Campbell et al v. Facebook Inc.

Filing 130

Discovery Order re: Dkt. Nos. 112 , 113 , 122 . Signed by Judge Maria-Elena James on 10/14/2015. (mejlc2S, COURT STAFF) (Filed on 10/14/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MATTHEW CAMPBELL, et al., 7 Case No. 13-cv-05996-PJH (MEJ) Plaintiffs, 8 DISCOVERY ORDER v. Re: Dkt. Nos. 112, 113, 122 9 FACEBOOK INC., 10 Defendant. United States District Court Northern District of California 11 12 INTRODUCTION 13 The parties in this putative privacy class action recently filed three Joint Discovery Letters 14 15 outlining various disputes. Dkt. Nos. 112, 113, 122. In the first Letter, they dispute whether 16 Defendant Facebook, Inc. must produce documents regarding how it monetarily values 17 information obtained by allegedly scanning putative class members‘ private Facebook messages. 18 Dkt. No. 112 (―RFP Ltr.‖). In their second Letter, they dispute whether Facebook must produce 19 an interrogatory response and related documents about how Facebook processes users‘ private 20 messages. Dkt. No. 113 (―Rog/RFP Ltr.‖). The Court held a telephonic hearing on these matters 21 on September 29, 2015. Dkt. No. 118. Subsequently, the parties filed an additional letter 22 disputing whether Plaintiffs may take Facebook‘s Rule 30(b)(6) deposition concerning certain of 23 its interrogatory responses. Dkt. No. 122 (―Dep. Ltr.‖). Having considered the parties‘ positions, 24 relevant legal authority, and the record in this case, the Court issues the following Order.1 25 26 27 28 1 The parties have also filed five Administrative Motions to Seal various documents related to the Discovery Letters discussed in this Order. See Dkt. Nos. 110, 111, 121, 125, 127. The Court‘s Order on those Motions is forthcoming. In the meantime, to the extent the Court cites or references certain portions of the redacted documents in this Order, the Court has already determined that those portions of the redacted documents are not properly sealed. BACKGROUND 1 Plaintiffs allege that Facebook ―has systematically intercepted Facebook users‘ private 2 3 Facebook messages without their consent[,]‖ in violation of the Electronic Communications 4 Privacy Act (―ECPA‖ or the ―Wiretap Act‖) and the California Invasion of Privacy Act (―CIPA‖). 5 Consol. Am. Compl. (―CAC‖) ¶ 1, Dkt. No. 25. 6 According to Plaintiffs, whenever a private Facebook message contains a Uniform 7 Resource Locator (―URL‖), Facebook uses a software application called a ―web crawler‖ to scan 8 the URL. Id. ¶ 25. Plaintiffs allege that ―when their ostensibly private messages contained links 9 to other websites, . . . Facebook scanned those messages and then analyzed the URL in the link.‖ Id. ¶ 4. If the website contained a Facebook ―Like‖ button,2 Facebook treated the content of 11 United States District Court Northern District of California 10 Plaintiffs‘ private messages as an endorsement of the website, adding up to two ―Likes‖ to the 12 page‘s count.‖ Id. ¶¶ 4, 25-27. Plaintiffs further allege that ―Facebook retains the user data it has 13 collected, including the ―Likes‖ assigned through intercepting users‘ private messages.‖ Id. ¶ 52. 14 They allege Facebook uses the data it collects during a scan of a private message for other 15 purposes including, among others, enhancing its targeted advertising efforts. Id. ¶¶ 30, 49-51. 16 Plaintiffs seek to represent a class of ―all natural-person Facebook users located within the United 17 States who have sent or received private messages that included URLs in their content, from 18 within two years before the filing of this action up through and including the date when Facebook 19 ceased its practice.‖ Id. ¶ 59. The deadline to file the class certification and summary judgment motions is November 20 21 15, 2013. Dkt. No. 117. LEGAL STANDARD 22 Federal Rule of Civil Procedure 26 provides that a party may obtain discovery ―regarding 23 24 any nonprivileged matter that is relevant to any party‘s claim or defense.‖ Fed. R. Civ. P. 25 26 27 28 2 Certain third-party websites contain a Facebook ―Like‖ button, which is a Facebook ―social plugin‖ that allows the website‘s visitors to interact with Facebook. CAC ¶ 26. Facebook‘s ―Like‖ plugin allows visitors to see how many users have clicked a button indicating they ―Like‖ the page or have shared it with their friends, essentially measuring the page‘s popularity. Id. ¶ 32. 2 1 26(b)(1). ―Relevant information need not be admissible at the trial if the discovery appears 2 reasonably calculated to lead to the discovery of admissible evidence.‖ Id. A court ―must limit 3 the frequency or extent of discovery otherwise allowed by [the Federal] rules‖ if ―(i) the discovery 4 sought is unreasonably cumulative or duplicative, or can be obtained from some other source that 5 is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had 6 ample opportunity to obtain the information by discovery in the action; or (iii) the burden or 7 expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, 8 the amount in controversy, the parties‘ resources, the importance of the issues at stake in the 9 action, and the importance of the discovery in resolving the issues.‖ Fed. R. Civ. P. 26(b)(2)(C). ―The court may, for good cause, issue an order to protect a party or person from 10 United States District Court Northern District of California 11 annoyance, embarrassment, oppression, or undue burden or expense,‖ including by (1) prohibiting 12 disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3) 13 preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to 14 certain matters. Fed. R. Civ. P. 26(c)(1). ―Rule 26(c) confers broad discretion on the trial court to 15 decide when a protective order is appropriate and what degree of protection is required.‖ Seattle 16 Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). DISCUSSION 17 18 19 A. Interrogatory No. 8 and Request for Production No. 41 The first dispute concerns Interrogatory No. 8 of Plaintiffs‘ Second Set of Interrogatories 20 and Request for Production of Documents (―RFP‖) No. 41. Interrogatory No. 8 asks Facebook to 21 Identify all facts relating to the Processing of each Private Message sent or received by Plaintiffs containing a URL, including, for each Private Message: (A) all Objects that were created during the Processing of the Private Message, including the (id) and the Object Type for each Object, as well as any Key -> Value Pair(s) contained in each Object; (B) all Objects that were created specifically when the embedded URL was shared, including the (id) and the Object Type for each Object, as well as any Key -> Value Pair(s) contained in each Object; (C) all Associations related to each Private Message, identified by the Source Object, Association Type, and 22 23 24 25 26 27 28 3 Destination Object, as well as any Key -> Value Pair(s) contained in each Association; (D) the database names and table names in which each Association and Object is stored; (E) each application or feature in Facebook that uses the Objects or Associations created for each Private Message; and (F) how each Object associated with the Private Message was used by Facebook. 1 2 3 4 5 6 Dkt. No. 113-1 at 9-10 (Plaintiffs‘ Second Set of Interrogatories). Plaintiffs generally define 7 ―Objects and Associations‖ as ―metadata structures that Facebook generates to catalog its users‘ 8 online activity.‖ Rog/RFP Ltr. at 2 n.1. Plaintiffs‘ RFP No. 41 seeks ―[a]ll Documents and 9 [electronically stored information (―ESI‖)] relied upon, reviewed, or referenced by [Facebook] in 10 answering Interrogatory No. 8.‖ Dkt. No. 113-2 at 8. United States District Court Northern District of California 11 After meeting and conferring with Facebook, Plaintiffs narrowed the requests to focus on 12 only 19 private messages, communicated by the named Plaintiffs; Facebook searched for the 13 specified messages, but located only 16 of them. Rog/RFP Ltr. at 1-2.3 On September 1, 2015, 14 Facebook produced documents in response to Plaintiffs‘ requests. Dkt. No. 113-5. Plaintiffs 15 consider Facebook‘s production inadequate and unresponsive. Rog/RFP Ltr. at 2-3. First, they 16 assert Facebook ―wholly ignored‖ Interrogatory No. 8 and instead provided only an ―assortment of 17 printouts from unidentified databases,‖ which ―lack the necessary context and breadth to properly 18 answer Plaintiffs‘ Interrogatory.‖ Id. at 3. Second, they object to Facebook narrowing its 19 responses to only a ―subset‖ of their requests; specifically, Facebook only provided responses 20 related to Objects and Associations created from URLs present in Plaintiffs‘ messages, excluding 21 other content. Id. Third, they contend Facebook has refused to provide the names of the databases 22 and tables in which the Objections and Associations are stored. Id. Fourth, they assert Facebook 23 has provided no documents that respond to Plaintiffs‘ request that Facebook identify how it uses 24 these Objections and Associations. Id. Finally, Facebook‘s current production describes other 25 documents that may serve as explanatory or reference materials for interpreting the documents 26 produced thus far. Id. Plaintiffs contend they are entitled to all the foregoing information. 27 3 28 Facebook indicated it is unable to find the remaining three messages identified by Plaintiffs (Rog/RFP Ltr. at 4); its counsel confirmed this at the hearing. 4 1 Facebook objects and refuses to produce more or different documents, asserting that 2 Plaintiffs‘ requests are irrelevant, overbroad, and burdensome. Id. at 3-5. Its primary objection 3 appears to be that ―Facebook has in fact already produced the information that is relevant to 4 Plaintiffs’ claims‖ in the form of the source code, which demonstrates how Facebook scans users‘ 5 messages. Id. at 4-5 (emphasis in original). Specifically, Facebook agreed to produce ―all source 6 code related to the private message function from creation through end storage, including any 7 scanning or acquisition of private message content and any data structures that connect or 8 associate users to messages or message content, and messages to attachments or URLs.‖ Id. at 2 9 (emphasis omitted); see Dkt. No. 92 (Order granting stipulation for production of source code). Plaintiffs argue that what they currently seek—the information relating to the Objects and 11 United States District Court Northern District of California 10 Associations created from Plaintiffs‘ private messages—is a ―corollary‖ to the source code. Id. 12 They explain that while ―[t]he source code enables Plaintiffs to understand the processes Facebook 13 employs for its messaging functionality, . . . . Plaintiffs wish to learn what specific data was 14 generated by Facebook . . . and how that data was used and stored.‖ Id. (emphasis in original). 15 Facebook also argues it has already produced the Objects and Associations relevant to 16 Plaintiffs‘ allegation of scanning of URLs to increase the ―Like‖ count on webpages. Id. at 4. 17 Facebook states that ―Plaintiffs‘ Complaint challenges a very specific practice—namely, the 18 alleged ‗scanning‘ of URLs sent in ‗private messages‘ to increase the ‗like‘ counter on third-party 19 websites before the end of 2012.‖ Id. (emphasis omitted). Facebook also points to Plaintiffs‘ 20 proposed class definition, which is limited to ―Facebook users located within the United States 21 who have sent or received private messages that included URLs.‖ Id. (emphasis omitted); CAC 22 ¶ 59. Facebook thus argues Plaintiffs‘ request for ―the production of any ‗objects‘ and 23 ‗associations‘ related to these [19] messages,‖ not just those related to URLs contained in those 24 messages, has ―no conceivable relevance to Plaintiffs‘ allegations of ‗scanning‘ URLs to increase 25 the ‗like‘ counter.‖ Id. (emphasis in the original). 26 In response, Plaintiffs assert their requests ―are narrowly tailored to provide specific 27 examples of how Facebook‘s message-scanning practices work, complementing the source code 28 already provided by Facebook.‖ Id. at 3. They further contend the ―information not only allows 5 1 Plaintiffs to determine the extent to which their message content was acquired, stored and used, 2 but also to measure these data points against Facebook‘s defenses that all message scanning and 3 content acquisition at issue was conducted within the ordinary course of its business.‖4 Id.; see 4 also Answer to CAC, Dkt. No. 53 at 22. Facebook has indicated it intends to seek summary 5 judgment based on its ordinary course of business defense. See Jt. Case Management Statement at 6 4-7, Dkt. No. 60. Finally, Facebook objects on grounds that ―much of the information [sought] is not 7 8 accessible without undue burden.‖ Rog/RFP Ltr. at 5. Facebook contends that ―[e]xtracting the 9 data comprising objects and associations into producible form [is something] Facebook‘s systems were never designed to do;‖ and that ―Facebook‘s there is no readily identifiable list of th[e] 11 United States District Court Northern District of California 10 information‖ sought in subparts (E) and (F) of Interrogatory No. 8. Id. at 4-5. Consequently, 12 Facebook asserts its ―busy and valuable technical employees must take considerable time away 13 from their normal job duties to search for information that is not readily accessible (if it is 14 accessible at all)[.]‖ Id. at 5. During the telephonic hearing, the Court discussed the burden issue with the parties and 15 16 ultimately permitted Facebook to submit a declaration explaining the burden to Facebook in 17 18 19 20 21 22 23 24 25 26 27 28 4 Judge Hamilton‘s Order on Facebook‘s Motion to Dismiss the CAC describes the ordinary course of business defense: The Wiretap Act defines ―intercept‖ as ―the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.‖ 18 U.S.C. § 2510(4). The statute then further defines ―electronic, mechanical, or other device‖ as ―any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than‖ a device or apparatus that is ―being used by a provider of wire or electronic communication service in the ordinary course of its business.‖ 18 U.S.C. § 2510(5). Essentially, the Wiretap Act creates an exception for interceptions conducted by an electronic communications service provider occurring in ―the ordinary course of its business.‖ Dkt. No. 43 at 6. The Order further notes the Wiretap Act‘s ordinary course of business ―exception must cover more than just ‗necessary‘ activities, . . . there [also] must be ‗some nexus between the need to engage in the alleged interception and the subscriber‘s ultimate business, that is, the ability to provide the underlying service or good.‘‖ Id. at 11-12 (citations omitted). 6 producing this information. Facebook submitted the declaration of its Engineering Manager and 2 declarant, Dale Harrison. See Harrison Decl., Dkt. No. 125-3.5 Harrison states that ―over the 3 course of August and September, I estimate that I spent more than 25 hours writing new code and 4 conducting the manual searches and extractions.‖ Id. at 6. He posits that production of all the 5 Objects related to the 16 identified private messages ―is likely impossible.‖ Id. He also explains 6 the process he would undertake in order to comply with Plaintiffs‘ request. Id. He explains that to 7 comply, it may require consulting with former and present Facebook engineers to find out what 8 Objects can be generated by their work, determining where in the Facebook system each of these 9 types of Objects may exist, and assessing what functions and tools are available for searching, 10 locating, and extracting each Object type. Id. Harrison‘s ―best estimate is that . . . it could take 11 United States District Court Northern District of California 1 hundreds of man hours‖ to complete this process. Id. There is no indication approximately how 12 much this would cost. Having considered the foregoing arguments and carefully reviewed the supportive 13 14 documents, the Court finds Facebook must produce the requested discovery. First, the 15 information requested goes not only to Plaintiff‘s affirmative claims, but also Facebook‘s 16 defenses. As Facebook outlines in its portion of the Joint Case Management Statement, the legal 17 issues in this case include: (1) ―[W]hether Facebook unlawfully ‗redirected‘ the content of 18 plaintiffs‘ private messages[;]‖ (2) ―Whether any alleged ‗interception‘ occurred while the 19 messages were ‗in transit‘‖[; and] (3) ―Whether the ‗ordinary course of business‘ exemption bars 20 Plaintiffs‘ Wiretap Act claim[.]‖ Jt. Case Management Statement at 7 (quoting Order re: Mot. to 21 Dismiss, Dkt. No. 43 (some internal marks omitted)). Plaintiffs‘ Interrogatory No. 8 and related 22 RFPs seek information about ―how Facebook‘s message-scanning practices work,‖ not only to 23 support their own claims but also to respond to Facebook‘s defenses, including its ordinary course 24 of business defense and representations about when the alleged interceptions occurred.6 Plaintiffs 25 26 27 5 Docket number 125-3 is the redacted version of Dale Harrison‘s Declaration. The unredacted version is found at docket number 125-2. 6 28 Facebook redacted its portion of the discovery letter that describes how it processes URLs in users‘ private messages. See Rog/RFP Ltr. at 4. 7 1 specifically allege that ―Facebook intercepted electronic communications sent by and to Plaintiffs 2 and Class Members (a) for undisclosed purposes; (b) for the purpose of generating ‗Likes‘ for 3 third-party websites; (c) for purposes of providing web traffic data to third parties; (d) for purposes 4 of cataloging user data; (e) for purposes beyond facilitating private messages sent via Facebook;‖ 5 and they allege ―[t]hese activities are not within the ordinary course of business of a provider of an 6 electronic communication service.‖ CAC ¶ 86. Plaintiffs‘ Interrogatory and RFP appropriately 7 seek discovery tuned to this and related allegations. 8 Second, while in some cases the production of certain discovery will negate the need for further unnecessary discovery on the same issue, the Court does not find these discovery requests 10 redundant or superfluous. Facebook may be correct that the source code it has already produced 11 United States District Court Northern District of California 9 may provide much of the discovery Plaintiffs seek. See Harrison Decl. at 6 (―[T]he 12 comprehensive record of Facebook functions that used any given Object or Association type at 13 any given time is Facebook‘s source code.‖). But as Plaintiffs note elsewhere, ―[t]he source code 14 at issue consists of over 10 million lines[,]‖ Dep. Ltr. at 3, and Facebook‘s own declarant explains 15 that it ―would be exceedingly burdensome to review the source code in its entirety—to develop a 16 list of all possible uses of Objects and Associations.‖ Harrison Decl. at 6-7. But seemingly this is 17 what Facebook wishes Plaintiffs to do, instead of working together to more efficiently locate and 18 uncover the information. Furthermore, Facebook‘s responses to Plaintiffs‘ Interrogatory No. 8 19 and RFP No. 41 can be used differently than information obtained from the source code. Among 20 other things, in answering an interrogatory, a party makes that answer ―in writing under oath.‖ 21 Fed. R. Civ. P. 33(b)(3). Rather than having experts duel over technical coding, Plaintiffs can use 22 a sworn interrogatory response in conjunction with related documents to show Facebook‘s actions. 23 Finally, the Court is not persuaded by Facebook‘s burden argument. First, twenty-five 24 hours of work over the course of two months does not constitute an undue burden. See, e.g., 25 Thomas v. Cate, 715 F. Supp. 2d 1012, 1033 (E.D. Cal. 2010) (collecting cases and finding 111 26 hours to conduct data review in response to interrogatory did not amount to undue burden); Pham 27 v. Wal-Mart Stores, Inc., 2011 WL 5508832, at *5 (D. Nev. Nov. 9, 2011) (document request 28 requiring 56 hours to review files did not constitute undue burden). Moreover, Facebook‘s 8 1 declarant does not describe how those 25 hours were allocated. He does not state, for instance, 2 how much time he spent writing new code versus conducting the searches and extractions or, for 3 that matter, how much time he spent consulting with counsel. 4 Second, he does not explain how much time he realistically believes it will take him to 5 acquire the rest of the information Plaintiffs requested. While Harrison indicates it could take 6 hundreds of hours to find the information Plaintiffs seek because ―there is no search function that 7 returns all Objects for a given user,‖ he also indicates there may be a very simple way of locating 8 and extracting the information sought; specifically, he states that ―if [he] were to learn of an 9 Object type that may exist for these messages, [then] it may be that there is existing search functionality for locating and extracting that Object.‖ Harrison Decl. at 6. Plaintiffs‘ 11 United States District Court Northern District of California 10 Interrogatory No. 8 asks Facebook to tell them what ―Objects that were created during the 12 Processing of the Private Message‖ and what ―Objects that were created specifically when the 13 embedded URL was shared.‖ Rog/RFP Ltr. at 1; Dkt. No. 113-1 at 9-10. By refusing to provide 14 Plaintiffs with a list of Objects, Facebook puts Plaintiffs in a position where they cannot request 15 specific Objects types to locate and extract—which, according to Harrison, may aid him in the 16 locating and extracting those Objects. See Harrison Decl. at 6. Facebook has not said it does not 17 know which Object types exist for its messages, and it seems unlikely Facebook would not 18 possess this information as it created and controls the mechanisms for processing these messages. 19 Thus, while Harrison‘s declaration may raise the question of whether he is the appropriate person 20 to respond to Plaintiffs‘ requests, it does not show Facebook is unduly burdened. If other 21 engineers, etc., know what Objects ―can be generated as a result of their work at Facebook, and 22 whether any of those Objects could be generated from sending a message,‖ those individuals may 23 be the more appropriate persons to address these discovery requests. 24 In sum, it seems there are a number of simple steps Facebook can take to more easily find 25 and extract the information Plaintiffs seek. And even if there are not, Facebook has not 26 demonstrated that its burden outweighs the likely benefit of this information in resolving the 27 issues at stake in this action, and which the parties will in all probability address in their summary 28 judgment and class certification motions. Accordingly, Plaintiffs‘ Motion to Compel Facebook‘s 9 1 responses to Interrogatory No. 8 and RFP No. 41 is GRANTED. 2 B. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 Request for Production Nos. 53-60 The second dispute concerns Plaintiffs‘ Third Set of Requests for Production of Documents, which seek the following: Request for Production No. 53: All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your behalf— whether undertaken or contemplated but not undertaken—to assign a monetary value to Facebook Users (and/or any additional information derived therefrom), or to determine the revenue or profits made from data received or content collected by You from Facebook Users (and/or any additional information derived therefrom). Request for Production No. 54: All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your behalf— whether undertaken or contemplated but not undertaken—to assign a monetary value to the data contained within, or data received or content collected from, Private Messages, and/or any additional information derived therefrom. Request for Production No. 55: All Documents and ESI sufficient to identify the number of web pages with ―Like‖ Social Plugins embedded, by month, during the Relevant Time Period. 16 17 18 19 20 21 22 23 24 25 26 27 28 Request for Production No. 56: All Documents and ESI sufficient to identify the number [of] ―Likes‖ generated, by month, during the Relevant Time Period. Request for Production No. 57: All Documents and ESI sufficient to identify the number of Passive Likes generated, by month, during the Relevant Time Period. Request for Production No. 58: All Documents and ESI related to any analysis—for internal or external use—correlating the acquisition of ―Likes‖ by Third Parties and the advertising spend of those Third Parties on Facebook ad buys. Request for Production No. 59: All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your behalf— whether undertaken or contemplated but not undertaken—to assign a monetary value to the presence of a ―Like‖ Social Plugin on a Third-Party website, or to determine the value of data received or content collected from the presence of a ―Like‖ Social Plugin on a Third-Party website (and/or any additional information derived therefrom), or to determine the revenue or profits made from the 10 1 2 3 4 5 presence of a ―Like‖ Social Plugin on a Third-Party website (and/or any additional information derived therefrom). Request for Production No. 60: All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your behalf— whether undertaken or contemplated but not undertaken—to increase and/or maximize the presence of the [―]Like[‖] Social Plugin on Third Party websites. 6 Dkt. No. 112-1 at 8-9. In response, Facebook (1) agreed to produce responsive documents to RFP 7 Nos. 55 and 57; (2) objected to but offered to meet and confer on RFP Nos. 53-54 and 59; and (3) 8 objected to RFP Nos. 56, 58, and 60. RFP Ltr. at 1. Facebook later informed Plaintiffs that after a 9 reasonable search and diligent inquiry, it was unable to locate any responsive documents to RFP Nos. 55 and 57 during the relevant time period. Id. Plaintiffs contend Facebook has not produced 11 United States District Court Northern District of California 10 any responsive documents. Id. at 1-2. 12 Plaintiffs‘ RFP Nos. 53-60 seek ―to discover how Facebook generates profits in order to 13 analyze the role played by private messages, social plugins, and Likes, and, specifically, the 14 interception of private messages, generation of passive Likes, and derivative activities, in 15 Facebook‘s income stream.‖ Id. at 2. With such information, ―Plaintiffs could accurately model 16 the profits attributable to the challenged conduct,‖ which ―is relevant to determine the proportion 17 of Facebook‘s profits attributable to generating Passive Likes through the alleged ECPA 18 violations.‖ Id. at 2-3. Plaintiffs contest Facebook‘s representation that there are no documents 19 that answer the RFPs, maintaining ―[t]here is every reason to believe that responsive documents 20 exist,‖ due in part to Facebook Engineer Alex Himel‘s June 2015 declaration, which explains how 21 Facebook altered some of its code to collect certain related information. Id. Plaintiffs insist ―[a] 22 good-faith search . . . would provide documents showing how Facebook categorizes‖ data related 23 to their requests. Id. at 2. Moreover, Plaintiffs assert that ―[e]ven if . . . Facebook never directly 24 evaluated the independent worth of its users, Passive Likes, or private messages . . ., the 25 information to ascertain Facebook‘s profits from scanning private messages, logging URLs within, 26 and generating Likes[] can be determined with expert analysis.‖ Id. at 3. 27 Facebook objects to Plaintiffs‘ requests on two grounds: first, Facebook contends 28 Plaintiffs‘ requests go beyond the ―District Court‘s clear instruction at the March 12, 2015 case 11 1 management conference that the parties should focus their discovery efforts on issues relevant to 2 class certification and the open issues from the Court‘s motion-to-dismiss order.‖ Id. at 4. 3 Second, Facebook asserts ―Plaintiffs‘ stated purpose behind RFPs 53-60 . . . is fundamentally 4 flawed and overbroad‖ because they ―are not entitled to documents about how Facebook 5 ‗generates profits,‘‖ but only ―documents . . . relevant to their specific claims and the permissible 6 damages under those claims.‖ Id. Facebook contends it has ―already conducted a reasonable 7 search and diligent inquiry‖ for what it views as responsive documents related to RFP Nos. 54, 55, 8 and 57, but it states it was unable to locate any responsive documents. Id. at 4-5. It asserts, 9 despite Plaintiffs‘ contention, that such documents exist is ―speculation.‖ Id. at 5. As to RFP Nos. 53, 56, 58-60, Facebook insists such requests are unrelated to Plaintiffs‘ claims or potential 11 United States District Court Northern District of California 10 recoverable damages. Id. As noted, Facebook has not produced any documents in response to 12 these RFPs. Id. at 1-2. 13 As an initial matter, to the extent Facebook argues such discovery is premature, the Court 14 disagrees. The District Court‘s Case Management Conference Minute Entry provides that both 15 class certification and summary judgment motions shall be filed contemporaneously and reiterated 16 this in its latest Order altering the filing deadlines for these motions. See Dkt. Nos. 62, 117. Both 17 motions have the potential to consider and test Plaintiffs‘ theories of relief, whether they have 18 sufficient evidence to support the elements of their claims, and their methodology for determining 19 class-wide relief. Consequently, this discovery is not premature. 20 Second, Facebook has not shown why Plaintiffs‘ requests are overbroad or irrelevant. As 21 Plaintiffs point out, this suit arises under ECPA and CIPA, and Plaintiffs seek all available relief. 22 RFP Ltr. at 2 and 4 n.5. CIPA provides for actual damages, or statutory damages of $5,000. Cal. 23 Penal Code § 637.2. ECPA provides for ―appropriate relief,‖ including (1) ―the sum of the actual 24 damages suffered by the plaintiff and any profits made by the violator as a result of the violation‖; 25 (2) statutory damages of $10,000 or $100 per day of violation; and/or (3) other equitable relief ―as 26 may be appropriate.‖ 18 U.S.C. § 2520(b)-(c). Thus, profits made as a result of the violation may 27 be recoverable. 28 Facebook, however, represents it has found no documents showing how it directly profited 12 1 from the alleged interceptions, indicating that no such information exists. RFP Ltr. at 4. 2 Seemingly, because Facebook located no information it viewed as on point, Facebook now 3 believes it should not have to produce any other information. But as Plaintiffs point out, even 4 though Facebook itself may not have determined the independent value or profits it obtained from 5 scanning private messages, expert analysis of the information Plaintiffs seek may assist them in 6 making that determination, which in turn could assist in establishing a model or methodology for 7 class-wide relief. Id. at 3. Although Facebook argues RFP Nos. 53, 56, 58, 59, and 60 are 8 overbroad, they are connected to the conduct Plaintiffs challenge, namely the scanning of putative 9 class members‘ private messages and the potential benefit Facebook receives as a result of obtaining information from those messages, including URL data that converts to ―Likes‖ on 11 United States District Court Northern District of California 10 corresponding webpages. Plaintiffs allege that Facebook then uses the data to enhance its targeted 12 advertising efforts, among other things. CAC ¶¶ 30, 49-51. While in a footnote Facebook argues 13 its advertising revenues are irrelevant, Ltr. at 5 n.8, as indicated, Plaintiffs have raised targeted 14 advertising as one of the potential benefits Facebook receives as a result of scanning users‘ private 15 messages.7 Otherwise, given (1) Facebook‘s representation that it has not itself determined a 16 method of valuing profits obtained from scanning users‘ private messages, and (2) that Facebook 17 has not suggested an alternative way of producing information to assist Plaintiffs with obtaining 18 that basic information they seek, the Court finds it reasonable that Plaintiffs should be permitted 19 somewhat broader discovery to be able to establish a model or methodology for class-wide relief. Accordingly, Plaintiffs‘ Motion to Compel Facebook‘s responses to RFP Nos. 53-60 is 20 21 GRANTED. 22 C. Request for 30(b)(6) Deposition Regarding Facebook’s Source Code The last dispute between the parties involves Plaintiffs‘ Rule 30(b)(6)8 deposition notice, 23 24 7 25 26 27 28 See also Order re: Mot. to Dismiss at 10-11 (acknowledging Plaintiffs‘ allegations regarding targeted advertising and finding ―it problematic that Facebook is attempting to have it both ways by maintaining that plaintiffs‘ advertising-related allegations lack any factual basis, . . . but then using those largely-removed allegations to invoke the ‗ordinary course of business‘ exception.‖). 8 Federal Rule of Civil Procedure 30(b)(6) provides in relevant part: In its notice or subpoena, a party may name as the deponent a public 13 1 which asks Facebook to designate a corporate representative to testify upon, among other things, 2 the following topics: 3 (1) The identification of Facebook source code utilized to carry out each process characterized in Facebook‘s Responses and Objections to Plaintiffs‘ Interrogatories (―Resp.‖), Interrogatories No. 2 and 3.‖ (―Topic One‖); and 4 5 (2) The identification of Facebook source code utilized to carry out each process characterized in Facebook‘s Responses and Objections to Plaintiffs‘ Interrogatories (―Resp.‖), Interrogatory No. 4.‖ (―Topic Two‖) 6 7 8 Dep. Ltr. at 1.9 During the parties‘ meet and confer, Facebook asserted that Topics One and Two 9 were improper and that it would not produce a deponent on those topics. Id. Shortly after, Plaintiffs‘ counsel proposed, in lieu of a 30(b)(6) deposition, that Facebook allow Plaintiffs to run 11 United States District Court Northern District of California 10 Facebook‘s source code in an ―Integrated Development Environment‖ (―IDE‖), suggesting that an 12 IDE would enable Plaintiffs to see the full process that Facebook undertakes when a user 13 composes and sends a private message. Id. Facebook subsequently informed Plaintiffs that their 14 suggestion to run Facebook‘s source code in an IDE had no precedent and that it stood on its 15 objection to designating a witness for Topics One and Two. Id. On September 18, Plaintiffs 16 17 or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. . . . The persons designated must testify about information known or reasonably available to the organization. . . . 18 19 20 21 22 23 24 25 26 27 28 9 Interrogatory No. 2 requests Facebook to ―Identify by name, purpose, sequence, function and physical location each Process and/or piece of Architecture involved in Private Message Transmission.‖ Interrogatory No. 3 states: ―For each Process and/or piece of Architecture identified in Interrogatory No. 2, identify whether – and the manner in which – such Process and/or piece of Architecture scans, analyzes, or extracts Private Message Content.‖ Interrogatory No. 4 requests ―For each Process and/or piece of Architecture identified in Interrogatory No. 3, identify all uses to which the scanned/analyzed/extracted Private Message Content – as well as any additional data, metadata or other content generated therefrom – are put.‖ See Dkt. No. 121-4. 14 1 served their Rule 30(b)(6) deposition notice (Dkt. No. 122-1), and on September 22, Facebook 2 served its Responses and Objections to the Notice (Dkt. No. 122-2). Id. 3 Once again, Facebook falls back on the position that it has already produced the source 4 code and therefore does not need to produce anything more. Id. at 4. Facebook also argues it 5 provided the declaration from a senior Facebook Engineering Director, Alex Himel, which it 6 asserts ―explained the processes at issue and attached key technical documents explaining the 7 relevant portions of the source code[,]‖ as well as detailed responses to Plaintiff‘s First Set of 8 Interrogatories, ―which provide a narrative description of how the challenged practice operated.‖ 9 Id. Facebook urges the Court to deny Plaintiff‘s 30(b)(6) deposition request, asserting ―[t]he emerging pattern in this case is that Plaintiffs never will be satisfied. When Plaintiffs demanded 11 United States District Court Northern District of California 10 Facebook‘s source code, Facebook explained the technology in lieu of producing it. Plaintiffs 12 insisted that they have the source code itself, so Facebook ultimately produced it. But now, 13 Plaintiffs demand a Rule 30(b)(6) witness to explain it.‖ Id. at 5 (emphasis in original). Facebook 14 asserts, without citations, that ―[t]he law is clear: Plaintiffs cannot shift their burden of analyzing 15 the source code they insisted they needed to Facebook or insist that Facebook prepare a witness on 16 such burdensome, overbroad topics.‖ Id. at 4. 17 Facebook‘s argument that Plaintiffs already have all they need—the source code—and that 18 Facebook is not required to produce anything more is belied by two things. First, Facebook‘s own 19 declarant has acknowledged that reviewing the entire source code is ―exceedingly burdensome,‖ 20 see Harrison Decl. at 6-7, and if Facebook, as the code‘s developer, has so much difficulty 21 analyzing this data, the burden on Plaintiffs to do the same is conceivably much greater. Thus, the 22 Court does not currently find evidence that Plaintiffs are ―manufacturing disputes‖ to increase the 23 costs and burden of this litigation as Facebook asserts. See id. at 5. 24 Second, as the Court discussed above in relation to Facebook‘s objections to Plaintiffs‘ 25 Interrogatory No. 8 and RFP 41, different types of discovery address different concerns. While 26 Facebook may have provided detailed responses to Plaintiffs‘ interrogatories and submitted the 27 declarations of Facebook employees describing how its private message processing works, 28 Plaintiffs have a right to verify and explore the information Facebook provided through a 30(b)(6) 15 deposition, which ―permit[s] the examining party to discover the corporation‘s position via a 2 witness designated by the corporation to testify on its behalf.‖ Estate of Thompson v. Kawasaki 3 Heavy Indus., Ltd., 291 F.R.D. 297, 303 (N.D. Iowa 2013) (quoting LDA v. Virgin Enters. Ltd., 4 511 F.3d 437, 440 n.2 (4th Cir. 2007)); accord Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 5 416, 433 (5th Cir. 2006) (―a rule 30(b)(6) designee . . . presents the corporation‘s ‗position‘ on the 6 topic.‖ (citations omitted)); JSR Micro, Inc. v. QBE Ins. Corp., 2010 WL 1338152, at *11 (N.D. 7 Cal. Apr. 5, 2010) (same); Memory Integrity, LLC v. Intel Corp., ___ F.R.D. ___, 2015 WL 8 4601177, at *3 (D. Or. July 29, 2015) (same). As Plaintiffs point out, Facebook‘s responses to 9 Interrogatory Nos. 2-4 are simply narratives, and Plaintiffs should be ―entitled to test their veracity 10 and accuracy‖ by, for instance, obtaining evidence ―that provides the foundation for any testimony 11 United States District Court Northern District of California 1 characterizing the technical details of the private message process[.]‖ Dep. Ltr. at 2. Indeed, 12 ―[p]arties are entitled to test assertions in questioning witnesses during depositions, and it is 13 fundamental that parties may simultaneously utilize any or all of the discovery mechanisms 14 authorized by the rules.‖ U.S., ex rel. Fry v. Health All. of Greater Cincinnati, 2009 WL 5227661, 15 at *3 (S.D. Ohio Nov. 20, 2009) (citation and internal marks omitted); see also Kress v. 16 Pricewaterhouse Coopers, LLP, 2013 WL 2421704, at *5 (E.D. Cal. June 3, 2013) (noting ―there 17 are strong reasons why a party strategically selects to proceed by oral deposition rather than 18 alternate means, including the spontaneity of witness responses.‖ (citation omitted)). Accordingly, 19 such discovery is not ―wasteful‖ as Facebook suggests but may help the parties and the Court 20 better understand how Facebook‘s private message processing works. Facebook nevertheless contends that asking it to prepare a witness to identify the source 21 22 code related to ―each process,‖ described in its interrogatory responses, which include 10 and 31 23 sub-parts, is an ―impossible task.‖ Dep. Ltr. at 5 (citations omitted). The Court does not find 24 much merit in this argument. On one hand, Facebook (1) tells the Court that its source code 25 provides ―all of the data [Plaintiffs] need‖ to uncover the information they seek (id. at 4)10 and (2) 26 27 28 10 See also Harrison Decl. at 6 (―[T]he comprehensive record of Facebook functions that used any given Object or Association type at any given time is Facebook‘s source code.‖). 16 1 provides thorough, narrative descriptions about how the source code works—evidently written by 2 someone with knowledge of how Facebook processes its messages. But on the other hand, 3 Facebook complains that it could not possibly produce a person (or persons)11 who is, or could be 4 made to be, capable of testifying to this same information. Id. at 5. Facebook‘s positions are in 5 conflict, indicating either that its responses to Interrogatory Nos. 2-4 are not based on knowledge 6 of Facebook‘s source code or that the source code does not in fact provide all the information 7 Plaintiffs seek, underscoring the importance of obtaining more complete information. In either 8 event, without more, the Court cannot find that Facebook is unduly burdened by Plaintiffs‘ 9 30(b)(6) deposition request. Finally, to the extent Facebook contends Plaintiffs‘ deposition notice should be quashed 10 United States District Court Northern District of California 11 because it asks for testimony ―not limited‖ to the listed topics, the Court does not find grounds for 12 doing so at this time. Plaintiffs‘ deposition notice describes with ―reasonable particularity the 13 matters for examination.‖ Fed. R. Civ. P. 30(b)(6). The mere fact that Plaintiffs generically added 14 the phrase ―not limited to‖ to the matters identified does not necessarily mean that it must be 15 quashed. ―The proper scope of the questioning of a Rule 30(b)(6) witness is not defined by the 16 notice of deposition, but by Rule 26(b)(1) of the Federal Rules of Civil Procedure, unless a court 17 otherwise directs.‖ Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 38 (S.D.N.Y. 2009) 18 (citing Emps. Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632, at *1 19 (E.D.N.Y. Apr. 26, 2006)). ―In fact, a notice of deposition . . . constitutes the minimum, not the 20 maximum, about which a deponent must be prepared to speak.‖ Id. (citing Wausau, 2006 WL 21 1120632, at *1 and Detoy v. City & Cty. of S.F., 196 F.R.D. 362, 366 (N.D. Cal. 2000)); see also 22 Am. Gen. Life Ins. Co. v. Billard, 2010 WL 4367052, at *4 (N.D. Iowa Oct. 28, 2010) (adopting 23 ―the majority view‖ that ―the questioning of a Rule 30(b)(6) deponent is not limited to those 24 subjects identified in the Rule 30(b)(6) notice.‖); accord U.S. E.E.O.C. v. Caesars Entm’t, Inc., 25 26 27 28 11 See Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537, 540 (D. Minn. 2003) (―if no person exists who is able to speak, on a corporation‘s behalf, on all of the topics noted in the deposition, the corporation cannot avoid the deposition by such a claim, but must prepare a deponent to testify as to those matters‖ and ―[f]urther, the plain language of the Rule permits a corporation to designate more than one deponent in response to a 30(b)(6) notice.‖ (citations omitted)) 17 1 237 F.R.D. 428, 432 (D. Nev. 2006) (―Most courts have concluded that once the witness satisfies 2 the minimum standard for serving as a designated witness, the scope of the deposition is 3 determined solely by relevance under Rule 26, that is, that the evidence sought may lead to the 4 discovery of admissible evidence.‖ (citations and internal marks omitted)). 5 While this is certainly not an invitation for Plaintiffs to go on a fishing expedition for information unrelated to their listed matters for examination, nothing in the Federal Rules of Civil 7 Procedure requires the Court quash Plaintiffs‘ deposition notice at this time. Cf. Reed v. Bennett, 8 193 F.R.D. 689, 692 (D. Kan. 2000) (quashing a deposition subpoena where ―the defendant 9 c[ould] not identify the outer limits of the areas of inquiry noticed, [as] compliant designation is 10 not feasible‖); see also Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 11 United States District Court Northern District of California 6 1054279, at *4 (D. Kan. Apr. 9, 2007) (finding that where the examining party used the phrase 12 ―including but not limited to,‖ but then followed it with an extensive example list of the records 13 and reports for which information is sought, there can be no claim that the deposed party could not 14 identify the ―outer limits of the areas of inquiry.‖ (quoting Reed, 193 F.R.D. at 692)). 15 16 Accordingly, Plaintiffs‘ Motion to Compel Facebook‘s 30(b)(6) Deposition for Topics 1 and 2, above, is GRANTED. CONCLUSION 17 18 In light of the foregoing, the Court GRANTS Plaintiffs‘ Motions to Compel Facebook‘s 19 responses to Interrogatory No. 8 and RFP Nos. 41, 53-60, as well as its Motion to Compel 20 Facebook‘s Rule 30(b)(6) deposition to testify as to Topics 1-2. Facebook must respond to these 21 requests in accordance with this Order no later than October 28, 2015. Given the impending 22 motions deadlines, the parties may stipulate to Facebook‘s production of other data, documents, or 23 methods of responding to the discovery requests herein in accordance with this Order. They may 24 also stipulate to a different timeline for production. 25 26 27 28 IT IS SO ORDERED. Dated: October 14, 2015 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 18

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