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 F 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 F

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

EXHIBIT F 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 16, 2016
David A. Straite
Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, New York 10022
Re: In re Facebook Internet Tracking Litigation, Case No. 5:12-md-2314-EJD (N.D. Cal.)
Dear David:
am writing to follow up on our meet and confer of February 3, 2016.
As we stated in our prior letter and discussed on our call, we do not think expanding discovery to
document production from twenty additional custodians as well as depositions is warranted while
Facebook's motion to dismiss is pending. Undertaking such discovery now would be very costly,
burdensome, and potentially unnecessary if Judge Davila dismisses the complaint again. We ask that
you reconsider accepting our proposal to hold off on any further discovery pending the.CourYs decision
on the motion to dismiss, which, as you know, will be heard soon. If you cannot agree to this proposal,
please let us know by the end of the day on February 17, as we intend to seek appropriate relief from the
Court.
That said, to resolve some of the issues discussed on our call, we are willing to provide some additional
documents regardless of your position on future discovery, as described below.
Confidentiality Designations
As stated in our prior letter and on our call, we reviewed each document that we produced in good faith to
determine the appropriate confidentiality designation, if any, under the Protective Order. We are not
aware of any incorrect designations, and you have not provided us with any documents you believe are
misdesignated. On our call you stated that the Highly Confidential designations have made it difficult for
you to share documents with the lead plaintiffs. While we stand by our designations, to avoid burdening
the Court with this dispute, pursuant to the Protective Order which allows Protected Material to be
disclosed when "permitted in writing by the Designating Party," we are willing to permit you to share
documents marked Highly Confidential with the four named Plaintiffs in the Second Amended
Consolidated Class Action Complaint ("SAC") after they have signed the Acknowledgement and
Agreement to Be Bound, attached to the Protective Order as Exhibit A.
This permission is further conditioned on (1) your agreement not to use the fact that Facebook granted
Plaintiffs' access to these Highly Confidential documents in any argument to the Court, including, inter
alia, any dispute over the designations of specific documents, and (2) your acknowledgement that apart
from showing documents marked Highly Confidential to the four named Plaintiffs, you will continue to
treat the documents marked Highly Confidential as described in Section 7.3 of the Protective Order. If
you agree to this proposal, please respond in writing to that effect.

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

David A. Straite
February 16, 2016
Page Two
Documents Attached by Hyperlink
As stated on our call and in our letter, we disagree with your position that Google Docs linked in an email
are "attachments" to that email. Nevertheless, if you identify the Bates numbers of additional emails that
link to Google docs, we will make agood-faith search for those documents and produce any we locate
that are relevant and not privileged.
Calendar Entries
On our call you proposed that Facebook produce the entire electronic calendars for its custodians and the
additional 20 custodians you listed in your January 14, 2016 letter, except that personal appointments
could be redacted. As already stated, we will not expand document production to additional custodians.
As to the calendars for the custodians whose documents have already been produced, we reiterate our
objections to the blanket production of their calendars, if any exist, as overly broad and. unduly intrusive
and burdensome. You said on our call that you have authority supporting your position. Please provide
it, and we will consider it.
Help Center Pages
We are willing to produce additional relevant Help Center pages published during the Relevant Period
that we are able to locate.
Requests for Production
Finally, on our call we discussed Facebook's Requests for Production Nos. 45 and 46. Because the
q uotes from the Complaint referred to in those requests are no longer in the SAC, you asked if Facebook
would withdraw those requests. Given that the pleadings are not set, Facebook will not withdraw these
requests, but it is willing to agree to allow Plaintiffs to withhold producing documents responsive to those
requests for the time being.
Sincerely,

.
xyle C. Wong
Kyle C. Wong

KCW:jIc

127251315

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