By the time the case reached a jury, Boies Schiller Flexner partners James Lee and Mark Mao had been litigating it for nearly five years – through pandemic delays, discovery battles, and a fight against one of the most well-resourced legal adversaries in the world. The technology at its center was complex, the data sprawling, the defense relentless.
But the question that ultimately decided the case was deceptively simple.
At its core, the dispute turned on whether Google had continued to collect user data even after users took steps to turn it off – and whether that conduct amounted to an invasion of privacy.
For Lee and Mao – litigators who have built their practices at the forefront of privacy, technology and complex class actions – Rodriguez v. Google was not just about proving liability. In a landscape defined by evolving technology and layered disclosures, it tested whether foundational privacy principles still hold.
“At the end of the day, however complex the facts, it still comes down to a basic expectation of privacy – and whether it was violated,” says Lee.
That answer came when Lee and Mao – working alongside firm founder and litigation legend David Boies as trial counsel along with co-counsel from Susman Godfrey and Morgan & Morgan – secured a $425.7 M jury verdict.
Mao and Lee served as architects in the case, embodying roles that spanned through leadership to daily legwork. As the case approached trial, they worked closely with Boies on the legal strategy, and the legal luminary left a clear imprint on his colleagues and on the outcome of the case. For Mao, watching Boies at trial was a lesson in precision and discipline.
“He started with a simple question – whether the disclosures could have been clearer – and methodically walked the witness through the record,” Mao recalls. “What followed were clear, repeated admissions – the kind we hadn’t been able to get despite multiple attempts. It was masterful.”
What’s striking is not just the scale of the win, but how decisively the complexity fell away. Despite novel technology and sophisticated defenses, the jury grounded its decision in one of the oldest legal principles on the books: invasion of privacy.
Lawdragon: Can you walk us through what was at issue in this case?
James Lee: The case centers on how Google collects data across apps that aren’t its own through software development kits – tools they offer to app developers to help build their apps. Google embeds trackers into those free kits, through which they collect detailed information about what users are doing – what they download, what they're looking at, when they look at it, what order they look at it.
Most people assume that if they’re not using a Google product, they’re not being tracked by Google. But through these software development kits, Google’s tentacles reach virtually every app developer on the planet, and they're actually tracking you through non-Google apps as well.
The problem for Google comes down to optics. To address this, they offered a privacy control called “Web & App Activity,” which claimed users would stop this data from being saved if turned off. In reality, Google saved it whether the control was turned on or off.
People have a clear sense of privacy in the physical world. In the digital world, those boundaries are less visible, which makes it easier to blur them. This case was about defining where that line is.
The disclosures about what Google could do and couldn't do were pretty clear, and Google didn’t dispute that it collected the data. Its defenses focused on how to characterize that conduct – pointing to different disclosures, or arguing that the data was pseudonymized or not tied to specific individuals. But the data included device identifiers which allowed it to be associated with a user over time.
At trial, they argued that they didn’t really make money off of it, so what did it matter? What’s the harm? The framing was that this is just data – used for business purposes, not something anyone is personally reviewing – so why should it matter?
Our position was that it does matter. People have a clear sense of privacy in the physical world. In the digital world, those boundaries are less visible, which makes it easier to blur them. This case was about defining where that line is.
LD: What was at stake if Google had won?
JL: There were huge stakes on a philosophical level – the question of whether privacy should matter online. In the real world, we have expectations of privacy. If a company says they won't record you, they won't. If that trust was broken, it would be a clear violation. Companies would go out of business for doing something like that.
When it comes to the digital world, the expectations are not as clear. If a company says they won't record and save everything you're doing, that doesn't mean they always live up to the promise. Usually there are technical caveats that users don't really understand. Big tech collects and saves vast amounts of user data, and regulation hasn’t kept up – so civil litigation has become the main way to hold these companies accountable.
The stakes here went well beyond a single case. At every stage – from motions to dismiss, to class certification, to trial – the question was whether existing laws and courts are equipped to address modern digital privacy, and whether a jury would view these violations as meaningful.
If we had lost along the way, the consequences would have been significant. It could have narrowed what types of privacy claims are actionable, limited the ability to bring cases at scale, and discouraged future enforcement altogether. These cases are complex and expensive to litigate, and without clear signals from courts and juries that the issues matter, fewer firms would be willing to take them on. There was real pressure. We understood that the outcome wouldn’t just affect our clients – it would help define how privacy is enforced going forward.
Mark Mao: Interestingly, the jury returned a verdict in our favor based on invasion of privacy, which is one of our oldest laws on the books. There were other more sophisticated, more current laws, but at the end of the day, they saw this case as an invasion of privacy.
That was an important lesson for us. Legislatures can try to keep pace with evolving technology, but jurors tend to see these cases in more fundamental terms. However complex the facts, it still comes down to a basic expectation of privacy – and whether it was violated.
LD: When you’re up against a company like Google, with enormous resources, what does it take to hold them accountable?
MM: The real test of whether the system works is whether lawyers representing consumers – the “little guys” – are willing and able to take these cases all the way to trial. You can have strong legal claims and clear violations of established norms, but if those cases aren’t seen through, then accountability breaks down.
James and I have always loved trials – it’s where we do our best work. It’s where strategy, narrative and advocacy come together. We’re responding to defenses, refining the theory and presenting a clear story to the jury. At some level, there’s always a question of faith. When you’re dealing with cases that may be paradigm-shifting or carry real precedential weight, you’re not just arguing the facts – you’re testing whether the system works the way it’s supposed to. There’s always a degree of uncertainty in that.
Legislatures can try to keep pace with evolving technology, but jurors tend to see these cases in more fundamental terms. However complex the facts, it still comes down to a basic expectation of privacy – and whether it was violated.
JL: Google is an extraordinarily sophisticated and well-resourced adversary, and their approach to litigation reflects that. They engage in what I would describe as a scorched earth defense – where everything is a no. Every request is resisted, every effort to get evidence is challenged, and the process can be slowed at every turn.
I think the reality is that strategy is designed to test whether the firm on the other side has the will and the resources to stay in the fight over several years. Many don’t – and that can lead to cases settling for less than their full value.
That’s where Boies Schiller has distinguished itself. In both the Incognito and Rodriguez matters, we’ve demonstrated that we’re prepared to take cases all the way to verdict. I think that signals clearly that those kinds of tactics won’t deter us from pursuing the full value of the claims – this type of strategy is not going to work when our firm is involved.
LD: How did you build the case in the early stages?
JL: Mark is probably the preeminent privacy and technology lawyer in the country, and he had already been thinking deeply about how to use litigation to address gaps in consumer privacy. I had done large-scale class actions on behalf of plaintiffs. We saw a real opportunity here to combine those perspectives and build something that hadn’t really been tested before.
In the early stages, the focus was on developing a complaint that could withstand scrutiny. Once we reached a point where the allegations were solid we knew the case had real traction, particularly because Google didn't deny publicly the allegations in the complaint.
From there, the team expanded in phases as the case progressed. After the motion to dismiss, we built out a larger discovery team. Following class certification, the case took on even greater significance and David Boies joined to help lead the trial effort. As we approached trial, all three plaintiff firms staffed up with their top litigators to ensure we were fully resourced against the amount of talent and resources that Google was bringing.
LD: What were the biggest challenges you faced in building the case, particularly in framing the legal theory?
JL: Google did not disclose all of the information they were supposed to, and not having the information upfront made it very difficult in terms of formulating our case theory and the time and resources it took to get to trial.
We also had to really contend with Google's defenses. This notion that they do collect this data from users, but they are “pseudo-anonymized.” We had to understand the nuances of that as best we could.
And then we had to come up with a damages theory that was viable. Fortunately, in the discovery campaign, we found that Google had just happened to have done an internal analysis of what this type of data is worth. That was really helpful and took a bit of luck.
When you’re dealing with cases that may be paradigm-shifting or carry real precedential weight, you’re not just arguing the facts – you’re testing whether the system works the way it’s supposed to.
When we got to trial, we got down to first principles. David Boies was wise in making sure that we didn't get lost in the weeds of the technicals, and kept it as simple as possible. This is a disclosure case. Wherever Google tried to complicate things, our strategy at trial was to keep it as simple as possible. Google made these promises, they didn't live up to them. They lied. Period.
MM: One of the biggest challenges for me was what I’d call a “language barrier” – not in the traditional sense, but in how these concepts are framed. Google uses codewords for what they do and those words often change over time – that's not by mistake. Getting behind the technical barriers to understand what they were doing was an immense challenge at first.
Google relied on terms like “pseudonymous,” which, frankly, is a bit of a sleight of hand. They’d describe data that way, and then talk about it as if it were anonymous. But if you take a step back, that distinction doesn’t hold. You’re either identifiable or you’re not – “pseudo-anonymous” is, at some level, a contradiction.
We kept coming back to a simple analogy: if I put a mask over your face but know where you live, where you work, where you shop, your phone number, your social security number, and track everything else you do, is that really anonymous? Most people would say no. If you are “pseudo-identifiable,” that means you're identifiable. A big part of the work was cutting through that terminology and bringing the issue back to something the jury could evaluate in plain terms.
LD: Take us into the trial – what moments stand out, and were there any key risks or pivots along the way?
JL: Once we got to trial, we ended up shedding one of our privacy experts, and we also decided not to call one of our class representatives. We wanted to simplify the case as much as possible and keep the focus on the disclosures that Google made as opposed to what they actually did. The witnesses that we didn't call would've done a great job, but it was a calculated risk to keep our story consistent without getting distracted with testimony or evidence that wasn't aligned with that story.
We’d also uncovered a lot of communications from senior employees acknowledging that Google’s representations about “Web & App Activity” were inaccurate, harmful to the user and raised real privacy concerns – and that Google had done nothing about it. At trial those witnesses consistently tried to distance themselves from those statements or tried to walk them back. That made for challenging – but ultimately effective – cross-examinations. It became clear to the jury that they were being evasive and not telling the full story.
MM: The most memorable moment for me came during a cross-examination. We had a witness we hadn’t been able to crack in discovery. Two of us had taken a run at him and gotten nowhere. He was smart, composed – and frankly, I liked him, which didn’t make it any easier. Then David Boies took the cross. David is truly a master – his energy cannot be outmatched. He started with a simple question – whether the disclosures could have been clearer – and methodically walked the witness through the record. What followed were clear, repeated admissions – the kind we hadn’t been able to get despite multiple attempts. It was masterful.
For me, that moment wasn’t just a testament to David’s skill. It was something more fundamental. It was a reminder that the system does work. People actually feel compelled to say what is righteous and true, even though they've been coached to say otherwise.
At the end of the day, no matter how big the company is or how many lawyers they have, the case gets decided in a courtroom, in front of a judge and a jury. That’s the design. An adversarial process where each side presents its case, and a group of peers determines what’s true. It’s not about matching resources blow for blow – it’s about being confident that if you present the facts clearly and honestly, the system will do what it’s designed to do.
That’s something that’s deeply embedded in this firm. We believe in the rule of law, and we’re not afraid to take a case to trial. It’s not a declaration of war – it’s the system working the way it’s supposed to.
LD: What do you remember about the win?
JL: After the verdict, Mark and I were sitting with David Boies, and he leaned over and said, “A half-billion-dollar jury verdict – not many lawyers can say they’ve done that.” Then he added, “Now the real trick is getting to a billion. I’ve done that ten times.”
We all just laughed. It was a great result – and a moment I won’t forget.
