by claiming it was immune from the discovery request and refusing to hand over agency records. The department acknowledged that the state’s attorney general forfeited its immunity but claimed that executive agencies preserved their own sovereign protections. 

The Fourth Circuit rejected that argument and the department to appealed to the high court, framing its application as a question of federalism. “This court’s guidance is needed on this important question discerning the balance of state and federal power,” the department wrote. 

South Carolina’s parks department argued that only states have the authority to give their agencies power, and earlier this year, the state passed a law cleaving the attorney general’s authority over executive agencies. 

“The Fourth Circuit created a brightline rule that any one state officer may waive the immunity of every arm of the state without regard to a state’s structure of government or its internal allocation of authority,” the parks department wrote. “According to the court, a waiver by one state agency is always a waiver by all — even if state law says otherwise.” 

Google said the decision below was correct in every respect, noting the appeals courts' unanimity.

“Because South Carolina’s attorney general voluntarily invoked federal jurisdiction by suing Google, the state has waived its sovereign immunity, including any immunity SCPRT would otherwise possess as an arm of the state,” Google wrote. 

Google warned that the court would invite litigation abuses by granting the department’s stay application. 

“It would permit states to bring suit in federal court while shielding the state’s own agencies from complying with the discovery the defendant needs to mount a defense,” Google wrote. 

Because Roberts did not refer the application to the full court, South Carolina's parks department can resubmit its emergency appeal to another justice for consideration.

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