Pimental v. Google, Inc. et al

Filing 15

JOINT CASE MANAGEMENT STATEMENT, filed by Google, Inc., Slide, Inc., Nicole Pimental. (Wilson, Bobbie) (Filed on 8/31/2011) Modified on 9/1/2011 (jlm, COURT STAFF).

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PERKINS COIE LLP
BOBBIE J. WILSON (Bar No. 148317)
JOSHUA A. REITEN (Bar No. 238985)
Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.

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SEAN REIS (Bar No. 184044)
[e-mail]
EDELSON MCGUIRE, LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, CA 92688
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
NICOLE PIMENTAL, individually and on behalf of
all others similarly situated

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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NICOLE PIMENTAL, individually and on
behalf of all others similarly situated,

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Plaintiff,
v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,
Defendants.

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JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

Case No. 11-cv-02585-SBA
JOINT CASE MANAGEMENT
STATEMENT

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Pursuant to Civil Local Rule 16-9 and Rule 26(f) of the Federal Rules of Civil Procedure,

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Plaintiff Nicole Pimental, Defendant Google Inc., and Defendant Slide, Inc. (collectively the

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“Parties”) jointly submit this Joint Case Management Statement.

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1.

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Jurisdiction & Service:
The First Amended Complaint (“FAC”) asserts that the Court has subject-matter

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jurisdiction over this case pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2),

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because at least one member of the putative class is a citizen of a state different from Defendants

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and the amount in controversy exceeds the sum or value of $5,000,000. Defendants do not

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contest the existence of subject matter or personal jurisdiction or the venue of this action. No

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parties remain to be served.

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2.

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Facts:
Plaintiff’s FAC asserts a single claim for relief, alleging that Defendants transmitted text

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message advertisements through their group text messaging service known as Disco to the

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cellular telephones of Plaintiff and the putative class in violation of the Telephone Consumer

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Protection Act, 47 U.S.C. § 227 (hereafter the “TCPA”). Specifically, Plaintiff alleges that

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Defendants made and transmitted text message advertisements that promoted the Disco group

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texting service and the Disco mobile application to Plaintiff without express consent. Plaintiff

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alleges, on behalf of the putative class, that Defendants never sought nor obtained consent to

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make and transmit these text messages.

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Factual issues in this case include, but are not limited to, the following: (a) whether

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Plaintiff and members of the Class received the text message calls at issue; (b) whether Plaintiff

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and members of the Class gave prior express consent to receive those text message calls;

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(c) whether Defendants were responsible for making those text message calls and causing them to

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be transmitted to Plaintiff and the members of the putative class; and (d) whether Defendants used

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an “automatic telephone dialing system,” as that term is defined by the TCPA and applicable

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authorities.

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Defendants deny liability on Plaintiff’s claim.

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-1JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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3.

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Legal Issues:
The legal issues in this case include, but are not limited to, the following: (a) whether the

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text message calls allegedly received by Plaintiff and the Class violate the TCPA; (b) whether the

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putative Class, as defined in the FAC, may be certified under Rule 23; and (c) whether Plaintiff

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and/or the putative Class members are entitled to treble damages under the TCPA.

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4.

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Motions:
There are no prior or pending motions. Plaintiff anticipates filing a motion for class

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certification, motion for summary judgment motion and, if necessary, discovery-related motions.

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As discussed in Section 10, a motion to consolidate cases may also be filed.

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Defendant anticipates filing a motion to dismiss pursuant to Rule 12, motion for summary

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judgment motion and, if necessary, discovery-related motions.

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5.

Amendment of Pleadings:

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The initial complaint in this action was filed on May 27, 2011. Plaintiff filed the FAC on

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June 24, 2011, as of right. (Dkt. 5). Plaintiff does not anticipate the need to file any amendments

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to the pleadings at this time. Future developments, however, could necessitate the filing of

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amended pleadings, and the addition of un-named defendants based on information uncovered

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through discovery. The Parties agree to amend, or file any requests to amend, pleadings on or

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before February 14, 2012.

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6.

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Evidence Preservation:
The Parties have taken reasonable steps to preserve evidence, including electronically

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stored information, relevant to the issues reasonably evident in this action. The Parties have

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agreed to further discuss the following issues: (1) the identification of relevant and discoverable

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ESI; (2) the scope of discoverable ESI to be preserved and produced by the Parties; (3) the

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formats for preservation and production of ESI; (4) the potential for conducting discovery in

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phases or stages as a method for reducing costs and burden; (5) the procedures for handling

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inadvertent production of privileged information and other privilege waiver issues under Rule 502

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of the Federal Rules of Evidence; (6) any other relevant ESI issues involved in the case.

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-2JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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The Parties have agreed to attempt to craft an appropriate protocol governing the

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production of ESI and have agreed to negotiate a Stipulated Protective Order.

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7.

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Disclosures:
Defendants believe that discovery, including the exchange of initial disclosures under

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Rule 26(a)(1), should be temporarily stayed pending resolution of Defendants’ forthcoming

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motion to dismiss, which Defendants believe will be dispositive. Plaintiff disagrees with that

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position and believes that discovery should not be stayed.

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In the event that no discovery stay issues, the Parties have agreed to exchange initial
disclosures on or before October 14, 2011.
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Discovery:
As noted above, the Parties disagree as to whether a stay of discovery should issue

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pending resolution of Defendants’ motion to dismiss. The Parties have, however, informally

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discussed the preliminary exchange of discovery if and when discovery commences. To date, no

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such information has been formally exchanged. As stated above, if no discovery stay issues, the

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Parties will exchange Rule 26(a)(1) disclosures by October 14, 2011. Further, if no discovery

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stay issues, the Parties propose the following schedule for discovery:

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

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Discovery shall not be bifurcated and class and merits discovery will take place
simultaneously.

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Fact discovery to commence on October 21, 2011,one week after the service of initial
disclosures.

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Fact discovery to close on July 20, 2012.

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Expert discovery will be separate from and follow class and merits discovery.

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Experts to be disclosed by July 6, 2012, and initial expert reports to be disclosed by

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August 6, 2012; rebuttal experts to be disclosed by August 20, 2012, and rebuttal

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expert reports to be disclosed by September 19, 2012.

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Expert discovery to commence on July 23, 2012, and close on October 19, 2012.

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-3JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA



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Although it is premature to anticipate the scope of discovery in this case, the Parties

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do not foresee the need for a modification of the scope of the discovery rules in the

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Federal Rules of Civil Procedure, or the standard discovery limitations thereunder.


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The Parties agree that discovery sought in this case may involve confidential

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information. Accordingly, as stated above, the Parties anticipate submitting a

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Stipulated Protective Order to the Court for approval within 60 days.


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The Parties agree that privilege logs need not be served until 60 days after a Party has

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completed its production in response to a set of requests for production. The Parties

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also agree that Rule 502(b) and (d) of the Federal Rules of Evidence shall apply to this

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case. As such, the inadvertent disclosure of privileged material shall not operate as a

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waiver of that privilege. The Parties’ Stipulated Protective Order to be presented to

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the Court for approval will contain a clause regarding the inadvertent production of

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privileged material and the handling of the same.

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9.

Class Actions:

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This action is a putative class action and requires the following additions to the Parties’

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Joint Case Management Conference Statement pursuant to Civil Local Rule 16-9(b). The FAC

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asserts this matter is maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and (3) and

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defines the Class as: “All persons who (1) received a text message directly from the Disco group

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texting service that was not sent by a Disco group leader or another member of a Disco group;

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and (2) all persons who opted-out of a Disco texting group within twenty-four hours of receipt of

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an initiating text message or who was a member of a Disco texting group that was closed within

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twenty-four hours of its creation.” Plaintiff reserves the right to seek leave of Court to revise this

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definition after sufficient discovery.

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Plaintiff intends on moving this Court to certify a class under Rule 23(b)(3) of the Federal

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Rules of Civil Procedure after appropriate discovery, and the Parties have agreed to tentatively set

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November 26, 2012, as the date for Plaintiff to file a class certification motion. Future

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developments in the case (e.g., motion practice, joinder of additional parties) may require that the

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date for filing a class certification motion be delayed.
-4JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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Plaintiff claims she is entitled to maintain this action as a class action under Fed. R. Civ.
P. 23(a)-(b) because the following criteria are met.
1. Numerosity. The Class is estimated to consist of thousands of individuals to whom
the allegedly unauthorized text message advertisements were transmitted.
2. Commonality: There are many questions of law and fact common to the claims of the

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Plaintiff and other members of the Class which predominate over any questions that may affect

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individual members of the Class, including: (a) whether the text messages at issue were sent using

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an automatic telephone dialing system; (b) whether Plaintiff and the Class gave their prior express

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consent to receive the text messages at issues; and (c) whether the transmission of the text

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messages at issue was done in willful violation of the TCPA so that statutorily available treble

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damages are warranted.

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3. Typicality: Plaintiff alleges that Defendants have acted or failed to act on grounds

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generally applicable to the Plaintiff and other members of the Class by allegedly transmitting en

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masse the text messages at issue to Plaintiff and the Class in the same or similar manner requiring

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the Court’s imposition of uniform statutory relief.

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4. Adequacy: Plaintiff will fairly and adequately represent and protect the interests of

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the other members of the proposed Class. Plaintiff has retained counsel with substantial

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experience in prosecuting complex litigation and class actions. Plaintiff and her counsel are

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committed to vigorously prosecuting this action on behalf of the members of the Class, and have

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the financial resources to do so. Neither Plaintiff nor her counsel has any interest adverse to those

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of the other members of the Class.

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5. Requirements under Rule 23(b)(3): The questions of law and fact discussed above

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predominate over any questions affecting only individual members as Defendants’ alleged

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conduct was uniform as to the Plaintiff and the Class. This class action lawsuit is the most fair

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and efficient way of adjudicating this controversy. The members of the Class would find the cost

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of litigating their claims to be prohibitive, as each individual plaintiff has suffered relatively small

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statutory damages compared to the costs of litigation. A class action is also superior to multiple

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-5JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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individual actions in that it conserves the resources of the courts and the litigants, and promotes

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consistency and efficiency of adjudication.

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Defendants dispute that this action is maintainable as a class action under Rule 23.

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Defendants anticipate opposing any motion to certify a class in this action.

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10.

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Related Cases:
Franklin v. Google, Inc. (11-cv-03333-SBA) (N.D. Cal.) was filed on July 7, 2011. The

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plaintiff in that case filed a Notice of Pendency of Related Case or Proceeding referencing this

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action. On August 23, 2011, the Franklin case was reassigned to this Court after the plaintiff

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declined to proceed before the Magistrate Judge. However, no order has issued relating the

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Franklin case to the instant action.

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Relief:

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Plaintiff seeks the following relief:

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(a)

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An order certifying the action as a Class Action and designating Plaintiff and her
counsel as representatives of the Class;

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(b)

Injunctive relief for the Class on Count I;

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(c)

Actual damages, or statutory damages in the amount of $500 per violation under

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47 U.S.C. § 227(b)(3)(B), whichever is greater, with a possible trebling under §

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227(b)(3)(C);

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(d)

An award of reasonable attorneys’ fees and costs for Plaintiff and her counsel;

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(e)

Such other and further relief as the Court may deem just and proper.

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Settlement & ADR:
The Parties have had informal discussions regarding potential ADR, but have not yet

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reached agreement on a specific ADR plan for the case, due largely to the early stage of the

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proceedings. The Parties will file a Notice of Need for ADR Phone Conference prior to the Case

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Management Conference.

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Consent to Magistrate Judge for All Purposes:
All Parties do not consent to proceed before a magistrate judge for all purposes.

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-6JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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Other References:
The Parties do not believe this case is suitable for reference to binding arbitration, a

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special master, or the Judicial Panel on Multidistrict Litigation.

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Narrowing of Issues:
The Parties can discuss, through the discovery process and any dispositive motions, the

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potential narrowing of issues. At this stage, it is too early to have a meaningful discussion

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regarding the narrowing of issues.

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Expedited Schedule:
The Parties agree that this case is not suitable for an expedited process or streamlined

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procedures.

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Scheduling:

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The parties propose the following schedule:

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(a)

A trial date of July 1, 2013;

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(b)

Dispositive motions due by February 1, 2013;

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(c)

Motion for class certification due by November 26, 2012;

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(d)

Expert witness disclosures under Fed. R. Civ. P. 26(a)(2) due by July 6, 2012, and

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initial expert reports due by August 6, 2012; rebuttal experts designated by August

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20, 2012, and rebuttal expert reports shall be disclosed by September 19, 2012.

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Expert discovery to be completed by October 19, 2012;

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(e)

Class and merits discovery completed by July 20, 2012; and

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(f)

Amended pleadings due by February 14, 2012.

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Trial:
The Parties anticipate a jury trial that would last approximately three to five days.

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Disclosure of Non-party Interested Entities or Persons:
The Parties have filed their respective Certifications of Interested Entities or Persons.

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-7JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA

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Other Matters:
Other than mediation and the early filing of dispositive motions, Plaintiff does not know

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of any other matter that may facilitate the just, speedy and inexpensive disposition of this matter.

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DATED: August 31, 2011

PERKINS COIE LLP

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By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON

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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.

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DATED: August 31, 2011

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EDELSON MCGUIRE, LLP
By: /s/ Sean P. Reis
SEAN P. REIS

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Attorneys for Plaintiff NICOLE PIMENTAL,
individually and on behalf of all others
similarly situated

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I, Bobbie Wilson, hereby attest, pursuant to N.D. Cal. General Order No. 45, that the
concurrence to the filing of this document has been obtained from each signatory hereto.

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DATED: August 31, 2011

PERKINS COIE LLP

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By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON

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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.

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-8JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA