In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 110

MOTION to Compel DISCOVERY AND COMPLIANCE WITH PROTECTIVE ORDER filed by Perrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. 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 3/30/2016. Replies due by 4/6/2016. (Attachments: #1 Declaration of David A. Straite, #2 Declaration of Wilfred Gomes)(Straite, David) (Filed on 3/16/2016)

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Stephen G. Grygiel (admitted pro hac vice)
SILVERMAN THOMPSON
SLUTKIN WHITE LLC
201 N. Charles Street, 26TH Floor
Baltimore, MD 21201
Tel.: [phone]
Fax: [phone]
[e-mail]

Frederic S. Fox (admitted pro hac vice)
David A. Straite (admitted pro hac vice)
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Tel.: [phone]
Fax: [phone]
[e-mail]

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Laurence D. King (206423)
Mario Choi (243409)
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
[e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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No. 5:12-md-02314-EJD
IN RE: FACEBOOK, INC. INTERNET
TRACKING LITIGATION

DECLARATION OF DAVID A. STRAITE IN
SUPPORT OF PLAINTIFFS’ MOTION TO
COMPEL DISCOVERY AND TO COMPEL
COMPLIANCE WITH PROTECTIVE
ORDER

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F.R.C.P. 26(c) and 37(a)
N.D. Cal. L.R. 37-1 and 37-2
Date:
Time:
Courtroom:
Judge:
Trial Date:

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

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DECLARATION OF DAVID A. STRAITE
No. 5:12-md-02314-EJD

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DECLARATION OF DAVID A. STRAITE

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I, David A. Straite, declare as follows:

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1.

I am an attorney admitted pro hac vice to practice before this Court in this matter. I am

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an attorney at the law firm of Kaplan Fox & Kilsheimer LLP, Interim Co-Lead Class Counsel in this

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class action against Defendant Facebook, Inc.

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2.

I submit this supplemental declaration in support of plaintiffs’ motion to compel (the

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“Motion”). The following statements are based on my personal knowledge and review of the files in

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this case and, if called on to do so, I could and would testify competently thereto.

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3.

Last year, on March 12, 2015, this Court appointed me Co-Lead Class Counsel. ECF

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No. 80. Prior to that date, I assisted Class Counsel with various discovery matters as a member of the

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Steering Committee at the direction of or with permission of former Class Counsel.

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4.

On November 5, 2012, plaintiffs served 31 requests for documents on defendant

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Facebook, Inc. Although objections were due in the ordinary course, the parties agreed that documents

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responsive to the request would not be produced until five days after the Court approved a stipulated

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protective order.

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5.

On March 6, 2014, I contacted Kyle Wong, counsel for Facebook, raising the issue of

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the proposed protective order still pending approval with the Court. I wrote, “I think the court will be

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concerned that discovery has not been taken in this case.” I conferred telephonically with Mr. Wong on

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March 14, 2014, at which time Mr. Wong stated his position that Facebook would not produce

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documents until 5 days after the proposed protective order was approved.

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6.

Following the teleconference on the same day, March 14, 2014, I emailed Mr. Wong

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asking whether Facebook would be amenable to one of two proposals. I first asked whether Facebook

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would exchange document discovery on a temporary “attorneys-eyes-only” basis pending approval of

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the protective order. The second option would be for the parties to jointly approach the Court with a

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reminder of the pending request to approve the order.

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7.

On March 26, 2014, Mr. Wong rejected both proposals, saying: “In our view, the Court

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is aware that the parties submitted the proposed Protective Order, and we should await the Court’s

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decision as agreed.” Mr. Wong continued, “We also do not believe the parties need to approach the
-1DECLARATION OF DAVID A. STRAITE
No. 5:12-md-02314-EJD

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Court again. . . . The Court is [] fully aware of the case and we would not feel comfortable contacting

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the Court again at this time given this procedural history.”

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8.

The following week, plaintiffs’ counsel notified the Court of the pending protective

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order (without Facebook joining the notice). ECF No. 74. The protective order was approved with

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modifications on April 11, 2014.

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9.

On April 16, 2014, exactly five days after the entry of the Protective Order, Facebook

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produced 12,804 documents totaling approximately 60,000 pages. Only three individual custodians

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were identified, with a small number of additional documents sourced from “Facebook” without further

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identification.

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10.

On May 12, 2014, plaintiffs filed a notice of new authority with the Court. ECF No. 76.

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On June 26, 2014, plaintiffs filed another notice of new authority. ECF No. 77.

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12.

On August 15, 2014, plaintiffs filed another notice of new authority. ECF No. 78.

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13.

On September 23, 2014, I sent a letter to Mr. Wong notifying him of a potentially

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privileged document that was likely inadvertently produced by Facebook. Our document reviewers

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noticed inconsistent redactions among similar documents and without taking a position on the validity

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of the claim, brought the issue to Facebook’s attention as a courtesy.

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14.

On September 25, 2014, plaintiffs produced documents to Facebook in response to

Facebook’s request for documents.

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15.

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Facebook.

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16.

On September 29, 2014, plaintiffs produced a supplemental batch of documents to

On September 30, 2014, Mr. Wong confirmed the inconsistent redactions identified in

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my letter of September 23, 2014, claimed inadvertent production, and clawed back the document.

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Plaintiffs’ counsel complied, and Facebook provided a replacement document.

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17.

On October 8, 2014, I sent a letter to Facebook counsel confirming destruction of the

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clawed back document discussed above, and asking to meet and confer with Facebook counsel

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regarding deficiencies in the April 16, 2014 production of documents and regarding objections made to

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various categories of documents. Mr. Wong responded that he was not available until October 30, and

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the parties thereafter agreed to meet telephonically on November 3, 2014.
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No. 5:12-md-02314-EJD

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A follow-up teleconference was held on November 19, 2014. On behalf I lead counsel, I

attended both teleconferences.

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On the meet-and-confer teleconferences, I noted with concern that only 3 custodians

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were searched for responsive documents. Facebook counsel refused to identify any other custodians

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likely to have discoverable information and instead asked me to identify custodians and bases for

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believing they would have documents. The parties agreed on the call to table further discussions until

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the first batch of documents was completely reviewed to facilitate a more informed conversation.

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onward I supervised the review of documents produced by Facebook.

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21.

On October 23, 2015, this Court granted Facebook’s motion to dismiss the First

Amended Complaint, with leave to re-plead. ECF No. 87.

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On March 12, 2015, I was appointed interim Co-Lead Class Counsel. From that date

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On November 3, 2015, I spoke with Mr. Wong regarding the Second Amended

Complaint and we discussed a proposed briefing schedule on any renewed motion to dismiss.

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23.

By this point, review of the Facebook documents had neared completion and plaintiffs’

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counsel were able to append significant Facebook documents to the Second Amended Complaint (14 of

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them under seal) on November 30, 2015.

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24.

On January 14, 2016, I contacted Mr. Wong to request a meet-and-confer regarding the

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earlier-identified deficiencies (including the overbroad objections and the narrow search list) in

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accordance with the parties’ agreement of November 19, 2014. See Facebook Motion to Stay

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Discovery dated March 2, 2016 (ECF No. 108), Wong Declaration (hereinafter “Motion to Stay”), Ex.

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D.

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On February 2, 2016, Mr. Wong agreed to speak, but noted his belief that discovery

should no longer continue given the renewed motion to dismiss. Motion to Stay, Ex. E.
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On February 3, 2016, I conferred telephonically with Mr. Wong. We discussed a

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number of peripheral topics but Mr. Wong refused to agree to search further custodians and also

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refused to even discuss any of the overbroad objections to specific document requests absent an

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agreement to stay discovery. Mr. Wong also refused my request to schedule depositions of the three

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No. 5:12-md-02314-EJD

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witnesses whose documents had been produced. I noted on the call that a motion to compel now

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seemed inevitable, and asked Mr. Wong to reconsider his position.

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On February 16, 2016, Mr. Wong wrote to me to follow up on the February 3rd

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teleconference. He was willing to address a few issues on the call, but still insisted on a broad

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discovery stay and still would not address any objections made to specific document requests absent an

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agreement to stay discovery. See Motion to Stay, Ex. F.

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The following day, February 17, 2016, I wrote to Mr. Wong and rejected his request for

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a stipulated discovery stay. However, I proposed a compromise whereby the parties would prioritize

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certain discovery during the pendency of the renewed motion to dismiss. The letter is attached to this

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Declaration as Exhibit 1, as it was not included as an exhibit to the Motion to Stay.
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On February 23, 2016, the parties held one final meet-and-confer teleconference to

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discuss plaintiffs’ offer to prioritize discovery. Mr. Wong said he needed to check with his client, and

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the parties agreed to refrain from filing discovery motions for at least one week. On March 1, 2016,

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Mr. Wong rejected plaintiffs’ offer. See Motion to Stay, Ex. H. He agreed, however, to search for

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documents related to the named plaintiffs, but only if related to their “internet search history.”

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30.

Facebook filed the Motion to Stay on the night of March 2, 2016.

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31.

The following morning, March 3, 2016, I emailed Mr. Wong as a courtesy to inform him

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that Facebook had inadvertently disclosed material in the Motion to Stay designated “highly

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confidential” by Facebook. I said, “attached to your declaration last night is exhibit D, my letter of

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January 14, 2016 requesting a discovery meet-and-confer. In several places this letter quotes or refers

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to discovery material designated ‘highly confidential’ . . . Given that you have now disclosed this

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information publicly, we interpret your filing last night to be a withdrawal of certain confidentiality

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designations, but it would be helpful to know precisely which documents (or portions of documents)

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you have de-designated, by bates number.”

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32.

On Friday, March 4, 2016, Mr. Wong responded by email, “we do not withdraw any

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confidentiality designations for these documents. The January 14 letter, however, has now been filed

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on the court docket, and may be treated accordingly under the Protective Order.”

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-4DECLARATION OF DAVID A. STRAITE
No. 5:12-md-02314-EJD

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I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct. Executed on this 16th day of March, 2016, at New York, NY.

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/s/ David Straite
David A. Straite

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-5DECLARATION OF DAVID A. STRAITE
No. 5:12-md-02314-EJD

Exhibit 1

Kaplan Fox & Kilsheimcr LLP

IIKAPLANfox

850 Third Avenue
Ne-.-\' York, NY 10022

phone [phone]

fax [phone]
email [e-mail]
W\Vw.kaplanfox.com

February 17, 2016

VIA EMAIL & U.S. MAIL
Kyle C. Wong, Esq.
Cooley LLP
101 California Street, 51h Floor
San Francisco, CA 94111-5800
Re: In re Facebook Internet Tracking Litig., 5:12-md-2314-EJD (N.D. Cal.)
Dear Kyle,
By this letter, plaintiffs respond to your letter last night dated February 16, 2016.
1.

Facebook's Request for a Discovery Stay

We cannot agree to your request for a discovery stay pending a decision on the motion
to dismiss the Second Amended Complaint ("SAC"). As you know, at the June 29, 2012 case
management conference, Judge Davila said "if there is a request to stay discovery pending
whatever, I would respectfully decline that invitation, and I think discovery should go forward as
in any other case." Tr. at 8:3-7 [ECF No. 48]. A stay is completely within Judge Davila's discretion,
Facebook's burden of showing good cause for a stay is heavy, and we are aware of no reason that
Judge Davila's view would differ today.
More importantly, given the import of the discovery produced thus far (some of which
was provided to the court with the SAC), we believe the argument for full discovery is more
compelling today than in 2012. You have also refused to produce documents which, according
to your motion to dismiss, are required to state a claim. These documents include Face book Help
Pages, which you mention in yesterday's letter and which were cited in the SAC. They also include
any documents related to the named plaintiffs, which you have wrongly refused to produce for
almost two years.
As we discussed at last months' telephonic meet-and-confer, plaintiffs have been
exceedingly deferential to Facebook's concerns regarding discovery burdens prior to final
resolution on the motion to dismiss. For example, you first produced documents in April 2014
and during our initial meet-and-confer teleconferences in November 2014, we noted with
concern that only 3 custodians were searched. We were also concerned that some of the most

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February 17,2016

important categories of documents were withheld under various objections. In good faith, on
those calls we agreed to table further discussions until we had reviewed the entirety of the
document production -in part to enable us to have more informed discussions, and in part to
accommodate your desire to minimize discovery burdens while the motion to dismiss remained
outstanding.
In the subsequent months, plaintiffs reviewed the documents deliberately before
approaching you again.
We also refrained from noticing any depositions or serving
interrogatories, again as a good faith effort to balance your concerns about discovery burdens
against the Court's directive that discovery not be stayed.
In January 2016, we informed you that we completed our document review and the time
had finally come to address the issues identified in November, 2014. There is nothing more we
can do at this point, and your refusal to produce additional documents (and refusal to negotiate
deposition dates) effectively violates Judge Davila's directive of June 29, 2012.

2.

Opportunity for Compromise

There is, however, an opportunity for continued compromise. There are some custodians
not searched and some categories of documents withheld that, if searched and produced,
respectively, we could prioritize for the time being while deferring noticing depositions until after
the next court hearing. We propose discussing the priority documents and custodians on Friday,
February 19, 2016 or Monday, February 22, 2016, at your convenience, after you have had a
chance to review our brief being filed tomorrow. We can also address the other issues in
yesterday's letter.

3.

Request for Permission to Contact Judge Davila's Clerk

If you are unwilling to discuss a compromise with us and insist on a full discovery stay, we
agree that the appropriate next step would be your motion for a discovery stay and our
opposition with cross-motion to compel discovery. I'm sure you saw that Magistrate Judge
Cousins has been assigned to our case. While Judge Cousins' individual rules require parties to
jointly approach the court with discovery disputes, our understanding is that we do not follow
Judge Cousins's rules unless and until Judge Davila refers the dispute to him. We ask for
permission to contact Judge Davila's clerk to confirm our understanding, or alternatively we can
jointly call chambers.

IIKAPLANfOX

Kyle Wong, Esq.,3
February 17, 2016

*****
Please let us know if you are available to speak on Friday or Monday.

cc:

Matthew D. Brown, Esq.
Jeffrey M. Gutkin, Esq.
Stephen G. Grygiel, Esq.