E.K.D. et al v. Facebook, Inc.

Filing 28

EXHIBIT by Facebook, Inc.. Exhibit to 27 Motion to Stay Declaration of Matthew D. Brown In Support Of Motion To Stay Proceedings Pending Ruling By Mdl Panel On Motion To Transfer. (Attachments: # 1 Exhibit A to Brown Declaration, # 2 Exhibit B to Brown Declaration)(Brown, Matthew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
E.K.D., by her next friend Melissa K.
Dawes, and C.M.D., by his next friend
Jennifer E. DeYong, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

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No: 3:11-cv-00461-GPM-SCW
CLASS ACTION

DECLARATION OF MATTHEW D. BROWN IN SUPPORT OF
MOTION TO STAY PROCEEDINGS PENDING
RULING BY MDL PANEL ON MOTION TO TRANSFER
I, Matthew D. Brown, declare as follows:
1.

I am an attorney licensed to practice law in the State of California, and I am

admitted pro hac vice in the above-captioned matter before this Court. I am a partner with the
law firm of Cooley LLP, attorneys for Defendant Facebook, Inc. (“Facebook”) in this action. I
make this declaration in support of Facebook’s Motion to Stay Proceedings Pending Ruling by
MDL Panel on Motion to Transfer. I have personal knowledge of the facts stated in this
declaration, and if called upon to testify, could and would competently testify thereto.
2.

On August 1, 2011 Facebook filed a motion before the Judicial Panel on

Multidistrict Litigation (the “MDL Panel”) to transfer five actions to a single judge in the
Northern District of California pursuant to 28 U.S.C. Section 1407 (the “MDL Motion”) (MDL
No. 2288). The five actions were: (1) Cohen v. Facebook, Inc., No. 10-cv-05282 (N.D. Cal.)
(“Cohen”); (2) Fraley v. Facebook, Inc., No. 11-cv-01726 (N.D. Cal.) (“Fraley”); (3) Nastro v.
Facebook, Inc., No. 11-cv-02128-FB-ALC (E.D.N.Y.) (“Nastro”); (4) Dawes v. Facebook, Inc.,
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No. 11-cv-00461-GPM (S.D. Ill.) (“Dawes”); and (5) Downey v. Facebook, Inc., No. 11-cv03287 (N.D. Cal.) (“Downey”). Attached hereto as Exhibit A is a true and correct copy of
Facebook’s brief filed in support of the MDL Motion. Attached hereto as Exhibit B is a true and
correct copy of Facebook’s reply brief filed in support of the MDL Motion. On August 16,
2011, the Panel set Facebook’s MDL Motion for hearing on Tuesday, September 27, 2011 in
Philadelphia, Pennsylvania.
3.

The Cohen action was filed on November 22, 2010. On June 28, 2011, the court

in Cohen granted Facebook’s motion to dismiss the initial Class Action Complaint without
prejudice.

On July 18, 2011, the Cohen plaintiffs amended their complaint.

Briefing on

Facebook’s motion to dismiss the First Amended Class Action Complaint was completed on
September 1, 2011. Facebook’s motion was heard and taken under submission by the Court on
September 15, 2011.
4.

In the Cohen action, Facebook served initial and amended responses to plaintiffs’

first set of requests for production (76 requests) on May 19, 2011 and May 23, 2011,
respectively. After the Cohen plaintiffs amended their first set of requests for production, on
June 27, Facebook served responses to plaintiffs’ amended first set of requests for production
(still 76 requests). On June 30, 2011, Facebook served initial responses to plaintiffs’ first set of
interrogatories (13 interrogatories).

On July 5, 2011, Facebook served initial responses to

plaintiffs’ second set of requests for production (9 requests). Earlier this month, I had several
telephone and email communications with counsel for the Cohen plaintiffs to meet and confer
regarding Facebook’s responses to the Cohen discovery requests. Facebook agreed to provide by
September 9, 2011—and did so provide—amended responses to the first set of interrogatories
and second set of requests for production. Facebook also agreed to produce the first and second

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tranches of responsive documents to the Cohen plaintiffs in September. Facebook also agreed to
schedule depositions in October 2011 in response to the Cohen plaintiffs’ notice of Rule 30(b)(6)
“person most knowledgeable” deposition calling for testimony on 27 topics.
5.

The Fraley action was filed on March 11, 2011. On March 18, 2011, the Fraley

plaintiffs amended their complaint. Facebook filed a motion to dismiss on May 18, 2011. The
Fraley plaintiffs amended their complaint again on June 6, 2011. Briefing is now complete on
Facebook’s motion to dismiss the Second Amended Class Action Complaint, which is scheduled
to be heard before Judge Koh on September 29, 2011.
6.

The plaintiffs in Fraley have served the following discovery: (1) five sets of

Requests for Admission containing a total of 53 requests; (2) five sets of Requests for Production
of Documents containing a total of 63 requests; (3) one set of Interrogatories containing 15
questions; and (4) five notices of Rule 30(b)(6) “person most knowledgeable” depositions calling
for witnesses prepared to testify on Facebook’s collective knowledge on 50 topics.

After

meeting and conferring with Facebook, Plaintiffs thereafter took the Rule 30(b)(6) depositions
off calendar. On August 12, 2011, the plaintiffs re-noticed their Rule 30(b)(6) depositions, this
time issuing six notices calling for “person most knowledgeable” depositions on 39 topics for
September 2011. Depositions on most of these topics are scheduled to begin on September 20,
2011. Facebook has served responses to the Fraley plaintiffs’ requests for admission, requests
for production, and interrogatories.
7.

The Dawes action was filed in this Court on June 1, 2011. Neither party has

served any discovery in this action.
8.

The Downey action was filed on July 5, 2011. On August 19, 2011, the Downey

plaintiffs voluntarily dismissed their complaint.

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9.

The Nastro action was filed on May 3, 2011. On August 4, 2011, the Nastro

plaintiffs voluntarily dismissed their complaint.

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed this day, the 21st of September, 2011, in San Francisco, California.

________________________________
/s/ Matthew D. Brown
Matthew D. Brown (admitted pro hac vice)

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Certificate of Service
I hereby certify that on September 21, 2011, I electronically filed the foregoing document
with the Clerk of Court using the CM/ECF system, which will send notifications of such filings
to the following:
Attorneys for Plaintiffs
Aaron M. Zigler
Steven A. Katz
KOREIN TILLERY
One U.S. Bank Plaza
505 North 7th Street, Suite 3600
St. Louis, MO 63101-1625
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Dated: September 21, 2011

/s/ Matthew D. Brown
_____________________________________
Matthew D. Brown

COOLEY LLP
MICHAEL G. RHODES (admitted pro hac vice)
([e-mail])
MATTHEW D. BROWN (admitted pro hac vice)
([e-mail])
JEFFREY M. GUTKIN (admitted pro hac vice)
([e-mail])
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
CHARLES SWARTWOUT
([e-mail])
BOYLE BRASHER LLC
5000 West Main Street
P.O. Box 23560
Belleville, IL 62223
Telephone: [phone]
Attorneys for Defendant FACEBOOK, INC.

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