In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 108

MOTION for Protective Order TEMPORARILY STAYING FURTHER DISCOVERY PENDING RESOLUTION OF MOTION TO DISMISS SECOND AMENDED CONSOLIDATED COMPLAINT, AND MEMORANDUM OF POINTS AND AUTHORITIES filed by Facebook Inc.. Motion Hearing set for 4/28/2016 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 3/16/2016. Replies due by 3/23/2016. (Attachments: #1 Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #2 Exhibit A to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #3 Exhibit B to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #4 Exhibit C to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #5 Exhibit D to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #6 Exhibit E to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #7 Exhibit F to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #8 Exhibit G to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #9 Exhibit H to Declaration of Kyle C. Wong in Support of Defendant Facebook, Inc.'s Motion for Protective Order, #10 Proposed Order (Brown, Matthew) (Filed on 3/2/2016) Modified on 3/16/2016 (cv, COURT STAFF).

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
ADAM C. TRIGG (261498)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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In re: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD

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DEFENDANT FACEBOOK, INC.’S NOTICE
OF MOTION AND MOTION FOR
PROTECTIVE ORDER TEMPORARILY
STAYING FURTHER DISCOVERY PENDING
RESOLUTION OF MOTION TO DISMISS
SECOND AMENDED CONSOLIDATED
COMPLAINT, AND MEMORANDUM OF
POINTS AND AUTHORITIES

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FED. R. CIV. P. 26(c)

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Date:
Time:
Courtroom:
Judge:
Trial Date:

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April 28, 2016
9:00 a.m.
4
Hon. Edward J. Davila
None Set

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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TABLE OF CONTENTS

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Page

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NOTICE OF MOTION ................................................................................................................... 1

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STATEMENT OF RELIEF SOUGHT ........................................................................................... 1

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STATEMENT OF ISSUE TO BE DECIDED ................................................................................ 1
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

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I.

INTRODUCTION .............................................................................................................. 1

II.

STATEMENT OF FACTS ................................................................................................. 3

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A.

Procedural Background ........................................................................................... 3

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B.

Plaintiffs’ Lack of Diligence on Discovery to Date ................................................ 4

III.

LEGAL STANDARDS....................................................................................................... 7

IV.

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ARGUMENT ...................................................................................................................... 8

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A.

Discovery Should Be Stayed Temporarily Pending Resolution of
Facebook’s Motion to Dismiss Because the Motion Could Potentially
Dispose of the Entire Case and Can Be Decided Without Any Further
Discovery. ............................................................................................................... 8

B.

Protection from Further Discovery Pending the Motion to Dismiss is
Particularly Appropriate Here Where the Additional Discovery Sought
Will Be Costly, Unnecessary, and Unduly Burdensome. ..................................... 11

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V.

CONCLUSION ................................................................................................................. 13

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

-i-

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES

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Page(s)

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Cases

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Ashcroft v. Iqbal,
556 U.S. 662 (2009) ....................................................................................................................9

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Barker v. Gottlieb,
Civ. No. 13-00236 LEK-BMK, 2014 WL 1569477 (D. Haw. Apr. 16, 2014) ...........8, 9, 11, 12
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ....................................................................................................................9
Dura Pharms., Inc. v. Broudo,
544 U.S. 336 (2005) ....................................................................................................................9
Fields v. Roberts,
No. 1:06-cv-00407-AWI-GSA-PC, 2013 WL 5230034 (E.D. Cal. Sept. 16,
2013) ...............................................................................................................................8, 11, 12
Gibbs v. Carson,
No. C-13-0860 THE (PR), 2014 WL 172187 (N.D. Cal. Jan. 15, 2014)..............................8, 11

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15
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Hall v. Tilton,
No. C 07-3233 RMW (PR), 2010 WL 539679 (N.D. Cal. Feb. 9, 2010) .......................8, 10, 11
Hamilton v. Rhoads,
No. C 11-0227 RMW (PR), 2011 WL 5085504 (N.D. Cal. Oct. 25, 2011) .........................8, 11
Harris v. Am. Gen. Fin. Servs. LLC,
No. 2:10-cv-01662-GMN-LRL, 2010 WL 9517401 (D. Nev. Dec. 2, 2010) .......................8, 11

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Janis v. Biesheuvel,
428 F.3d 795 (8th Cir. 2005).......................................................................................................7
Jarvis v. Regan,
833 F.2d 149 (9th Cir. 1987)...................................................................................................7, 9
Johnson v. N.Y. Univ. Sch. of Educ.,
205 F.R.D. 433 (S.D.N.Y. 2002) ................................................................................................7

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Little v. City of Seattle,
863 F.2d 681 (9th Cir. 1988).......................................................................................................7
Mitchell v. Forsyth,
472 U.S. 511 (1985) ....................................................................................................................7

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

ii.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)

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Page(s)
O’Meara v. Heineman,
No. 8:09CV0157, 2009 U.S. Dist. LEXIS 67487 (D. Neb. July 29, 2009) ................................7
Panola Land Buyers Ass’n v. Shuman,
762 F.2d 1550 (11th Cir. 1985)...................................................................................................7
Rae v. Union Bank,
725 F.2d 478 (9th Cir. 1984).......................................................................................................9
Rutman Wine Co. v. E. & J. Gallo Winery,
829 F.2d 729 (9th Cir. 1987)...................................................................................................7, 8
S.F. Tech. v. Kraco Enters. LLC,
No. 5:11-cv-00355 EJD, 2011 WL 2193397 (N.D. Cal. June 6, 2011) ....................................10
Spokeo, Inc. v. Robins,
No. 13-1339 (cert. granted Apr. 27, 2015; argued Nov. 2, 2015) .............................................12
Spokeo. Matera v. Google Inc.,
No. 15-CV-04062-LHK, 2016 U.S. Dist. LEXIS 15271 (N.D. Cal. Feb. 5,
2016) .........................................................................................................................................12
Universal Trading & Inv. Co. v. Dugsbery, Inc.,
499 F. App’x 663 (9th Cir. 2012) ...............................................................................................7
Wenger v. Monroe,
282 F.3d 1068 (9th Cir. 2002).....................................................................................................7

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Wood v. McEwen,
644 F.2d 797 (9th Cir. 1981).......................................................................................................7
In re Zynga Privacy Litig.,
750 F.3d 1098 (9th Cir. 2014).....................................................................................................4

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Other Authorities

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5 Wright & Miller, Federal Practice and Procedure § 1216 .............................................................9

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Fed. R. Civ. P.
12(b) ........................................................................................................................................7, 9
26(c) ..................................................................................................................................1, 7, 10
26(b)(1) ....................................................................................................................................11

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

-iii-

DEF. FACEBOOK’S MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on April 28, 2016 at 9:00 am or as soon thereafter as this

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motion may be heard in the above-entitled court, located at 280 South First Street, San Jose,

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California, in Courtroom 4, 5th Floor, Defendant Facebook, Inc. (“Facebook”) will, and hereby

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does, move for a protective order temporarily staying further discovery during the pendency of

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Facebook’s motion to dismiss Plaintiffs’ Second Amended Consolidated Class Action Complaint

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(“SAC”). Facebook’s motion is made pursuant to Federal Rule of Civil Procedure 26(c) and is

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based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities,

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the accompanying Declaration of Kyle C. Wong (“Wong Decl.”), and all pleadings and papers on

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file in this matter, and upon such other matters as may be presented to the Court at the time of

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hearing or otherwise.

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certifies that the Parties have conferred and attempted to resolve this dispute prior to Facebook

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filing this motion. (See Wong Decl. ¶ 18.)

As required by Federal Rule of Civil Procedure 26(c)(1), Facebook

STATEMENT OF RELIEF SOUGHT

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Facebook seeks a protective order temporarily staying further discovery pending the

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Court’s resolution of Facebook’s motion to dismiss Plaintiffs’ SAC.

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STATEMENT OF ISSUE TO BE DECIDED
Whether the Court should grant a temporary stay of further discovery in this action

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pending the Court’s resolution of Facebook’s motion to dismiss Plaintiffs’ SAC.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION

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In the more than four years since this case was filed, Plaintiffs have taken a subdued and

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half-hearted approach to discovery. Although discovery commenced on June 29, 2012, Plaintiffs

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did not serve their first request for production of documents until November 2012. They have

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not, in four years, served a single deposition notice, request for admission, or interrogatory on

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Facebook. Moreover, Plaintiffs sat for six months on Facebook’s proposed stipulated protective

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order concerning the production of confidential documents, only to agree to the proposal without

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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any changes. After Facebook produced nearly 13,000 documents, Plaintiffs did not initiate a

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meet-and-confer regarding Facebook’s objections and production of documents for six months.

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At that point, they had not even reviewed the entire 13,000 document production. Then, in the

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middle of the meet-and-confer process, Plaintiffs went silent for nearly two years.

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It was not until after the Court issued its order (“Order”) dismissing Plaintiffs’ First

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Amended Consolidated Class Action Complaint (“FAC”), after Plaintiffs filed their SAC, and

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after Plaintiffs learned that Facebook intended to move to dismiss the SAC, that they suddenly

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became interested in pursuing discovery. On January 14, 2016—the same day Facebook was

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scheduled to file its Motion to Dismiss the SAC (“Motion to Dismiss”)—Plaintiffs sent a letter to

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Facebook seeking a considerable expansion of discovery, including depositions of Facebook

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employees and document production from twenty additional custodians. But Plaintiffs’ belated

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insistence on dramatically expanding discovery is unwarranted while Facebook’s Motion to

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Dismiss is pending, particularly given that this Court previously determined that Plaintiffs did not

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have Article III standing to bring the vast majority of the claims asserted in their original

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complaint. Nevertheless, in an attempt to avoid burdening the Court with motion practice,

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Facebook offered to produce certain appropriately focused categories of additional documents.

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Plaintiffs rejected that offer. Facebook now brings this motion for a protective order temporarily

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staying further discovery1 pending the resolution of its Motion to Dismiss, which is set to be

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heard by the Court in less than two months, on April 28, 2016.

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The “good cause” standard employed by courts in this circuit for staying discovery

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pending a motion to dismiss is easily satisfied here. Such stays may be granted when (1) the

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pending motion is potentially dispositive of the entire action, and (2) the motion can be decided

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without additional discovery. Unquestionably, if granted, Facebook’s Motion to Dismiss, which

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seeks to dismiss the SAC with prejudice, would end this action in its entirety. Also, Facebook’s

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motion can be decided without any additional discovery. As an initial matter, the motion is

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limited to the face of the complaint. Moreover, the Court dismissed the FAC largely on the basis

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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Facebook intends to produce the focused categories of documents already offered to Plaintiffs
regardless of the outcome of this motion.
2.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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of standing, and Facebook’s Motion to Dismiss again seeks dismissal on that basis. Further

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discovery will not assist Plaintiffs in pleading a cognizable injury. Nor will it shed any light on

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the basic operation of the Internet, upon which the Court based its prior dismissal of Plaintiffs’

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remaining claims. If Plaintiffs actually needed the discovery they now seek in order to amend

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their pleading, undoubtedly they would have asked for it long before now.

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circumstances, a temporary stay will not burden Plaintiffs, but rather, if the Court were to rule

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that the case may move forward, it will ensure that discovery focuses only on the subjects that are

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relevant to the operative complaint. For these reasons, Facebook asks the Court to order a

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temporary stay of further costly and burdensome discovery while it determines whether Plaintiffs

Under these

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have standing and whether their SAC states a claim upon which relief can be granted.

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II.

STATEMENT OF FACTS

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A.

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This case is a consolidated, multi-district lawsuit against Facebook, brought by and on

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behalf of individuals with active Facebook accounts from May 27, 2010, through September 26,

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2011. (Order at 1.) Plaintiffs claim that Facebook tracked and stored their post-logout Internet

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usage using small text files—or “cookies”—which Facebook is alleged to have embedded in their

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computers’ browsers. (Id.) Plaintiffs’ FAC asserted eleven federal, state, and common law

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claims, including claims under the federal Wiretap Act, the federal Stored Communications Act

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(“SCA”), and the California Invasion of Privacy Act (“CIPA”). (FAC, Dkt. No. 35.)

Procedural Background

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On October 23, 2015, the Court granted Facebook’s motion to dismiss the FAC in its

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entirety with leave to amend. (Order, Dkt. No. 87.) In the Order, the Court held that Plaintiffs

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failed to allege an injury-in-fact as required for Article III standing. (Id. at 11.) Specifically, the

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Court held that Plaintiffs did not “articulate[] a cognizable basis for standing pursuant to Article

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III” because they did “not demonstrate[] that Facebook’s conduct resulted in some concrete and

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particularized harm . . . .” (Id. at 11.) The Court determined that the FAC failed to connect

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whatever value there might be in the information allegedly collected by Facebook “to a realistic

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economic harm or loss that is attributable to Facebook’s alleged conduct.” (Id. at 10.) Put

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another way, “Plaintiffs [did] not show[], for the purposes of Article III standing, that they

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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personally lost the opportunity to sell their information or that the value of their information was

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somehow diminished after it was collected by Facebook.” (Id.) This failure to plead any injury

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resulted in dismissal of all but the three statutory claims noted above.

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For the remaining statutory claims, the Court dismissed the Wiretap Act and CIPA claims

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because the browsing information Plaintiffs alleged Facebook received was not “contents” of any

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communications under In re Zynga Privacy Litig., 750 F.3d 1098, 1106-07 (9th Cir. 2014).

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(Order at 15-16.) In doing so, this Court recognized that the URL information Plaintiffs allege

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was intercepted “is so similar to the referer headers addressed in Zynga Privacy Litigation [that]

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Plaintiffs may never be able to state [a] Wiretap Act claim . . . .” (Order at 16.) The Court also

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dismissed the SCA claim because Plaintiffs’ allegations did not demonstrate that Facebook

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accessed any communications in “electronic storage” as required by the SCA.

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determined that Plaintiffs’ allegations of access to “persistent cookies” “cannot be reconciled with

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the temporary nature of storage contemplated by the statutory definition.” (Order at 17.)

The Court

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On November 30, 2015, Plaintiffs filed their SAC, which abandoned several of their

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previous claims, but added new causes of action for fraud, breach of contract, and larceny. (Dkt.

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No. 93.) The SAC included new allegations regarding how the Internet and cookies function, all

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based on publicly available information.

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allegations regarding Plaintiffs’ alleged harm unchanged. (Compare FAC ¶¶ 10-14, 111-125 with

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SAC ¶¶ 129-143.) On January 14, 2016, Facebook filed its Motion to Dismiss the SAC with

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prejudice. The Motion to Dismiss seeks dismissal of the SAC with prejudice for lack of standing

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and failure to state a claim. A hearing on the Motion to Dismiss is set for April 28, 2016.

(See SAC ¶¶ 28-42.)

The SAC notably left the

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B.

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The history of discovery in this action is characterized by Plaintiffs’ significant delay and

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disinterest for years, followed by an unprompted and opportunistic insistence on expansive

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additional discovery right when briefing on Facebook’s Motion to Dismiss was set to commence.

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This inattention was obvious from the beginning. The parties attended a Case Management

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Conference before the Court on June 28, 2012 (Dkt. No. 43), but Plaintiffs waited until November

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2012 to serve their first (and to date only) discovery requests consisting of thirty-one requests for

COOLEY LLP
ATTORNEYS AT LAW
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Plaintiffs’ Lack of Diligence on Discovery to Date

4.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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production. (Ex. A.)2 On January 25, 2013, Facebook served objections and responses to

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Plaintiffs’ Requests for Production3 and produced an initial set of responsive documents. (Ex. B;

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Wong Decl. ¶ 4.) In December 2012, the Parties then began negotiating the terms of a stipulated

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protective order, which Facebook required prior to producing sensitive or confidential internal

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documents. (Wong Decl. ¶ 5.) The parties exchanged several versions of a proposed stipulated

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protective order between December 2012 and February 2013. (Id.) Facebook sent Plaintiffs

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proposed revisions to the draft stipulated protective order on February 20, 2013, but Plaintiffs did

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not respond for six months, at which point they dropped all of their previous objections without

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explanation. (Ex. C.) Shortly after Plaintiffs’ response, the parties finalized and filed a Stipulated

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Protective Order with the Court (Dkt. No. 68), which Judge Grewal signed on April 11, 2014

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(Dkt. No. 75). Five days later, Facebook produced nearly 13,000 documents, totaling almost

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65,000 pages, from Facebook’s internal repositories and three custodians with the most relevant

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information to Plaintiffs’ claims. (Wong Decl. ¶ 7.) In contrast, all four named Plaintiffs

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produced a total of 42 documents totaling 505 pages. (Id. ¶ 7.)

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Plaintiffs then went silent again. They did not follow up on Facebook’s responses until

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November 3, 2014 on a phone call during which Plaintiffs raised issues regarding Facebook’s

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objections and responses from nearly two years earlier and Facebook’s document production

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from six months earlier. (Wong Decl. ¶ 8.) The Parties held a meet-and-confer on these issues

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on November 19, 2014 that did not result in a resolution. (Id.)

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After the November 2014 meet-and-confer, Plaintiffs did nothing for another 14 months.

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During this time, the Court granted Facebook’s Motion to Dismiss and Plaintiffs filed their SAC.

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Not once did Plaintiffs reach out to Facebook regarding discovery. (Wong Decl. ¶ 10.) Only on

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All exhibits are to the Wong Declaration.

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Facebook objected on a number of grounds, particularly the vast overbreadth of the requests.
For example, Plaintiffs demanded “[a]ll documents concerning (a) Facebook’s Statement of User
Rights and Responsibilities; (b) Facebook’s Data Use Policy; and/or (c) Facebook’s Terms of
Service” regardless of whether they related to Facebook’s use of cookies (Ex. A, RFP No. 15);
and “[a]ll documents concerning the named Plaintiffs,” which would include, inter alia, all of the
information named Plaintiffs’ voluntarily posted on Facebook.com (e.g., pictures, status updates,
likes, messages), which have no relevance to this litigation (id. RFP No. 16).
5.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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January 14, 2016—the deadline for Facebook to file its Motion to Dismiss the SAC—did

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Plaintiffs break their 14-month silence and follow up on the November 2014 meet-and-confer.

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(Ex. D.) In their letter, Plaintiffs indicated that their “review of Facebook’s initial production is

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nearing completion”—a remarkable statement given that Facebook produced those documents

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almost two years earlier. Despite not having completed review of the documents Facebook

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already produced, Plaintiffs indicated that they wanted document production from “at least 20

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additional employees” as well as depositions. (Id. at 1.)

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Facebook replied to Plaintiffs on February 2, 2016 and provided some of the information

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regarding its production that Plaintiffs requested. (Ex. E.) Facebook also stated that given the

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Order and the pending Motion to Dismiss, further discovery, particularly expanding the number

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of custodians nearly seven-fold, would be unnecessary and unduly burdensome prior to the

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Court’s ruling on the Motion to Dismiss. (Id.) In an attempt to avoid unnecessary motion

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practice, Facebook also indicated that, while it believed any further discovery was unwarranted

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while the Motion to Dismiss is pending, it would agree to produce a limited set of additional

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documents if the parties could agree to hold off on further discovery until the resolution of the

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Motion to Dismiss. (Id.)

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The next day, Facebook and Plaintiffs met and conferred telephonically regarding the

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discovery dispute. (Wong Decl. ¶ 12.) On the call, Facebook reiterated its position regarding the

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burden of expanding discovery while the Motion to Dismiss is pending. (Id.) The parties

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discussed what additional documents Facebook might produce, but Facebook insisted that any

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additional production be contingent upon Plaintiffs’ agreement to otherwise postpone further

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discovery until after the Motion to Dismiss is resolved. Plaintiffs refused. (Id.)

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On February 16, 2016, Facebook followed up on the meet-and-confer and agreed to

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produce an additional limited set of documents. (Ex. F.) Facebook also reiterated its position

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regarding Plaintiffs’ attempt to expand discovery further, and asked that Plaintiffs reconsider its

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insistence on further discovery while the Motion to Dismiss is pending. (Id.) Again, Plaintiffs

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refused to do so. (Wong Decl. ¶ 13.) As of March 2, 2016, Plaintiffs have failed to respond

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altogether to Facebook’s latest communication. (Id. ¶¶ 14-15.) This motion followed.

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ATTORNEYS AT LAW
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6.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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III.

LEGAL STANDARDS

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Federal courts are entrusted with expansive discretion to shape the scope and timing of

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discovery, including the power to stay discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th

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Cir. 1988) (“The stay furthers the goal of efficiency for the court and litigants.”). This power

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comes from Federal Rule of Civil Procedure 26(c), which gives judges broad discretion to issue

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orders to “protect a party or person from annoyance, embarrassment, oppression, or undue burden

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or expense . . . .” Fed. R. Civ. Proc. 26(c). Where there is “good cause,” a court may issue a

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protective order under Rule 26(c) to limit or stay discovery all together. Wood v. McEwen, 644

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F.2d 797, 801 (9th Cir. 1981). The Ninth Circuit has endorsed the use of this protective power to

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stay discovery pending a potentially dispositive motion. E.g., Little, 863 F.2d at 685 (affirming

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stay of discovery pending a motion to dismiss); Universal Trading & Inv. Co. v. Dugsbery, Inc.,

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499 F. App’x 663, 665 n.9 (9th Cir. 2012) (same).4 Staying discovery is particularly appropriate

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if factual development will not assist the court in deciding the motion before it, such as when the

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court considers a motion to dismiss and therefore assumes the factual allegations to be true.

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Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987).

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Courts have regularly found good cause to issue protective orders under Rule 26(c) that

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stay discovery while the parties litigate a motion to dismiss, to protect parties from the hardships

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of potentially unnecessary discovery. See, e.g., Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir.

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2002), as amended on denial of reh’g and reh’g en banc (Apr. 17, 2002) (affirming stay of

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discovery once motion to dismiss was filed); Jarvis, 833 F.3d 149, 199 (same); see also Rutman

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Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“The purpose of F.R.Civ.P.

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Other federal courts have found the same. E,g., Panola Land Buyers Ass’n v. Shuman, 762 F.2d
1550, 1560 (11th Cir. 1985) (“Appellees are correct in declaring that a magistrate has broad
discretion to stay discovery pending decision on a dispositive motion.”); Janis v. Biesheuvel, 428
F.3d 795, 800 (8th Cir. 2005) (predicate Rule 12(b)(6) issues should be resolved before subjecting
defendants to “burdens of broad-reaching discovery”) (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)); Johnson v. N.Y. Univ. Sch. of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002) (granting
stay of discovery during pendency of motion to dismiss where “plaintiff has not demonstrated
that he would be prejudiced by a stay” and the motion to dismiss was “potentially dispositive and
does not appear to be unfounded in the law”); O’Meara v. Heineman, No. 8:09CV0157, 2009
U.S. Dist. LEXIS 67487, at *4 (D. Neb. July 29, 2009) (granting defendant’s motion to stay
discovery pending resolution of the defendant‘s motion to dismiss).
7.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints without

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subjecting themselves to discovery.”). The Ninth Circuit has held that “[i]t is sounder practice to

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determine whether there is any reasonable likelihood that plaintiffs can construct a claim before

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forcing the parties to undergo the expense of discovery.” Rutman Wine, 829 F.2d at 738.5

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Following this precedent, district courts in California have established a two-prong test for

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determining whether good cause exists to stay discovery pending a motion. See, e.g., Hall, 2010

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WL 539679, at *1-2 (staying discovery where the discovery requests were not connected to the

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pending 12(b)(6) motion); Gibbs, 2014 WL 172187, at *3 (same). “First, a pending motion must

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be potentially dispositive of the entire case, or at least dispositive on the issue at which discovery

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is directed. And second, the court must determine whether the pending dispositive motion can be

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decided absent discovery.” Hall, 2010 WL 539679, at *2.

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IV.

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ARGUMENT
The Court has good cause to issue a protective order temporarily staying further discovery

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in the circumstances presented here.

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dispositive and can be ruled on without additional discovery, the Court should stay any further

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discovery pending resolution of Facebook’s Motion to Dismiss. This is particularly true here,

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where Plaintiffs are seeking to greatly expand discovery shortly before the Motion to Dismiss will

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be heard.

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A.

Because Facebook’s Motion to Dismiss is potentially

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Discovery Should Be Stayed Temporarily Pending Resolution of Facebook’s
Motion to Dismiss Because the Motion Could Potentially Dispose of the Entire
Case and Can Be Decided Without Any Further Discovery.

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The circumstances presented here easily meet both prongs of the two-part test for staying

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discovery pending a motion. On the first prong, Facebook has moved to dismiss the SAC with

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District courts in the Ninth Circuit have often stayed discovery pending a motion to dismiss.
E.g., Gibbs v. Carson, No. C-13-0860 THE (PR), 2014 WL 172187, at *3 (N.D. Cal. Jan. 15,
2014); Barker v. Gottlieb, Civ. No. 13-00236 LEK-BMK, 2014 WL 1569477, at *2 (D. Haw.
Apr. 16, 2014); Fields v. Roberts, No. 1:06-cv-00407-AWI-GSA-PC, 2013 WL 5230034, at *1
(E.D. Cal. Sept. 16, 2013); Hamilton v. Rhoads, No. C 11-0227 RMW (PR), 2011 WL 5085504,
at *1 (N.D. Cal. Oct. 25, 2011); Harris v. Am. Gen. Fin. Servs. LLC, No. 2:10-cv-01662-GMNLRL, 2010 WL 9517401, at *1 (D. Nev. Dec. 2, 2010); Hall v. Tilton, No. C 07-3233 RMW
(PR), 2010 WL 539679, at *2 (N.D. Cal. Feb. 9, 2010).
8.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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prejudice, and therefore the motion could dispose of the entire case. This Court already granted

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Facebook’s first motion to dismiss, largely on the legal question of standing. (Order at 11-13.)

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Plaintiffs nevertheless filed an amended complaint that makes no attempt to correct the fatal

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defects this Court identified in its Order, as Facebook has detailed in its pending Motion to

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Dismiss. If Facebook’s Motion is granted, any further discovery allowed in the interim will have

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unnecessarily and disproportionally subjected Facebook to the heavy expense of the further

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discovery Plaintiffs seek in addition to that which Facebook has already incurred in discovery to

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date. See Barker, 2014 WL 1569477, at *2 (granting stay pending motion to dismiss to avoid

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“the unnecessary expense of pursuing possibly fruitless discovery”). Indeed, the gross disparity

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between the 13,000 documents Facebook has already produced and the 42 documents Plaintiffs

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have produced (a ratio of nearly 310 to 1) further support this stay. Fed. R. Civ. P. 26(b)(1).

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Likewise, as to the second prong, Facebook’s Motion to Dismiss can be decided without

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any further discovery. The motion addresses the pleading failures on the face of the SAC. No

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factual development is needed to decide the motion. Instead, the court will assume all of the

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factual allegations are true without considering any facts not already asserted in the SAC or

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attachments to the SAC. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 570 (2007)).6 The Court is well within its discretion to stay discovery

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in these circumstances. See, e.g., Jarvis, 833 F.2d at 155 (“Discovery is only appropriate where

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there are factual issues raised by a Rule 12(b) motion.”); Rae v. Union Bank, 725 F.2d 478, 481

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(9th Cir. 1984) (“[T]he district court did not abuse its discretion in staying Rae’s discovery

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pending resolution of the Rule 12(b) motion” where there were no “factual issues.”).

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Consistent with the numerous Ninth Circuit authorities cited above, in the Twombly decision
itself, the United States Supreme Court warned that when “the allegations in a complaint,
however true, could not raise a claim of entitlement to relief, ‘this basic deficiency should . . . be
exposed at the point of minimum expenditure of time and money by the parties and the court.’”
Bell Atl. Corp., 550 U.S. at 558 (quoting 5 Wright & Miller, Federal Practice and Procedure §
1216, at 233-34). The Court expressly recognized the “practical significance” holding plaintiffs
to their obligations to plead viable claims before permitting them to engage in discovery “lest a
plaintiff with ‘a largely groundless claim’ be allowed to ‘take up the time of a number of other
people, with the right to do so representing an in terrorem increment of the settlement value.’”
Id. (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
9.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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Any argument that further discovery should not be stayed pending the Motion to Dismiss

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because the discovery could support a third amended complaint fails for at least three reasons.

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First, the two-part test asks whether the “pending dispositive motion can be decided absent

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discovery.” Hall, 2010 WL 539679, at *2 (emphasis added). No consideration of a possible

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amended complaint is required. Id. (staying discovery without considering its use in amending

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the complaint). Second, Facebook’s Motion to Dismiss argues, supported by case law, that the

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Court should dismiss the SAC with prejudice given that Plaintiffs have not remedied the fatal

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defects this Court already identified in its Order. (See Motion at 40.) Third, no further discovery

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in response to Plaintiffs’ broad discovery requests can cure the deficiencies in the SAC. The

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foundational issue raised by Facebook’s Motion to Dismiss is whether Plaintiffs have adequately

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alleged an injury-in-fact to establish Article III standing. Any facts supporting a particularized

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injury to each of the named Plaintiffs are entirely in Plaintiffs’ control, not Facebook’s.

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Discovery will also not lead to facts supporting the few remaining statutory claims. As the Court

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ruled previously, the URLs of the webpages Plaintiffs visited that Plaintiffs allege Facebook

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received are not “contents” under the various statutes. (Order at 16, 18.) No further discovery

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from Facebook bears on this question, which concerns how the Internet works.7 Plaintiffs’ nearly

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two-year delay in seeking further discovery is evidence enough of this. If Plaintiffs truly believed

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that further discovery would assist them in amending their deficient complaint, they would have

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sought that discovery long ago rather than waiting until the day Facebook was to file its motion to

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dismiss the SAC. Any argument that further discovery cannot wait until the Court decides the

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Motion to Dismiss rings hollow given Plaintiffs’ long delay in pressing for additional discovery.

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Because Facebook’s pending Motion to Dismiss is both potentially dispositive and can be

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decided without any further discovery, Facebook has demonstrated good cause under Rule 26(c)

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Because the Court already dismissed the FAC, and further discovery will not assist Plaintiffs in
remedying the insufficiencies the Court identified, this case is distinguishable from others that
have denied a stay of discovery pending a motion to dismiss because the discovery could assist in
amending the first complaint. See, e.g., S.F. Tech. v. Kraco Enters. LLC, No. 5:11-cv-00355
EJD, 2011 WL 2193397, at *3 (N.D. Cal. June 6, 2011) (denying stay of discovery pending first
motion to dismiss to allow plaintiffs to develop a “more detailed complaint”).
10.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

1

and the Court should order a temporary stay of further discovery until the Court determines

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whether Plaintiffs have standing and have stated a claim upon which relief can be granted. Gibbs,

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2014 WL 172187, at *3 (staying discovery pending motion to dismiss); Barker, 2014 WL

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1569477, at *2 (same); Fields, 2013 WL 5230034, at *1 (same); Hamilton, 2011 WL 5085504, at

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*1 (same); Harris, 2010 WL 9517401, at *1 (same); Hall, 2010 WL 539679, at *2 (same).

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B.

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Protection from Further Discovery Pending the Motion to Dismiss is
Particularly Appropriate Here Where the Additional Discovery Sought Will
Be Costly, Unnecessary, and Unduly Burdensome.

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As discussed in the previous section, there is ample authority for staying discovery

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pending Facebook’s potentially dispositive Motion to Dismiss regardless of the scope of the

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additional discovery Plaintiffs seek. But a temporary stay is particularly appropriate here, where

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the costs and burden of the requested discovery grossly outweigh any benefit of further discovery

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at this point.

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Plaintiffs insist on a massive expansion of the scope of the document production Facebook

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has already provided. Facebook has already gone to great burden and expense to produce

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documents in this action, unlike Plaintiffs who have made only a meager production. Now, as the

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Motion to Dismiss is pending, Plaintiffs demand that Facebook should produce documents from

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20 additional custodians. The time and effort to collect, review, and produce relevant documents

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from these additional custodians will be extensive and costly, both monetarily and in disruption of

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Facebook’s business. (Wong Decl. ¶ 16.) This is particularly burdensome where discovery to

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date has been so disproportionate, and will only become more so with the huge expansion of

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discovery that Plaintiffs seek. Fed. R. Civ. P. 26(b)(1).

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Plaintiffs also seek depositions for the three custodians whose documents have been

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produced, and presumably will insist on depositions for the additional 20 custodians they have

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proposed as well. This too will require valuable time and effort to prepare for and attend those

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depositions, both for the attorneys and the individuals Plaintiffs seek to depose, some of whom

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are no longer Facebook employees. (Id. ¶ 17.)

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Plaintiffs’ insistence on this massive expansion of the discovery undertaken thus far is

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particularly unwarranted given their delay in pursuing discovery in this action. Plaintiffs waited

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ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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six months after Facebook’s production of documents to meet and confer regarding Facebook’s

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production, then waited more than a year to follow up on that meet-and-confer. When they did

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follow up, they did so on the day Facebook was scheduled to file its Motion to Dismiss the SAC,

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admitting that they had not yet completed their review of the documents Facebook already

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produced. These actions suggest opportunistic gamesmanship rather than a sincere desire to

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litigate this case. While some of the additional discovery Plaintiffs seek may be justified if the

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Court determines that Plaintiffs have standing and have adequately pled their claims, it is

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unwarranted while Facebook’s potentially dispositive Motion to Dismiss is pending.8

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Moreover, a short stay of discovery pending the Court’s ruling on the Motion to Dismiss

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will promote efficiency and conserve both party and Court resources. If discovery goes forward,

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there will likely be motion practice regarding the scope of that discovery, requiring the

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expenditure of both party and Court resources, which will prove unnecessary if the Court grants

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Facebook’s Motion to Dismiss. Additionally, a temporary stay will ensure that the litigation

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proceeds efficiently and that discovery focuses on the subjects that are relevant to the operative

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complaint (if any) that the Court rules may move forward. See Fields, 2013 WL 5230034, at *1

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(granting stay pending motion to dismiss in part because of the “merit” of the argument that “if

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the court dismisses only some of Plaintiff’s claims pursuant to the motion [to dismiss], Plaintiff

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will be able to focus his discovery on any surviving claims, thus limiting time and expense for all

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parties”).

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The benefits of staying discovery for a short time pending the Motion to Dismiss far

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outweigh any costs of a short delay. See Barker, 2014 WL 1569477, at *2 (“The costs, if any, of

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a brief delay are outweighed by the benefits of limiting the unnecessary expense of pursuing

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possibly fruitless discovery.”). The Court should grant Facebook’s motion.

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Further discovery is particularly unwarranted in light of the fact that the Supreme Court soon
will rule in a case that may bear on the issue of statutory standing, Spokeo, Inc. v. Robins, No. 131339 (cert. granted Apr. 27, 2015; argued Nov. 2, 2015). In fact, Judge Koh recently stayed a
similar class action involving Wiretap Act and CIPA claims in its entirety to await the outcome of
the Supreme Court’s decision in Spokeo. Matera v. Google Inc., No. 15-CV-04062-LHK, 2016
U.S. Dist. LEXIS 15271 (N.D. Cal. Feb. 5, 2016).
12.

DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD

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V.

CONCLUSION
For the foregoing reasons, Facebook respectfully requests that this Court issue a protective

order temporarily staying discovery pending resolution of Facebook’s Motion to Dismiss.

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Dated: March 2, 2016

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COOLEY LLP

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/s/ Matthew D. Brown
Matthew D. Brown

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Attorneys for Defendant FACEBOOK, INC.

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127312440

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DEF. FACEBOOK’S MOTION FOR PROTECTIVE
ORDER, CASE NO. 5:12-MD-02314 EJD