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

Filing 60

AFFIDAVIT re 57 MOTION to Transfer Case (Declaration of Matthew D. Brown in Support of Motion to Transfer) by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Brown, Matthew)

EXHIBIT A

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IN THE DISTRICT OF THE UNITED STATES OF AMERICA
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.
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DeYong, individually and on
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behalf of all others similarly
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situated,
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Plaintiff(s),
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vs.
) Case No. 11-461-GPM-SCW
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FACEBOOK, INC.,
)
)
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Defendant(s).
__________________________________)

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TELEPHONIC STATUS CONFERENCE

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BE IT REMEMBERED AND CERTIFIED that heretofore on 11/22/2011,
the same being one of the regular judicial days in and for the
United States District Court for the Southern District of
Illinois, Honorable Stephen C. Willims, United States District
Judge, presiding, the following proceedings were recorded by
mechanical stenography; transcript produced by computer.

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APPEARANCES:

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FOR PLAINTIFF: Aaron M. Zigler of Korein Tillery - St. Louis,
505 N. 7th Street, Suite 3600, St. Louis, MO 63101

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FOR DEFENDANT: Matthew D Brown of Cooley LLP 101 California
Street, Fifth Floor, San Francisco, CA 94111 and Charles J.
Swartwout of Boyle Brasher LLC - Belleville, 5000 West Main
Street, Post Office Box 23560, Belleville, IL 62223-0560

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REPORTED BY: Molly N. Clayton, RPR, Official Reporter for
United States District Court, SDIL, 750 Missouri Ave., East St.
Louis, Illinois 62201, [phone],
[e-mail]

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Section 3

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November 29th and we will --

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MR. BROWN:

Your Honor?

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THE COURT:

Yes.

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MR. BROWN:

Could I just raise one additional thing?

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I apologize.
THE COURT:

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Absolutely.

MR. BROWN:

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The one issue that I sort of have raised

No.

No, that's fine.

That's

fine.

with Mr. Zigler, we have -- we have sort of asked for -- to get

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the user IDs and the like for the named plaintiffs.

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give you just a little bit of background on that, up until now,

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I mean, including right now, the named plaintiffs have only

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been identified in the complaint and any other communications

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by their initials.

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And to

So we literally have never received any sort of

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confirmation on exactly who the named plaintiffs are that are

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on the other side this litigation.

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our discovery request, which the responses aren't due yet,

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we've asked for information regarding the Facebook user IDs.

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Every Facebook user is given just like a unique ID number.

And what we had asked in

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THE COURT:

Mmm hmm.

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MR. BROWN:

And so I've asked for the user ID, any

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special kind of user name that the named plaintiffs used, and

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their e-mail address that they used to create the account or

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that's on the account, just so we have like the most

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fundamental fact, which is, exactly who are the plaintiffs, and

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so we can start going back and confirming that they're actually

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Facebook users and we know what accounts we're talking about

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and how they've used the site and whatnot.

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So it's a -- it's a pretty fundamental piece of

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information, and we literally are at the -- at the point in the

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litigation now where we -- where we just still don't know

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exactly, haven't been able to confirm who the identities are of

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named plaintiffs.

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So I would appreciate getting that information, even

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in advance of the discovery responses.

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raise the issue since we had this status conference today.

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It's something that I've asked for from Mr. Zigler, but I'm not

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exactly sure what his position is on it.

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THE COURT:

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MR. ZIGLER:

And I just wanted to

Mr. Zigler?
Well, your Honor, I'll start with saying

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this isn't an easy issue.

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asked us informally for that and formally in our -- in his

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discovery requests.

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Mr. Brown is correct in that he has

With respect to confirmation about, you know, how the

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kids use their Facebook page and other issues, I mean, that's

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going to come with our response to discovery.

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asked for everything under the sun.

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to the discovery request that will more than confirm the kids'

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use of Facebook.

You know, he's

So we will have responses

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As for his request for the user IDs, although it seems

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innocuous to us, I've been doing some research on the issue

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because my concern is not that the intent is to, you know, just

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define information relevant to the case, but instead to use

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Facebook's vast wealth of knowledge about everybody to go far

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beyond the relevance of the case and come up with quite a bit

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more than that.

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And although I don't have my research in front of me,
Judge, I can tell you that there's some support for the premise

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that this type of discovery is supposed to take place through

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the discovery process and not informally through, for lack of a

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better word, you know, the back channels, the -- I guess the

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easiest analogy that I can give -THE COURT:

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What back channels -- what back

channels are you talking about?

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MR. ZIGLER:

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THE COURT:

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Wait.

Well -Not what we're talking about right now,

right?

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MR. ZIGLER:

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THE COURT:

I'm sorry?
I mean, this -- you are not -- you are not

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saying that his request for an expedited response is back

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channels, you are saying that --

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MR. ZIGLER:

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THE COURT:

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MR. ZIGLER:

No.

That's not what I'm saying, Judge.

-- that by getting this information -The use of the user name itself, I might

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have an objection to that request.

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intends to -- depending on how Facebook intends to use that.

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To the extent that Facebook

As Mr. Brown just said, you know, they want to do

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their research to find out how the kids are using the site.

I

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think we have -- I think that that needs to take place within

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the discovery process.

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I intend to respond to, which asks relevant information

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about -- or to the extent that it asks for relevant information

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about how the kids use the site, I plan to respond to that.

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But there will be information contained within the

Mr. Brown has sent me a request, which

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kids' Facebook account information that is not relevant to the

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case.

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the kids have opened up everything that might be determined by

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Facebook through its access to their accounts that they can

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determine outside the discovery process.

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And I don't believe that by participating in the suit

The easiest analogy that I can give, which isn't

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directly on point because I don't have my research as to this

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topic in front of me, is essentially the Petrillo doctrine in

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the Illinois State Court, where there -- and I know that that

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deals with a privilege issue, the doctor-patient privilege.

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But there, where you sue both a hospital and a doctor,

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the hospital doesn't get to walk down to the doctor's office

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and say, Hey, give me the whole patient file on that, on the

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plaintiff.

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request to the plaintiff, and the plaintiff gets their own

Instead, the hospital has to send a discovery

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records, reviews it for relevance and other issues, and then

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they're produced through the discovery process.

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That's what we think should take place here.

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THE COURT:

But does the -- under that, though, the

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hospital doesn't have to get its own records.

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they have to get the doctor's records.

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need a request to get the hospital -- or his records.

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needs a request to get the hospital's records, right?

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MR. ZIGLER:

That's right.

That's just when

And the doctor doesn't
He just

And in this case, there is

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a federal law called the Stored Communications Act, which I

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wouldn't say it is exactly a privilege.

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know, it raises a level of the information that's contained

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within a account such as the Facebook account, and it prohibits

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use beyond the authorization of that use.

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But it asserts, you

In the doctor-patient example, a hospital, in their

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own records, has full access to all those records because they

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use them for whatever purpose.

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carrier of a -- the patient isn't sending an e-mail to their

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girlfriend using the hospital's records.

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THE COURT:

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MR. ZIGLER:

But the hospital is not a

Mmm hmm.
So because of that, Congress has passed a

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law called the Stored Communications Act, which prohibits,

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usually, third parties from getting into those records except

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under certain circumstances.

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little flatfooted here.

Like I said, I'm being caught a

But the point is, we have got a

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response to that request, and we would like the time allowed

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under the rules to respond to that request and not just be put

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on the spot here in a call.

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THE COURT:

Well, I'm not, you know, we have raised a

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number of things on both sides that the other side wasn't

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necessarily anticipating.

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now, I'm just trying to get an idea.

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And I'm not going to make a ruling

First of all, I wasn't sure that this was an issue
that you were going to be objecting to.

So it's fair for --

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it's fair for Mr. Brown to raise the issue.

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you to, as you have done, say, I'm not ready to make a formal

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objection yet, but there probably is one.

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are saying.

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without seeing what you have to say about it.

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It's also fair for

And I hear what you

And I don't have a position on this right now

So, Mr. Brown, I think we are going to have -- what it

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sounds like is there may be a formal objection to the request

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or a request for some limitation on its use.

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not in a position to say anything about whether I think these

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objections may or may not even be meritorious.

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I mean...

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MR. BROWN:

And I'm certainly

I don't know.

Just to be clear, your Honor, right now we

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have no configuration about who the other party is in this

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litigation.

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THE COURT:

Right.

I hear you.

And, again, I'm not

saying that what you are asking for -- it sounds -- on its

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face, it sounds to me like this is relevant.

But that doesn't

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answer the entire inquiry.

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just don't know what Mr. Zigler's formal objections are going

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to be.

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just -- I just don't know.

You know what I mean?

I mean, I

And they may not -- they many not carry the day.

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MR. ZIGLER:

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MR. BROWN:

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MR. ZIGLER:

I

I mean, yes --

Right.
Right.
All I'm -- all I'm suggesting is it is a

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more complex issue than it seems, and we would like the time

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that we are allotted to prepare our arguments and decide just

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exactly what our response is.

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Mr. Brown that the reason that he doesn't know who the minor

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parties are is because of the federal rules and the requirement

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that they're only referred to by initial.

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diligently viewed the research here, and I can assure you that

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the minors have Facebook accounts that are active and --

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MR. BROWN:

Right.

And I can assure the Court and

But that I have

But we need to be able to know

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which accounts those are so that we can actually start

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preparing a defense to this case.

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You know, Mr. Zigler insisted when we were negotiating

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the schedule that we were supposed to finish our depositions of

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the named plaintiffs by like mid-January.

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disparity between the deadline for those depositions and the

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depositions of Facebook personnel, which, you know, in

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retrospect, you know, really, we never really have a schedule

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And there is a

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that works that way.

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Normally, it is the same day.

And yet our hands are being tied now, where we are

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supposed to be -- I mean, we are supposed to be somehow

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preparing for depositions, preparing our defense, literally

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without knowing who the plaintiffs are that have brought this

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federal action against us.

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And I'm not talking about whether it's appropriate to

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use initials, you know, in a public filing or anything like

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that.

I'm talking about actual information that we need in

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order to litigate the case.

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position in any of the other cases.

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And I've never encountered this

And, in fact, in the Fraley case, you know, the

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plaintiff's counsel provided it on an informal basis, and it

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was no big deal.

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is any issue about this at all.

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of an issue of just timing, whether it would be now or when

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they served their discovery responses.

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this as being an issue at all, and I don't see how that kind of

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information could be withheld.

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So I'm actually surprised to hear that there

THE COURT:

And I thought it would be more

But so I just don't see

Well, I don't know.

And so I'm surprised

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by it too, but that doesn't mean anything other than we are not

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going to decide it today.

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there's -- there may -- it may turn out that Mr. Zigler doesn't

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make an objection.

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That's all I'm saying.

I don't know.

When are the responses due?

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So if

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MR. ZIGLER:

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THE COURT:

Next Wednesday.
Okay.

So there will be a response made.

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And if there is an objection, Mr. Brown, the rules are simple.

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When you get those responses next Wednesday, I'm going to give

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Mr. Zigler at least the opportunity to, until then, look at

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this issue and decide whether he's going to make an objection

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to the production of that information.

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objection, and it is one that you don't agree with, and you

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have talked to him about it, then we'll set it for hearing.

And if there is an

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And we will do so expeditiously.

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January to know if you are going to get this.

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MR. BROWN:

Okay.

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THE COURT:

Okay.

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You won't have to wait until

before -- or today?

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MR. SWARTWOUT:

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transcript, your Honor.

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THE COURT:

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MR. SWARTWOUT:

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THE COURT:

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MR. SWARTWOUT:

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THE COURT:

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MR. ZIGLER:

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THE COURT:

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MR. SWARTWOUT:

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THE COURT:

Anything else we need to take up

I just need to order a copy of the
This is Charlie Swortwout.

Molly is the court reporter here.
Okay.

Molly Clayton.
Thank you.

All right.

Anything else?

Thank you for your time, Judge.
Okay.

Thank you.

Thank you.

Everybody have a good Thanksgiving.

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We

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will talk to you next week.

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MR. BROWN:

Thank you, your Honor.

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THE COURT:

All right.

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Bye, bye.

(End of requested transcript)

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-oOo-

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REPORTER'S CERTIFICATE

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I, Molly N. Clayton, RPR, Official Court Reporter for the
U.S. District Court, Southern District of Illinois, do hereby
certify that I reported with mechanical stenography the
proceedings contained in pages 1 - 70; and that the same is a
full, true, correct and complete transcript from the record of
proceedings in the above-entitled matter.

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DATED this 25th day of November, 2011.
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`ÉÄÄç VÄtçàÉÇ? ece
____________________________________

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User ID issue