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 E 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 E

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

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

Kyle C. Wong
[phone]
[e-mail]

Via Email [e-mail]

February 2, 2016
David A. Straite
Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, NY 10022
Re: In re Facebook Internet Tracking Litigation, Case No. 5:12-md-2314-EJD (N.D. Cal.)
Dear David:
I am writing in response to your letter of January 14, 2016.
As an initial matter, while we will provide some additional documents as a follow-up to our prior document
productions as described below, we do not think any further discovery is warranted at this time. Judge
Davila granted our motion to dismiss the First Amended Complaint, largely on standing grounds, and the
deficiencies on which the dismissal was based will not be addressed by further discovery from Facebook.
Likewise, Judge Davila’s dismissal of the Wiretap Act, Stored Communications Act, and California
Invasion of Privacy Act claims rested on Plaintiffs’ allegations regarding how the Internet operates, which
will also not be impacted by further discovery from Facebook. Plaintiffs’ new claims also suffer from, inter
alia, the same Article III deficiencies as Facebook noted in its recently filed Motion to Dismiss, making
further discovery at this time unnecessary.
To date, Facebook has already produced more than 13,000 documents from several key custodians.
Notably, as you admit in your letter, Plaintiffs are just now “nearing completion” of their review of
Facebook’s production from nearly two years ago, and Plaintiffs are just now following up on a meet-andconfer call from November 2014. There is clearly no urgency to continuing or expanding discovery at this
juncture. Because any further discovery will be very costly and burdensome – particularly the collection,
review, and production of documents from the twenty additional custodians that you suggest – and will
not impact the open issues with Plaintiffs’ complaint, the parties should hold off on discovery while the
current motion to dismiss, which the Court will hear on April 28, 2016, is pending.
That being said, Facebook will provide some of the information proposed in your letter, as follows.
Facebook will also agree to provide limited additional discovery to the extent that the parties can agree to
hold off on further discovery until the resolution of the current motion to dismiss.
Custodians
You asked about documents that list the custodian as “Facebook.” These documents were collected from
Facebook’s internal “wiki” pages, and as such do not have an individual author or custodian. As to the
handful of documents without a listed custodian, they are single-page placeholders for privileged
documents that had non-privileged attachments that were produced. Thus, their custodians are the same
as the produced attachments.

Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111-5800
t: [phone] f: [phone] cooley.com

David A. Straite
February 2, 2016
Page Two
Confidentiality Designations
We disagree with your characterization that we have provided “indiscriminate blanket” designations for
the documents Facebook produced. As you know from prior correspondence and the Protective Order
the parties agreed to, Facebook takes the confidentiality of its internal documents very seriously. The
documents labeled “Confidential” or “Highly Confidential” were internal Facebook documents discussing,
among other things, confidential business strategy and the technical aspects of Facebook’s website.
These are highly sensitive matters deserving of protection under the Protective Order. Moreover, each
document produced was reviewed and in good faith labeled with a confidentiality designation, if any.
Facebook, as you recognized, produced hundreds of pages of documents with no confidentiality
designation at all. Your letter does not indicate a single document you alleged to be misdesignated. Yet
you demand that Facebook go back and look again at each individual designation for every document.
The better approach, and the one contemplated by the parties in the Protective Order, is for you to
identify any documents you believe bear the wrong designation and permit us to review them to
determine whether we will re-designate them.
Documents Attached by Hyperlink
We disagree with your characterization of documents being “attached by hyperlink.” As is customary in
document production, Facebook produced responsive non-privileged emails and their attachments. But a
hyperlink in an email is not an attachment to that email and therefore a copy of the webpage to which the
hyperlink refers need not be produced. Moreover, production of these hyperlinked webpages is not
necessary.
Several
of
the
hyperlinks
you
list
(http://forum.developers.facebook.net;
http://bugs.developers.facebook.net) are not “internal,” but rather public Internet sites that are no longer
active. Two others (http://intern.facebook.com/intern/tasks; http://our.intern.facebook.com/intern/tasks)
are internal task pages, the updates to which are automatically sent via email to every Facebook
employee assigned to that task. Thus, the entirety of the task discussion should be captured in email.
As to emails that reference Google docs, if the parties agree to forgo any additional discovery until the
court rules on the current motion to dismiss and if you identify the Bates numbers of additional emails that
link to Google docs, we will make a good-faith search for those documents and produce any that are
relevant and not privileged.
Calendar and Meeting Notes
Calendar invites and requests and meeting notes were included in the email collection and production to
the extent they hit on search terms. To the extent there are particular meetings for which you think more
information is relevant, we are willing to meet and confer regarding providing that information if the parties
agree to forgo any additional discovery until the court rules on the current motion to dismiss.
Facebook Objections to Plaintiff Document Requests
We are willing to discuss the issues raised in this section of your letter, but as explained above, we do not
believe further discovery is warranted at this time.
Help Center Pages
Your letter’s assertion that “Facebook has not produced any Help Center pages” is incorrect. See
FB_MDL_00000251, FB_MDL_00000252. Nevertheless, we are willing to do an additional search to

Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111-5800
t: [phone] f: [phone] cooley.com

David A. Straite
February 2, 2016
Page Three
determine whether there are additional relevant Help Center pages from the Relevant Period if the parties
agree to forgo any additional discovery until the court rules on the current motion to dismiss.
Non-Responsive Content Redacted
In its production Facebook redacted a minimal amount of highly sensitive non-responsive content. The
information has no relevance to this action and is therefore not responsive to any of Plaintiffs’ document
requests.
Plaintiffs’ Discovery Responses
We note that during our November 2014 meet-and-confer call, Plaintiffs agreed to produce documents
responsive to Facebook’s requests for production 4, 7, 8, 20, 43, and 45. Plaintiffs also agreed to
reconsider their objections to requests 1, 9, 12, 13, 29, 44, and 46. Finally, Plaintiffs agreed to investigate
and confirm whether production in response to request 2 is complete. We have not heard from Plaintiffs
on any of these issues since the November 2014 call.
We are available to discuss these issues on the afternoon of February 3 and most of the day February 4.
Please let us know if you are available then.
Sincerely,

Kyle C. Wong
Kyle C. Wong

KCW:jlc

126770578

Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111-5800
t: [phone] f: [phone] cooley.com