TimesLines, Inc v. Facebook, Inc.

Filing 60

MEMORANDUM by Facebook, Inc. in Opposition to motion to clarify 58 and compel (Willsey, Peter)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TIMELINES, INC. Plaintiff, v. FACEBOOK, INC. Defendant. ) ) ) ) ) ) ) ) ) Civil Action No.: 11 CV 6867 Jury Trial Demanded DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFF TIMELINES, INC.’S MOTION TO CLARIFY AND COMPEL I. INTRODUCTION The Motion to Clarify and Compel (the “Motion”) filed by Plaintiff Timelines, Inc. (“Timelines”) is unwarranted. Timelines has not articulated any reason it needs Facebook’s complete document production by this Friday. Facebook has already informed Timelines that it is in the process of reviewing tens of thousands of documents and intends to complete its rolling productions by July 31, 2012 – one month before the parties’ agreed upon close of fact discovery on August 31 and five months before the Court-ordered close of all discovery on December 28. Further, Facebook is willing to extend the August 31 date if Timelines requires more time to review the production and take fact depositions. It is unnecessary for the Court to adjust any deadlines or compel any discovery from Facebook. II. ARGUMENT Timelines inexplicably moves to compel Facebook to complete its document production by June 29, 2012, nearly six months before the close of all discovery, two months before the mutually agreed target for the end of fact discovery, and one month before the date Facebook has estimated it can complete its main production. Timelines’ motion is devoid of any explanation or showing of urgency for why an order compelling production is necessary or appropriate given that Facebook has produced, and continues to diligently produce, responsive documents. The motion lacks merit and should be denied. Facebook is proceeding reasonably to satisfy its discovery obligations. As Timelines is well aware, discovery was initially postponed by mutual agreement for early settlement negotiations. Since that time, the parties responded to written discovery and negotiated a protective order, and have each produced hundreds of pages of documents. -2- Facebook has now conducted interviews of potential document custodians, collected data from relevant custodial and noncustodial sources, and is in the process of reviewing tens of thousands of documents potentially responsive to Timelines’ 75 document requests. As it has informed Timelines, Facebook expects to continue producing documents on a rolling basis and to complete its production by the end of July. Timelines’ demand that Facebook complete its production by this Friday, June 29, is logistically impossible and unnecessary in light of the December 28 close of discovery. Timelines, on the other hand, has indicated that its initial production of 229 documents constitutes the entirety of its production. This production does not include any internal emails relating to the substantive issues in this proceeding. If in fact Timelines only possesses 229 responsive documents, the burden of discovery in this proceeding is obviously disproportionate. It is hardly surprising that, unlike Timelines, Facebook’s collection and review is ongoing. Timelines’ sense of urgency is misplaced; Timelines will not be prejudiced in any manner by the current trajectory of Facebook’s production. While the parties have agreed to complete fact discovery by August 31, that date is not part of the scheduling order in this case. Although Facebook believes there is no scheduling ambiguity that requires the Court’s clarification, it is willing to extend the August 31 fact discovery date if Timelines needs more time to review Facebook’s production and take fact depositions.1 Facebook has already conveyed this offer to Timelines. III. CONCLUSION. For the reasons stated above, Facebook respectfully requests that the Court deny Timelines’ Motion to Clarify and Compel. 1 No depositions have been noticed by either party. -3- Dated: June 26, 2012 Respectfully submitted, By: /s/ Peter J. Willsey Peter J. Willsey (pro hac vice) Brendan J. Hughes (pro hac vice pending) COOLEY LLP 777 6th Street, NW, Suite 1100 Washington, DC 20001 Phone: (202) 842-7800 Fax: (202) 842-7899 Email: pwillsey@cooley.com bhughes@cooley.com Michael G. Rhodes (pro hac vice) COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Phone: (415) 693-2000 Fax: (415) 693-2222 Email: rhodesmg@cooley.com Steven D. McCormick (IL Bar No. 1824260) KIRKLAND & ELLIS LLP 300 North Lasalle Chicago, IL 60654-3406 Tel: (312) 862-2000 Fax: (312) 862-2200 Email: smccormick@kirkland.com Attorneys for Defendant-Counterplaintiff FACEBOOK, INC. -4- CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that he served the foregoing DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFF TIMELINES, INC.’S MOTION TO CLARIFY AND COMPEL by means of the Court’s CM/ECF System, which causes a true and correct copy of the same to be served electronically on all CM/ECF registered counsel of record, on June 26, 2012. Dated: June 26, 2012 /s/ Peter J. Willsey Peter J. Willsey (pro hac vice) Brendan J. Hughes (pro hac vice pending) COOLEY LLP 777 6th Street, NW, Suite 1100 Washington, DC 20001 Phone: (202) 842-7800 Fax: (202) 842-7899 Email: pwillsey@cooley.com Attorney for Defendant-Counterplaintiff FACEBOOK, INC. 1040697/HN -5-