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])
JEFFREY M. GUTKIN (216083)
([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]
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
EXHIBIT A TO DECLARATION OF KYLE
C. WONG IN SUPPORT OF DEFENDANT
FACEBOOK, INC.’S MOTION FOR
PROTECTIVE ORDER

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Date:
Time:
Courtroom:
Judge:
Trial Date:

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

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EXHIBIT A

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

EXHIBIT A TO WONG DECLARATION ISO
FACEBOOK’S MOTION FOR PROTECTIVE ORDER
CASE NO. 5:12-MD-02314 EJD

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

In re: Facebook Internet Tracking Litigation

Case No. 12-md-02314 EJD

PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION
OF DOCUMENTS TO DEFENDANT FACEBOOK
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiffs
Perrin Davis, Cynthia Quinn, Brian Lentz and Matthew Vickery (collectively,
“Plaintiffs”), by their attorneys, hereby demand that Defendant Facebook produce the
documents described below, at the offices of Stewarts Law US LLP, 1201 North Orange
Street, Suite 740, Wilmington, Delaware 19801 within the time prescribed by such rules,
or at such other time and place as may be mutually agreed upon by counsel.
DEFINITIONS
1.

The term “communication” means the transmittal of information (in the

form of facts, ideas, inquiries, or otherwise), including, without limitation,
correspondences, letters, memos, e-mails or faxes, whether handwritten or typewritten.
The term also includes any audio and video tapes, transcripts, or notes made of telephone
calls.
2.

“Document” is defined in the broadest possible sense and includes all

electronically stored information ("ESI").

Documents responsive to these requests

include all originals, non-identical copies and drafts of any documents, including without

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limitation, any and all written, printed, typed, photostatic, photographic, recorded,
electronic or graphic material, however produced or reproduced, tapes or other voice
recordings, and all other tangible objects, including without limitation:

booklets,

brochures, magazines, trade publications, pamphlets, circulars, catalogs, notices,
periodicals, paper, income statements, balance sheets, spreadsheets, tables, presentations,
projections, forecasts, budgets, statements of cash flows, statements of operations,
contracts, agreements, photographs, agendas, minutes, records of meetings, memoranda,
messages,

records,

trade

letters,

comparisons,

appraisals,

analyses,

reports,

questionnaires, plans, evaluations, financial calculations and representations, diary
entries, calendars, telephone logs, telephone records, sales call reports, correspondence,
telegrams, telecopies, press releases, advertisements, notes (handwritten or otherwise),
transcripts, working papers, drawings, schedules, tabulations and projections, surveys,
scripts, studies, graphs, charts, films, printouts, video and audiotapes, time records and
employee performance evaluations, computer files, computerized data, computer drives,
home or personal computer contents, computer disks, databases, notes, memorializations
and all other data, whether recorded or stored by electronic or any other means, including
without limitation, all computer-generated or computer-stored information, e-mail,
Easylink, internet, intranet, network or any other “in-house” electronic communication
system (e.g., Lotus ccmail), whether or not reduced to printed form, and drafts of any of
the foregoing. If a document was prepared in several copies or if additional copies were
made, and if any such copies are not identical or are no longer identical for reason of any
subsequent notation or modification whatsoever, including without limitation, notations

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on the front or back on any of the pages thereof, then each non-identical copy is a
separate document and must be produced.
3.

“Person” means any natural person; public or private corporation, whether

or not organized for profit; governmental entity; partnership; association; cooperative;
joint venture; sole proprietorship; or other legal entity. With respect to a business entity,
the term “person” includes any natural person acting formally or informally as an
employee, officer, agent, attorney, or other representative of the business entity.
4.

“Policy” means each rule, procedure, or directive, formal or informal, that

was recognized as such by your present or former officers, directors, employees, agents,
or other persons acting or purporting to act on your behalf, that was in effect at any time
during the period covered by these requests and includes any changes of policy.
5.

“You,” “your,” and “your company” as used herein means Facebook, Inc.,

as defined herein.
6.

The terms “and” and “or” shall be read as “and/or” and construed either

disjunctively or conjunctively as necessary to bring within the scope of the discovery
request all responses that might otherwise be construed outside of its scope.
7.

The use of the singular form of any word includes the plural and vice

versa. In addition, the use of any tense of any verb includes all other tenses of the verb.
8.

“He” or “his’ shall be read also to refer, where applicable, to “she” or

9.

The word “including” shall be deemed to be followed by the phrase “but

“her.”

not limited to.”

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10.

The phrases, “concerning,” “relates to,” or “relating to” include reflecting,

analyzing, constituting, memorializing, discussing, regarding, evidencing, referring to,
involving, explaining, dealing with, in connection with, referenced in, attached to, and/or
bearing upon (whether legally, factually or otherwise) in whole or in part.
11.

“Complaint” means the corrected version of Plaintiffs’ First Amended

Consolidated Class Action Complaint, filed in this Court on or around May 23, 2012.
12.

“ESI” means electronically stored information, electronically stored data

or electronic data, and is to be interpreted broadly, as used in the Federal Rules of Civil
Procedure and the advisory committee notes thereto, to include all types of information,
regardless of the storage media (e.g, hard drive, CD-ROM, DVD, disc, tape, thumb drive,
etc.), that requires a computer or other machine to read or process it.
13.

“Facebook” means Facebook, Inc., its present and former officers,

directors, shareholders, employees, trustees, principals, agents, servants, parent
corporations, subsidiaries, divisions, affiliates, franchisee, associated or related entities,
predecessors, successors, accountants, and attorneys; all other persons, corporations and
organizations acting on its behalf; and any or all of the foregoing.
14.

“PII” means information obtained from or about Facebook members.
INSTRUCTIONS

1.

You are requested to produce all documents described below that are in

Your possession, custody or control. All documents shall be produced in the form and
order they are kept in the ordinary course of business, and shall be produced in their
original folders, binders, covers or containers, or facsimiles thereof. Documents that
were stapled, clipped or otherwise fastened together in their original condition shall be

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produced in such form. Any index of responsive documents and any electronic copy of
responsive documents (including without limitation those recorded on CD) shall also be
produced. In addition, You are required to supplement and/or amend Your responses on
a going-forward basis, as appropriate.
2.

You shall produce the original of each document described below or, if the

original is not in Your custody, then a copy thereof, and in any event, all non-identical
copies which differ from the original or from the other copies produced for any reasons,
including, without limitation, the making of notes thereon.
3.

If any portion of any document is responsive to any request, then the entire

document must be produced. If any requested document cannot be produced in full,
produce the document to the extent possible, specifying each reason for Your inability to
produce the remainder of the document and stating whatever information, knowledge or
belief You have concerning the portion not produced.
4.

If any responsive document was, but is no longer in Your possession,

custody, or control, state whether it is: (a) missing or lost; (b) destroyed; (c) transferred
voluntarily or involuntarily to others; or (d) otherwise disposed of, and in each instance
explain the circumstances surrounding such disposition thereof.
5.

If any responsive document is withheld, in whole or in part, for any

reason, including, without limitation, any claim of privilege, confidentiality, trade secret,
or any other objection, set forth separately with respect to each such document: (a) the
type of document (i.e., letter, memorandum, etc.); (b) the author(s) of the document; (c)
the addressee(s) of the document; (d) the date of the document; (e) the identity of all
persons having received copies of the document, seen the document, or to whom the

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document was disclosed; (f) the subject matter of the document; (g) a brief statement or
synopsis of the substance of the document and/or the circumstances surrounding the
making of the document; and (h) the nature of the privilege or other rule relied upon in
withholding production of the document. The foregoing information shall be produced in
the form of a “Privilege Log” within one (1) day after the withholding or partial
production of any applicable documents.
6.

If a portion of any responsive document is protected from disclosure by

privilege, work product or otherwise, that portion of the document may be redacted
provided that the document is marked with the legend “Redacted,” so as to reflect any
and all portions which have been redacted and provided the information requested in ¶ 5
of these Instructions is furnished in the form of a “Privilege Log.”
7.

The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the discovery request all
responses that might otherwise be construed to be outside of its scope.
8.

The use of the singular form of any word includes the plural and vice

versa.
TIME PERIOD
Unless stated otherwise, the time period to which these requests refer is May 27,
2008 through the present (the “Time Period”). If a document prepared before this period
is necessary for a correct or complete understanding of any document covered by a
request, you must produce the earlier or subsequent document as well. If any document
is undated and the date of its preparation cannot be determined, the document shall be
produced if otherwise responsive to the production request.

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DOCUMENTS REQUESTED
REQUEST NO. 1:
All documents relating to any tracking by Facebook of Facebook user internet
activity after those users had logged out of their Facebook session, as alleged in the
Complaint at ¶¶ 71-84 and elsewhere, including information about websites visited by
such users.
REQUEST NO. 2:
All documents relating to any consent that Facebook contends the plaintiffs or
other putative class members gave Facebook for the tracking of user internet activity
post-log-out.
REQUEST NO. 3:
All documents describing or containing the names, descriptions, usage or
identifying features of the log entries (“Log Files”) that Facebook created, maintained,
reviewed, analyzed or used to organize data about Facebook users’ internet activity, as
described in the Complaint at ¶ 79 and elsewhere, inclusive of whether those users were
logged-in or logged-out of Facebook.
REQUEST NO. 4:
All documents concerning all databases Facebook created, maintained, reviewed,
analyzed or used to store information about Facebook users, including internet activity
for those users, and including all documents identifying or describing any tables in any
Facebook database and the overall nature of Facebook’s database structure.

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REQUEST NO. 5:
All documents relating to the methods by which Facebook collects and stores data
from Facebook users, both while they are logged-in to and after log-out from Facebook.
REQUEST NO. 6:
All documents constituting Facebook’s corporate organizational charts, including
those that describe or depict the “Data Science Team” however it might now be called
(inclusively, “Data Science Team”), as described in the July/August 2012 Technology
Review article, “What Facebook Knows,” by Tom Simonite.
REQUEST NO. 7:
All documents relating to the Data Science Team’s analyses, studies or
recommendations of ways in which Facebook might directly or indirectly generate
revenue from user data Facebook obtains.
REQUEST NO. 8:
All documents relating to studies, analyses or evaluations of Facebook’s actual or
potential revenue or profits associated with personalized advertisements whereby
Facebook users or non-users are described as users of a particular product or service.
REQUEST NO. 9:
All documents concerning studies, analyses or evaluations by Facebook of the
value, including monetary value, of PII.
REQUEST NO. 10:
All documents concerning studies, analyses or evaluations of the “key value”
pairs Facebook ascribed to cookies Facebook placed on user’s browsers or in user’s
computers when such users were either logged in to Facebook or logged out of Facebook.

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REQUEST NO. 11:
All documents, including but not limited to instructions, manuals, protocols or
policies, relating to Facebook’s linking of PII to a particular user’s computer and/or
Facebook account.
REQUEST NO. 12:
All documents, including but not limited to measurements, studies, analyses or
evaluations, of the length of the time periods during which electronic communications
between Facebook and third party websites visited by a Facebook user who is logged in
to Facebook (or logged off of Facebook) reside in (a) registers in any central processing
unit; (b) the random access memory; or (c) the hard drive of any of the computers or
servers involved in transmitting such electronic communications.
REQUEST NO. 13:
All documents concerning the methods by which Facebook obtains PII through
mobile applications.
REQUEST NO. 14:
All documents concerning Facebook’s retention of the user IDs of Facebook users
after logging out of Facebook.
REQUEST NO. 15:
All 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, including all drafts and revisions thereof, that were in effect during the Relevant
Time Period.

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REQUEST NO. 16:
All documents concerning the named Plaintiffs.
REQUEST NO. 17:
All documents describing or constituting (a) the bases for; (b) any analyses,
studies or evaluations of; and/or (c) any modification to the following:
1.

The statement that “[w]hen you log out of Facebook, we remove the

cookies that identify your particular account,” which appeared on Facebook’s online help
center in response to the question: “Does Facebook use cookies if I don’t have an
account or have logged out of my account?”
2.

The statement that “[w]e do not use cookies to create a profile of your

browsing behavior on third-party sites or to show you ads...,” which appeared on
Facebook’s online help center in response to the question: “How does Facebook use
cookies?”
3.

The statements that “we receive data whenever you visit a game,

application, or website that uses Facebook Platform or visit a site with a Facebook feature
(such as a social plug-in). This may include…if you are logged in to Facebook, your user
ID,” which appeared in Facebook’s data use policy.
4.

The statement: “Pre-Approved Third-Party Websites and Applications –

In order to provide you useful social experiences off of Facebook, we occasionally need
to provide General Information about you to pre-approved third-party websites and
applications that use Platform at the time you visit them (if you are still logged in to
Facebook)…In addition, if you log out of Facebook before visiting a pre-approved
application or website, it will not be able to access your information,” which appeared in .

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Facebook’s privacy policy (April, 22 2010) and is attached as Exhibit C to Facebook’s
response to Plaintiffs’ motion to dismiss the Complaint in this action (Dkt. No. 44).
REQUEST NO. 18:
All documents supporting any contention by Facebook that the post-log out
tracking alleged in the Complain was accidental and/or the result of a “bug.”
REQUEST NO. 19:
All documents relating to Facebook’s policies, protocols or procedures
concerning the maintenance and/or deletion of PII, including the length of time that PII is
stored.
REQUEST NO. 20:
All documents concerning Facebook’s policies, procedures or protocols for
deleting Facebook-placed cookies from the computers or browsers of Facebook users.
REQUEST NO. 21:
All documents sufficient to identify the persons or entities involved in conceiving,
drafting, reviewing, editing and finalizing (a) Facebook’s Statement of User Rights and
Responsibilities; (b) Facebook’s Data Use Policy; and/or (c) Facebook’s Terms of
Service.
REQUEST NO. 22:
All documents relating to any user PII that Facebook scrubbed or deleted from
any Facebook database.

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REQUEST NO. 23:
All documents concerning any agreement, whether formal or informal, between
Facebook and any third party, which permits Facebook to track the internet activity of
Facebook users on said third party’s website.
REQUEST NO. 24:
All documents relating to U.S. Patent Application No. 20110231240, filed
February 8, 2011 and published September 22, 2011.
REQUEST NO. 25:
All documents and communications between Facebook and any person, including
but not limited to Australian blogger Nik Cubrilovic, concerning any allegation that
Facebook tracked the internet activities of users post log-out.
REQUEST NO. 26:
All documents concerning the benefits of advertising to Facebook users based on
PII.
REQUEST NO. 27:
All documents concerning instructions, manuals, protocols, policies or methods
by which PII obtained from Facebook users when they were not logged-in to Facebook.
REQUEST NO. 28:
All documents concerning the methods used by Facebook to determine or record
whether a Facebook user is logged-in, logged-out, active or inactive.

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REQUEST NO . 29:
All documents concerning the creation, design, scope, monetization, or
modification of the following cookies: (a) the a_user cookie; (b) the c_user cookie; and
(c) the datr cookie.
REQUEST NO. 30:
All documents produced or provided to any governmental or regulatory agency or
authority, including but not limited to (a) the U.S. Congressional Bi-Partisan Privacy
Caucus; (b) the U.S. Senate Commerce Committee; (c) the Federal Trade Commission;
(d) the Office of the Data Protection Commission of Ireland; (e) the German data
protection commission; (f) the Information Commissioner’s Office; and (g) the European
Commission, in connection with any investigation or legal action concerning allegations
that Facebook has tracked its users, collected, stored and/or retained PII, or otherwise
violated consumer protection and/or privacy laws, directives or regulations.
REQUEST NO. 31:
All transcripts of any proceedings before any governmental or regulatory agency
or authority, including but not limited to (a) the U.S. Congressional Bi-Partisan Privacy
Caucus; (b) the U.S. Senate Commerce Committee; (c) the Federal Trade Commission;
(d) the Office of the Data Protection Commission of Ireland; (e) the German data
protection commission; (f) the Information Commissioner’s Office; and (g) the European
Commission, in connection with any investigation or legal action concerning allegations
that Facebook has tracked its users, collected, stored and/or retained PII, or otherwise
violated consumer protection and/or privacy laws, directives or regulations.

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Dated: November 5, 2012

STEWARTS LAW US LLP
/s/ David A. Straite
DAVID A. STRAITE
RALPH N. SIANNI
MICHELE S. CARINO
LYDIA E. YORK
1201 North Orange Street
Wilmington, DE 19801
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
BARTIMUS, FRICKLETON, ROBERTSON,
& GORNY, P.C.
EDWARD D. ROBERTSON, JR.
JAMES P. FRICKLETON
STEPHEN M. GORNY
MARY D. WINTER
EDWARD D. ROBERTSON III
11150 Overbook Road, Suite 200
Leawood, KS 66211
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Attorneys for Plaintiffs

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