Levitt v. Yelp! Inc.

Filing 34

Statement Plaintiff Boris Y. Levitt's Discovery Plan by Boris Y. Levitt. (Ongaro, David) (Filed on 7/26/2010)

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LAWRENCE D. MURRAY, State Bar No. 77536 ROBERT C. STRICKLAND State Bar No. 243757 MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Tel: [phone] Fax: [phone] DAVID R. ONGARO, State Bar No. 154698 AMELIA D. WINCHESTER, State Bar No. 257928 ONGARO BURTT LLP 595 Market St., Suite 610 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs BORIS LEVITT, et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BORIS Y. LEVITT, on behalf of himself and all others similarly situated, Plaintiff, v. YELP! INC.; and DOES 1 through 100, inclusive, Defendants. Case No. CV 10-01321 MHP PLAINTIFF BORIS Y. LEVITT'S DISCOVERY PLAN

PLAINTIFF'S DISCOVERY PLAN

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Pursuant to the Court's July 19, 2010 Order, Plaintiff Boris Y. Levitt ("Plaintiff" or "Levitt") submits the following discovery plan. In addition, and also pursuant to the Court's order, Levitt submits a joint case management plan with Defendant Yelp! Inc. ("Yelp" or "Defendant"), which includes the timing of discovery. During the July 19, 2010 hearing, counsel for Levitt and Yelp attempted to meet and confer with counsel for Cats & Dogs regarding the submission of a joint discovery and case management plan by all parties, however, counsel for Cats & Dogs were not interested in meeting with Levitt and Yelp. Levitt and Yelp have since engaged in additional meet and confer efforts and have attempted to work with counsel for Cats & Dogs. As of the filing of this Plan, however, counsel for Cats and Dogs have refused to join in the joint submission. A. ANTICIPATED DISCOVERY DURING THE NEXT SIX MONTHS Written Discovery: Once the pleadings are finalized, Levitt will engage in written discovery. Pursuant to Levitt's agreement with Yelp, Levitt has agreed that discovery will be bifurcated, with class discovery occurring prior to class certification. Yelp and Levitt, however, have agreed that class discovery will be broadly construed to include any matter reasonably calculated to lead to the discovery of any matter listed in Rule 23 of the Federal Rules of Civil Procedure. Levitt anticipates drafting approximately ten special interrogatories and twenty requests for production of documents. These written discovery requests will be thoughtfully drafted with the intention of avoiding unnecessary discovery disputes. Levitt anticipates that his written discovery will address the following topics: Information relating to the class list; Yelp's representations regarding its Review Filter; Yelp's representations regarding manipulations of reviews; The manner in which the Review Filter functions; Yelp's database and/or any other documents showing changes made to the automatic portions of the Review Filter; -2PLAINTIFF'S DISCOVERY PLAN

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A list of sales employees of Yelp who are no longer employees; Yelp's database and/or any other documents showing changes that have been made to review pages pursuant to a) the Review Filter, b) violations of the terms of Yelp's Terms of Service or Review Guidelines, and c) if the author of the review removes the review; Yelp's database and/or other documents showing the names of businesses who have been contacted for advertising and purchasing results; Yelp's internal guidelines and scripts for the solicitation of advertising; Yelp's internal guidelines regarding manual changes to the review filter; The code of conduct of Yelp employees who solicited businesses for advertising; Any Yelp documents relating to complaints filed by business owners that relate to the conduct alleged in Levitt's complaint and any investigations and/or responses by Yelp; Any internal Yelp communications regarding the manipulation of reviews. The written discovery requests are intended to assist Levitt in establishing that a class can and should be certified. Depositions: a. Deposition(s) of Yelp Representatives.

Levitt proposes that a witness deposed in the class-certification phase will be questioned only once on all topics, including merits-based discovery and will therefore not be re-deposed in the merits phase, except for good cause shown (e.g., if significant new documents related to the witness's testimony are produced in the merits phase that would justify a new deposition) to avoid unnecessary duplication and expense. Levitt intends to notice the 30(b)(6) deposition(s) of the person(s) most knowledgeable at Yelp that can testify on the topics set forth below. Levitt anticipates that to obtain the relevant information, he will need to take no more than two or three depositions. Depending on the person(s) Yelp produces, Levitt intends to take the deposition(s) over the course of one to two days, if possible, to consolidate attorney hours. The Yelp deposition topics include, but are not limited, to the following: -3PLAINTIFF'S DISCOVERY PLAN

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Information relating to the class list; Yelp's representations regarding its Review Filter; Yelp's representations regarding manipulations of reviews; The manner in which the technology relating to the Review Filter functions; Yelp's database and/or any other documents showing changes made to the automatic portions of the Review Filter; Yelp's database and/or any other documents showing changes that have been made to review pages pursuant to a) the Review Filter, b) violations of the terms of Yelp's Terms of Service or Review Guidelines, and c) if the author of the review removes the review; Yelp's internal guidelines and scripts for the solicitation of advertising; Yelp's internal guidelines regarding manual changes to the review filter; The code of conduct for Yelp employees who solicited businesses for advertising; Yelp's database showing complaints and responses filed by business owners; Any internal Yelp communications regarding the manipulation of reviews, solicitation of advertising, targeting of potential advertisers, and complaints regarding the solicitation of advertising; Oversight of Yelp employees who solicited businesses for advertising including any reviews, critiques and awards issued that relate(d) to the sale of advertising; and Algorithms, log files and/or enabling fields that are used in Yelp's Review system. Forensics Expert. To avoid any unnecessary delay in the case, Levitt intends to hire a forensics expert to review the Review Filter software and any other software or database run by Yelp that would show when and why changes were made to reviews. Levitt has consulted with an expert in the field and has determined that the length of an expert forensics review could range from several weeks to several months depending on the size and complexity of the database(s), and software.

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B. OTHER PERTINENT INFORMATION a. Planned Efficiencies Discovery To litigate the class action against Yelp in the most efficient and economical manner, Levitt's counsel intends to immediately begin working with Yelp's counsel on stipulating to a protective order. Levitt has already consulted with Yelp's counsel about the need to finalize a protective order early on in the litigation to avoid any potential disputes that may arise after discovery begins; especially given the likelihood that discovery will involve confidential company information. To further streamline the process, Levitt intends to propose that the parties adopt one of the Northern District's form protective orders, which can then be edited depending on the requirements of both parties. Once discovery begins, Levitt's counsel intends to ­ as described above ­ serve Yelp with very precise interrogatories and requests for production of documents. Levitt's written discovery requests will be reasonably drafted and well-planned to avoid potential discovery disputes. Levitt anticipates that the drafting of the discovery requests will take approximately one to two hours. In the event that a discovery dispute arises, Levitt will meet and confer with Yelp to resolve the dispute, and will act reasonably to avoid court intervention. Given the proximity of Yelp's counsel's office to Levitt's counsel's office, Levitt's counsel is available to meet in-person whenever necessary to facilitate the resolution of any disputes or agreements. Should incompatible differences arise, Levitt ­ pursuant to the Court's standing order ­ will contact the court to arrange a telephone conference. Levitt anticipates that the resolution of a discovery dispute ­ assuming letter briefs are not required ­ should take less than two hours to resolve. If letter briefs are required, the resolution of a discovery dispute may take approximately five to seven hours to resolve, depending on the issues involved. Levitt anticipates that its counsel will require additional time to review Yelp's documents and responses. Without knowing the size of a production, Levitt is unable to estimate the time it will take to review discovery, however, assuming that the production is reasonable in size, Levitt anticipates that a review will take -5PLAINTIFF'S DISCOVERY PLAN

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approximately one day (excluding any forensics reviews). With regard to depositions, as noted above, Levitt anticipates that the Yelp depositions should take one to two days. The engagement of a forensics expert could range from approximately several weeks to several months. Counsel Efficiencies. Levitt's counsel is ­ and has been ­ cognizant of attorneys' hours in this case. Levitt's counsel believes that with an effective discovery plan, attorney hours will be limited and wellspent. Prior to filing an amended complaint, Levitt's counsel intends to ensure that the complaint is well-drafted so that pleadings challenges will be streamlined. Levitt's counsel further intends to staff the case minimally, with one associate working primarily with one lead attorney with staffing increases only if necessary. Anticipated Estimates of Attorneys' Hours ­ Discovery through Class Certification Levitt anticipates that the following estimates of attorneys' hours will be spent on litigation tasks after the pleadings are finalized: Drafting written discovery ­ 1-5 hours Responding to written discovery (including production requests) ­ 5-10 hours Resolution of Discovery disputes ­ 2-10 hours Deposition preparation (for depositions for both sides) ­ 10-25 hours Taking Depositions ­ 8-20 hours Defending Depositions ­ 16-25 hours Document review (for documents for both sides) ­ 8-20 hours Expert Discovery & Depositions (for experts for both sides) ­ 20-30 hours Investigating, researching and drafting motion for class certification ­ 40-200 hours Drafting Reply to Opposition to Motion for Class Certification ­ 15-25 hours Preparing for and attending Motion for Class Certification ­ 5 hours Total Estimated Attorneys' hours through Class Certification: 130-375 hours.

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b. Cooperation with Counsel. Throughout the duration of this litigation, Levitt's counsel has worked with Yelp's counsel in a professional and efficient matter. Counsel for Levitt and Yelp were able to agree on a case management plan in less than one hour and have since communicated effectively regarding the filing of a joint discovery plan. Given the nature of litigation, some disputes are inevitable; however, Levitt's counsel intends to act reasonably and wishes to maintain a professional working relationship with opposing counsel over the course of the litigation. Levitt's counsel has been and is still willing to work with counsel for Cats and Dogs. Since the Court's hearing on July 19, 2010, Levitt's counsel reached out to the attorney for Cats and Dogs ­ Jack Fitzgerald ­ who is based in Northern California to discuss case developments. If Cats and Dogs counsel becomes amenable to working with counsel for Levitt, Levitt anticipates working with co-counsel to implement the efficiencies discussed herein. Levitt's counsel will work diligently to ensure the adequate representation of the Class. /// /// /// /// /// /// /// /// /// /// /// /// /// /// -7PLAINTIFF'S DISCOVERY PLAN

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c. Extent and Nature of Contact with Named and Potential Plaintiffs Since early this year, Plaintiff Boris Levitt has been contacted by approximately fifty other potential class members and has given many of the potential plaintiffs the information of his counsel. Levitt's counsel has organized meetings for business owners who have contacted Levitt's counsel's offices. Levitt's counsel has several putative class members who are interested in becoming named class representatives in this lawsuit. Levitt's counsel has spent the majority of the two hundred hours it has in the case interviewing and investigating the claims of the potential plaintiffs who have contacted the offices of Levitt's counsel. Nearly all of the potential plaintiffs that are interested in becoming named class representatives are located in California. As a result, should these particular class members become named in the amended complaint, their depositions will require minimal travel expense. DATED: July 26, 2010 ONGARO BURTT LLP By: /s/ David R. Ongaro David R. Ongaro Attorneys for Plaintiff BORIS LEVITT LAWRENCE D. MURRAY, State Bar No. 77536 ROBERT C. STRICKLAND State Bar No. 243757 MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Tel: [phone] Fax: [phone] DAVID R. ONGARO, State Bar No. 154698 AMELIA D. WINCHESTER, State Bar No. 257928 ONGARO BURTT LLP 595 Market Street, Suite 610 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone]

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