In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 114

RESPONSE (re #110 MOTION to Compel DISCOVERY AND COMPLIANCE WITH PROTECTIVE ORDER ) Defendant Facebook, Inc.s Opposition to Plaintiffs Motion To Compel filed byFacebook Inc.. (Attachments: #1 Declaration of Natalie Naugle, #2 Declaration of Adam C. Trigg, #3 Exhibit 1 to Trigg Declaration)(Brown, Matthew) (Filed on 3/30/2016)

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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
OPPOSITION TO PLAINTIFFS’ MOTION
TO COMPEL

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Date:
Time:
Courtroom:
Judge:
Trial Date:

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

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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TABLE OF CONTENTS

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Page

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I.

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

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II.

STATEMENT OF FACTS ................................................................................................. 2
A.

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Procedural Background ........................................................................................... 2

B.

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Discovery to Date.................................................................................................... 3

III.

LEGAL STANDARD ......................................................................................................... 5

IV.

ARGUMENT ...................................................................................................................... 5
A.

Plaintiffs’ Motion Should Be Denied for the Reasons Articulated in
Facebook’s Motion for a Temporary Protective Order. .......................................... 5

B.

Plaintiffs Fail to Show that 26 Additional Custodians Have Discoverable
Information Under Rule 26(b)(1). ........................................................................... 6

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C.

Plaintiffs’ Four Requests for Production Seek Documents that Are Not
Relevant to the Case and Are Unduly Burdensome. ............................................... 8

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D.

Facebook’s Limited Redactions Are Appropriate................................................. 12

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E.

Plaintiffs’ Request for Facebook to Re-Assign its Confidentiality
Designations Should Be Denied. .......................................................................... 14

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1.

Plaintiffs Have Waived Their Challenges to Facebook’s
Designations. ............................................................................................. 14

2.

Facebook Designated the Documents in Good Faith. ............................... 16

3.

Plaintiffs Are Not Prejudiced By Facebook’s Designations. .................... 17

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F.
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V.

Plaintiffs’ Motion is Premature and Therefore Should Be Denied or Held in
Abeyance. .............................................................................................................. 18

CONCLUSION ................................................................................................................. 18

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

-i-

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

TABLE OF AUTHORITIES

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Page(s)

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Cases

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Abbott v. Lockheed Martin Corp.,
No. 06-cv-0701 MJR, 2009 WL 511866 (N.D. Ill. Feb. 27, 2009) ....................................12, 13

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12
13

Apple Inc. v. Samsung Elecs. Co.,
No. 12-CV-0630-LHK (PSG), 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug.
14, 2013) .............................................................................................................................5, 6, 8
Bank of Montreal v. Optionable, Inc.,
No. 09 Civ. 7557 GBD JLC, 2011 WL 6259668 (S.D.N.Y. Dec. 15, 2011) ............................17
Beauchem v. Rockford Prods. Corp.,
No. 01-C 50134, 2002 WL 1870050 (N.D. Ill. Aug. 13, 2002) ................................................13
Brown v. W. Corp.,
No. 8:11CV284, 2013 U.S. Dist. LEXIS 116278 (D. Neb. Aug. 16, 2013) ...............................7
In re Cathode Ray Tube (CRT) Antitrust Litig.,
No. MDL No. 1917, 2015 U.S. Dist. LEXIS 139387 (N.D. Cal. July 9, 2015) .........................9

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Compaq Computer Corp. v. Packard Bell Elecs., Inc.,
163 F.R.D. 329 (N.D. Cal. 1995) ..............................................................................................10
Compsource Oklahoma v. BNY Mellon, N.A.,
No. CIV-08-469-KEW, 2011 WL 2472547 (E.D. Ok. June 21, 2011) ....................................14
Delaware Display Grp. LLC v. Lenovo Grp. Ltd.,
Nos. 13-2108-RGA, 13-2109-RGA, 13-2112-RGA, 2016 WL 720977 (D. Del.
Feb. 23, 2016) ...........................................................................................................................12
Doyle v. Gonzales,
No. CV-10-0030-EFS, 2011 U.S. Dist. LEXIS 85115 (E.D. Wash. Aug. 2,
2011) .........................................................................................................................................18
Fiechtner v. Am. Family Mut. Ins. Co.,
No. 09-CV-02681-REB-MEH, 2010 WL 5072006 (D. Colo. Dec. 7, 2010) ...........................15
Fort Worth Emples. Ret. Fund v. J.P. Morgan Chase & Co.,
297 F.R.D. 99 (S.D.N.Y. 2013) ..................................................................................................7
Healthtrio, LLC v. Aetna, Inc.,
No. 12-cv-03229-REB-MJW, 2014 WL 6886923 (D. Colo. Dec. 5, 2014) .............................16
Lange v. Schilling,
163 Cal. App. 4th 1412 (2008) .................................................................................................14

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

ii.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)

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Page(s)
McNabb v. City of Overland Park,
No. 12CV-2331 CM/TJJ, 2014 WL 1152958 (D. Kan. Mar. 21, 2014) ...................................13
Orion Power Midwest, L.P. v. Am. Coal Sales Co.,
No. 2:05-cv-555, 2008 WL 4462301 (W.D. Pa. Sept. 30, 2008)..............................................13
Platt Pac., Inc. v. Andelson,
6 Cal. 4th 307 (1993) ................................................................................................................15
Procaps S.A. v. Pantheon Inc.,
No. 12-24356-CIV-GOODMAN, 2015 WL 4430955 (S.D. Fla. July 20, 2015) .....................16
Reyes v. Horel,
No. C 08-4561 RMW (PR), 2009 U.S. Dist. LEXIS 63850 (N.D. Cal. July 14,
2009) ...........................................................................................................................................5
Schiller v. City of N.Y.,
Nos. 04Civ.7922(KMK)(JCF), 04Civ.7921(KMK)(JCF),
05Civ.8453(KMK)(JCF), 2006 WL 3592547 (S.D.N.Y. Dec. 7, 2006)...................................13
Weidenhamer v. Expedia, Inc.,
No. C14-1239RAJ, 2015 U.S. Dist. LEXIS 154746 (W.D. Wash. Nov. 13,
2015) .......................................................................................................................................6, 7
Statutes
Cal. Penal Code
§ 502(e)(4).................................................................................................................................11
§ 631(a) .....................................................................................................................................11

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Other Authorities
N.D. Cal. L. R.
6-2 .............................................................................................................................................15
7-2(c) ...........................................................................................................................................6
37-1 .............................................................................................................................................6
37-2 ................................................................................................................................... passim

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Fed. R. Civ. P.
12(b)(1) .......................................................................................................................................3
12(b)(6) .......................................................................................................................................3
26(a) ..........................................................................................................................................11
26(b)(1) ............................................................................................................................. passim
26(b)(2) ...........................................................................................................................1, 5, 7, 8

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

-iii-

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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I.

INTRODUCTION

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Plaintiffs’ Motion to Compel (“Motion”) demonstrates the subdued and half-hearted

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approach to discovery they have taken in this case. For instance, Plaintiffs seek to compel the

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production of documents from 26 additional custodians, but make no effort to show why any of

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this additional discovery is relevant and proportional.

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confidentiality designations under the Protective Order, but entirely ignore the procedural

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requirements set forth in that Order for challenging such designations. These significant defects

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and the many others discussed below warrant the Motion’s denial.

Plaintiffs also contest Facebook’s

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As an initial matter, Plaintiffs’ Motion makes no effort to comply with Civil Local Rule

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37-2, which requires that a party moving to compel discovery “detail the basis for the party’s

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contention that it is entitled to the requested discovery and must show how the proportionality and

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other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied.” Plaintiffs don’t even identify which

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of the 26 individuals referenced in the Motion they want to compel production from, let alone

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provide the detailed explanation of relevance and proportionality required by the Rule. Given

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that Facebook has already produced nearly 13,000 documents and 65,000 pages of discovery to

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date, Plaintiffs’ failure to satisfy the basic requirements of the Rule is particularly glaring.

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Plaintiffs similarly do not provide the requisite information for the document requests on which

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they have moved. Having failed to meet their burden, Plaintiffs’ Motion should be denied with

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respect to expanded discovery.

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Likewise, Plaintiffs contend that certain redactions in Facebook’s production are improper

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but do not attach even a single example of a redaction they claim is objectionable. The minor

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redaction of which Plaintiffs complain covers at most one or two words in a multi-page

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document.

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irrelevant to this case. More importantly, Plaintiffs do not contend or even suggest that the

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limited redactions hide relevant information.

The redaction contains highly sensitive business information that is completely

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Plaintiffs also did not challenge Facebook’s confidentiality designations within the time

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frame required by the Protective Order, which states that failure to file a motion with the Court in

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the allotted time “shall automatically waive any challenge.” Plaintiffs exacerbated their blatant

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

disregard for the Protective Order by refusing to follow the only method for challenging

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confidentiality provided in the Order: the identification of specific documents whose designations

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they felt were improper. This mechanism, as Facebook repeatedly noted during the meet-and-

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confer process, exists both to encourage the resolution of disputes without Court intervention and

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to give the designating party time to consider the challenging party’s arguments. Even were the

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Court to overlook these fundamental violations (which it should not), Facebook did not mass-

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designate documents for confidentiality but instead undertook a document-by-document review to

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make its determination as the Protective Order mandates.

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Finally, the Motion tries to create a false sense of urgency that is utterly at odds with

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Plaintiffs’ discovery efforts thus far. The meet-and-confer process for the requests at issue

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dragged on for well over a year because of Plaintiffs’ laxity. Plaintiffs took 14 months, for

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instance, to identify potential new custodians and to renew discussions on the disputed requests

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for production. All these demands, moreover, came only after this Court granted Facebook’s

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Motion to Dismiss in its entirety and on the same day that Facebook filed its Motion to Dismiss

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the Second Amended Complaint.

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For these reasons and those that follow, Facebook respectfully requests the Court deny the

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Motion in its entirety.

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II.

STATEMENT OF FACTS

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A.

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This Court granted Facebook’s motion to dismiss the first amended complaint (“FAC”) in

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its entirety on October 23, 2015 (“Order”) based on Plaintiffs’ failure to establish standing and to

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plead statutory claims adequately. Plaintiffs filed a second amended complaint (“SAC”) on

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November 30, 2015. (Dkt. No. 93.) The SAC included new allegations regarding how the

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Internet and cookies function, based on publicly available information, and did not add a single

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allegation on this topic from any of the thousands of documents Facebook produced while the

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motion to dismiss the FAC was pending. (See SAC ¶¶ 28-42.) The SAC also left the allegations

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regarding Plaintiffs’ alleged harm unchanged—adding nothing from Facebook’s productions.

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(Compare FAC ¶¶ 10-14, 111-125 with SAC ¶¶ 129-143.) Facebook’s Motion to Dismiss the

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Procedural Background

2.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

SAC (Dkt. No. 101) was filed on January 14, 2016 and will be heard by this Court in less than a

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month, on April 28, 2016. In the pending Motion to Dismiss, Facebook demonstrates why Rule

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12(b)(1), (6), and this Court’s previous Order require dismissal of the SAC with prejudice.

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B.

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The Parties’ Productions.

Discovery to Date
As explained in more detail in Facebook’s Motion for

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Protective Order Temporarily Staying Further Discovery (“Motion for Protective Order,” Dkt.

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No. 108), Plaintiffs have only marginally engaged in discovery during the four-plus years this

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case has been pending. Although discovery commenced on June 29, 2012, Plaintiffs waited five

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months, until November 2012, to serve their first (and to date only) discovery requests, which

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consisted of thirty-one requests for production. (See Wong Decl., Ex. A.)1 On January 25, 2013,

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Facebook served objections and responses to Plaintiffs’ Requests for Production and produced all

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non-sensitive documents. (Wong Decl., Ex. B; Wong Decl. ¶ 4.)2 The Parties agreed that both

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parties would produce confidential documents within five days of the approval of a stipulated

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protective order. (Declaration of Adam Trigg in support of Facebook’s Opposition to Plaintiffs’

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Motion to Compel (“Trigg Decl.”) ¶ 5.) Plaintiffs thereafter failed to respond to Facebook’s

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proposed revisions to a draft stipulated protective order for six months. The stipulated protective

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order was eventually finalized on September 2013, and approved on April 11, 2014 (Dkt. No. 75).

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Five days later, Facebook produced approximately 13,000 documents, totaling almost 65,000

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pages, from Facebook’s internal repositories and three custodians with the information most

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relevant to Plaintiffs’ claims. (Wong Decl. ¶ 7.) During the same time period, the four named

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plaintiffs produced less than 50 documents (505 pages total). (Id.)

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Facebook’s production came from central repositories, public-facing facebook.com pages,

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and several Facebook engineers who had the most familiarity with the facts alleged in the FAC.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs support their Motion with citations to the Declaration of Kyle Wong filed in support of
Facebook’s Motion for Protective Order (Dkt. No. 108-1 (“Wong Decl.”)). To avoid duplication
and confusion, Facebook will also cite, where possible, to the documents attached to the Wong
Declaration.

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Although Plaintiffs contend that Facebook did not produce any documents until the Court
approved a protective order, Facebook did, in fact, produce public documents before the
Protective Order was entered, as the parties had agreed. (Wong Decl. ¶¶ 4-5.)
3.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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(Trigg Decl. ¶ 2.) Attorneys reviewed each document to determine, among other things, if it was

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responsive to the document requests, privileged, confidential, and/or whether redactions were

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needed. (Id. ¶ 3.)

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An attorney reviewed documents for highly sensitive business information and

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approximately 140 of the nearly 13,000 documents Facebook produced (1% of the total

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production) were partially redacted to protect information regarding non-relevant business

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projects so highly sensitive that most Facebook employees are not even aware of them. (Id. ¶ 6;

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Declaration of Natalie Naugle in support of Facebook’s Opposition to Plaintiffs’ Motion to

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Compel (“Naugle Decl.”) ¶ 2.) As with the other produced documents, each redacted document

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was reviewed individually by an attorney for relevance. (Trigg Decl. ¶ 6.) The redactions were

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narrowly tailored—the great majority of them are less than a sentence long—and do not conceal

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any material relevant to the issues in the case. (Id.)

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The Meet-and-Confer Process. Plaintiffs did not follow up on Facebook’s discovery

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responses for almost seven months, until November 3, 2014. The Parties held a meet-and-confer

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on that date and again on November 19, 2014, during which Plaintiffs committed to producing a

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list of custodians from which they believed Facebook should collect and produce documents.

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(Wong Decl. ¶ 8.) During these meet-and-confers, Plaintiffs did not raise any issues with respect

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to the confidentiality designations or redactions. (Trigg Decl. ¶ 7.) Plaintiffs then did nothing for

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14 months. On January 14, 2016, Plaintiffs finally followed up on the November 2014 meet-and-

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confers. (Wong Decl., Ex. D.) Plaintiffs acknowledged that they had not yet finished reviewing

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the documents Facebook had produced almost two years earlier but nonetheless indicated that

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they believed that production from and depositions of at least 20 additional custodians was

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warranted—all without providing any explanation of the relevance of 17 of the additional 20.

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(Id. at 1.)

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Throughout the meet-and-confer process, Facebook made every effort to narrow or

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resolve the dispute, taking into account the procedural posture of the case. Over the past two

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months, Facebook has met and conferred with Plaintiffs regarding various discovery issues,

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including those that are the subject of this Motion, in an effort to avoid burdening the Court. Far

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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from granting itself a unilateral stay, as Plaintiffs have charged (Mot. at 2), Facebook agreed that

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regardless of its move for a temporary stay, it would collect and produce certain documents and

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data requested by Plaintiffs, including Help Center pages, Google Docs produced in emails, and

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certain cookie data related to named Plaintiffs. This latter undertaking is no easy feat; Facebook

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must attempt to query cookie data from the relevant time period to determine whether it can

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locate and produce Plaintiffs’ cookie data regarding their Internet browsing history. (Wong

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Decl., Ex. H.) Additionally, Facebook further proposed to schedule depositions, expand the

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number of custodians, and provide a subset of the documents identified in Plaintiffs’ RFPs shortly

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after the Court’s decision on the Motion to Dismiss. (Trigg Decl., Ex. 1.) Plaintiffs refused, and

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this Motion and Facebook’s Motion for Protective Order followed. (Id.)

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III.

LEGAL STANDARD

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Plaintiffs, as the moving party, bear the burden to show that the discovery sought is

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“relevant to any party’s claim or defense and proportional to the needs of the case . . . .” Fed. R.

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Civ. P. 26(b)(1); Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013 U.S. Dist.

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LEXIS 116493, at *29 (N.D. Cal. Aug. 14, 2013). Specifically, Plaintiffs “detail the basis for the

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party’s contention that it is entitled to the requested discovery and must show how the

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proportionality and other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied,” as Civil Local

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Rule 37-2 requires.

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IV.

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ARGUMENT
A.

Plaintiffs’ Motion Should Be Denied for the Reasons Articulated in
Facebook’s Motion for a Temporary Protective Order.

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If Facebook prevails on its Motion for Protective Order seeking a stay of discovery

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pending resolution of Facebook’s Motion to Dismiss, Plaintiffs’ Motion to Compel should

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correspondingly be denied. See, e.g., Reyes v. Horel, No. C 08-4561 RMW (PR), 2009 U.S. Dist.

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LEXIS 63850, at *6 (N.D. Cal. July 14, 2009) (simultaneously granting defendants’ motion to

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stay discovery and denying plaintiff’s motion to compel discovery). As Facebook articulated in

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its Motion for Protective Order, the pending Motion to Dismiss is potentially (and likely)

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dispositive of all claims in this case. The Court already dismissed Plaintiffs’ FAC, and their SAC

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

5.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

does not overcome the fatal defects identified in the Court’s Order. (Motion for Protective Order

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at 10; Reply ISO Protective Order at 3.) Moreover, no additional discovery is necessary to decide

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the Motion to Dismiss and Plaintiffs never claim that the discovery they seek here is relevant to

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that Motion. (Motion for Protective Order at 11; Reply ISO Protective Order at 4.) Under these

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circumstances, Facebook’s Motion for Protective Order should be granted and Plaintiffs’ Motion

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to Compel should be denied. But even if the Court denies Facebook’s Motion for Protective

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Order, Plaintiffs’ Motion should be denied, as explained infra.

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B.

Plaintiffs Fail to Show that 26 Additional Custodians Have Discoverable
Information Under Rule 26(b)(1).

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Even if Plaintiffs’ request for a massive expansion of discovery to include another 26

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custodians was not unreasonable given the procedural posture of this case, Plaintiffs fail to

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establish that this additional discovery is warranted at this time for several key reasons.

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As an initial matter, Plaintiffs’ request is procedurally improper. Plaintiffs’ Motion

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vaguely requests that Facebook be compelled to search “more than 3 employees,” but then

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proceeds to list by name 11 employees and to reference a meet-and-confer letter that lists 26

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employees, without explaining, among other things, the precise relief that they seek. Facebook

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cannot determine which (or how many) additional custodian searches Plaintiffs are seeking to

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have compelled, a challenge that is compounded by Plaintiffs’ failure to file a proposed order (in

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violation of Civil Local Rule 7-2(c)). Moreover, Plaintiffs’ Motion to Compel lists at least two

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employees (Matt Kelly and Aimee Westbrook) who Plaintiffs have not mentioned before, and for

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which Plaintiffs have therefore failed to satisfy their meet-and-confer obligations under Civil

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Local Rule 37-1.

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Plaintiffs also fail to explain the relevance of any of the individuals listed in their motion

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or in their meet-and-confer correspondence and fail to show how the proportionality factors have

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been met, as required by Civil Local Rule 37-2. Apple Inc., 2013 U.S. Dist. LEXIS 116493, at

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*29. First, Plaintiffs do not offer a single fact to support the relevance of 11 of the 26 additional

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custodians they seek to add. Their failure to meet their burden mandates denial of the Motion.

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See Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 U.S. Dist. LEXIS 154746, at *19

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

6.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

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(W.D. Wash. Nov. 13, 2015) (denying motion to add custodians where plaintiff failed to show

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that the search would reveal any more relevant information).

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Second, Plaintiffs vaguely reference 12 additional proposed custodians by pointing to

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various paragraphs in the SAC. (Mot. at 6.) These paragraphs, however, do not “detail the basis

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for the [Plaintiffs’] contention that [they are] entitled to the requested discovery” nor do they

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“show how the proportionality and other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied” as

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required under Civil Local Rule 37-2. For example, Plaintiffs point to a paragraph in the SAC

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that merely identifies three individuals as recipients of emails from third parties. (SAC ¶¶ 45,

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77.) Another set of paragraphs simply mention several Facebook employees who wrote emails

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allegedly discussing Facebook’s efforts regarding logged-in users.3 (SAC ¶¶ 68, 69.) But these

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threadbare allegations do not demonstrate the relevance of these proposed custodians to the issues

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alleged in the SAC. See Brown v. W. Corp., No. 8:11CV284, 2013 U.S. Dist. LEXIS 116278, at

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*22 (D. Neb. Aug. 16, 2013) (denying motion to compel additional custodians, noting that the

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fact that individuals “have either sent or received communications regarding the plaintiff” was not

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specific enough to show the relevance of the requested discovery).

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Lastly, with respect to the three employees Plaintiffs claim are knowledgeable about “key

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issue[s]” (Mot. at 6), their arguments are insufficient. Plaintiffs rest their relevance arguments on

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two emails in which current custodians suggest that other Facebook employees were also

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knowledgeable about certain issues—the lu cookie and whether cookies could be associated with

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a person’s location. But the mere mention of these individuals as knowledgeable about Facebook

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cookies does not establish that they were involved in any of the conduct at issue in this case.

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Plaintiffs are not entitled to discovery from every single one of Facebook’s many engineers who

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may know something about a cookie. See Fort Worth Emples. Ret. Fund v. J.P. Morgan Chase &

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Co., 297 F.R.D. 99, 107 (S.D.N.Y. 2013) (denying motion to compel discovery from additional

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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For example, Aimee Westbrook was listed as a recipient (among many others) of an email from
a third party. (SAC Ex. X.) Westbrook did not participate in any manner on the resulting email
chain, and was subsequently dropped from the chain when Facebook engineers began discussing
technical issues. Neither Aimee Westbrook nor Matt Kelly have been mentioned by Plaintiffs in
prior meet-and-confer correspondence.
7.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

custodians where plaintiffs failed to show that the additional custodians would provide unique

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relevant information not already obtained); Brown, 2013 U.S. Dist. LEXIS 116278, at *22. As it

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is Plaintiffs’ burden to establish the relevance of the discovery they seek, their Motion to Compel

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should be denied. Apple Inc., 2013 U.S. Dist. LEXIS 116493, at *29.

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Plaintiffs’ request for a massive expansion of discovery is also unwarranted as it would

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impose a substantial burden that is entirely unjustified. Fed. R. Civ. P. 26(b)(1). Recognizing

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this, Plaintiffs fail to address the proportionality requirements of Rule 26(b)(1) and thus violate

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Civil Local Rule 37-2. Civil L.R. 37-2 (a party bringing a motion to compel “must show how the

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proportionality and other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied”). Facebook has

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already provided more than 65,000 pages from the three custodians identified as most likely to

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possess relevant information. The burden of expanding discovery to an additional 26 custodians

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is extraordinary. Production of documents from these individuals will require a considerable

13

number of hours of attorney time to review for relevancy, confidentiality, and privilege.

14

Moreover, any presumed importance and urgency of the discovery sought here is belied

15

by Plaintiffs’ substantial delay in seeking it. Plaintiffs first asked that Facebook search additional

16

custodians in November 2014.

17

custodians to be searched, Plaintiffs acknowledged that they were unable to do so because they

18

had not even finished reviewing the documents Facebook produced six months earlier. Plaintiffs

19

finally provided a list of 26 additional custodians in a letter on January 14, 2016, well over a year

20

later. If these additional custodians were “importan[t] . . . in resolving the issues,” Fed. R. Civ. P.

21

26(b)(1), Plaintiffs might have considered requesting discovery from them sometime in the past

22

four years. Plaintiffs’ failure to do so suggests opportunistic gamesmanship rather than a sincere

23

desire to obtain information relevant to the merits of their case.

24
25

C.

After Facebook suggested that Plaintiffs identify additional

Plaintiffs’ Four Requests for Production Seek Documents that Are Not
Relevant to the Case and Are Unduly Burdensome.

26

Plaintiffs’ Motion also fails to show why the broad categories of documents they seek

27

meet the standard set forth under Rule 26(b)(1). Plaintiffs instead quote an obsolete version of

28

Rule 26(b)(1) (Mot. at 5) and fail to address the rule’s new mandate—applicable since December

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

8.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

1, 2015—that discovery must be both “relevant to any party’s claim or defense and proportional

2

to the needs of the case,” again violating Civil Local Rule 37-2. Facebook has already agreed to

3

investigate whether it can locate and produce cookie data related to the named Plaintiffs for the

4

class period. Plaintiffs’ remaining requests are overbroad and irrelevant, and thus Plaintiffs’

5

Motion to Compel should be denied.

6

Request No. 16: Plaintiffs seek “[a]ll documents concerning the named Plaintiffs.” As an

7

initial matter, Facebook has agreed to, and is in the process of trying to identify whether it can

8

locate and produce cookie data from April 22, 2010 to September 26, 2011 for the named

9

Plaintiffs that relates to their Internet browsing. But Plaintiffs want even more, making the

10

unsupported contention that they are entitled to all documents concerning the named Plaintiffs,

11

“without limitation.” (Mot. at 7 (emphasis added).) Plaintiffs’ request is overbroad, not relevant,

12

and unduly burdensome, and should therefore be denied.

13

First, Plaintiffs’ request is not confined to the matters at issue in this case, potentially

14

encompassing, inter alia, documents dated long before and long after the time period at issue;

15

documents related to Plaintiffs’ personal profile and use of Facebook’s site that are clearly

16

unrelated to Plaintiffs’ claims and are equally available to Plaintiffs; and documents that include

17

Facebook users who are not plaintiffs here, like Facebook Messages with non-parties, and Likes

18

and Shares of non-parties’ Facebook posts. Plaintiffs’ request is thus properly denied as overly

19

broad. See In re Cathode Ray Tube (CRT) Antitrust Litig., No. MDL No. 1917, 2015 U.S. Dist.

20

LEXIS 139387, at *169 (N.D. Cal. July 9, 2015) (document requests that were unbounded in time

21

and not limited to the subject matter in dispute were properly objectionable).

22

Second, Plaintiffs do not explain the relevancy of their expansive request, again violating

23

Civil Local Rule 37-2. Instead, Plaintiffs claim that the SAC “also alleges improper gathering

24

and aggregation of other personal information” and they obliquely suggest that Facebook has

25

improper motives for withholding the requested documents.4 (Mot. at 8.) But Plaintiffs do not

26
4

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ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs’ suggestion that there is some mystery as to why Facebook has offered to produce the
named Plaintiffs’ cookie data regarding their Internet browsing history during the relevant period,
and not “all documents” without limitation is disingenuous at best. As Facebook explained in
meet-and-confer calls and letters, Plaintiffs’ request for “all documents” related to each of the
9.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

cite to any allegation in the SAC addressing this newly-minted claim of “improper gathering and

2

aggregation of other personal information.” Nor do Plaintiffs explain how the aggregation of

3

information other than Internet browsing history relates to either party’s claims or defenses.

4

Third, the discovery sought through Request Number 16 is disproportional to the needs of

5

the case. Because Plaintiffs have failed to articulate any reason the discovery is necessary in

6

resolving the issues in this case, the burden of the discovery by definition outweighs its likely

7

benefit. Cf. Compaq Computer Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335-36 (N.D.

8

Cal. 1995) (“[I]f the sought-after documents are not relevant nor calculated to lead to the

9

discovery of admissible evidence, then any burden whatsoever . . . would be by definition

10

‘undue.’”). Moreover, identifying, collecting and producing all documents about the named

11

Plaintiffs would require substantial amounts of employee and attorney time to identify, review,

12

and prepare data and documents for production. (Wong Decl. ¶ 16.)

13

The other requirements of Rule 26(b)(1) further counsel against permitting the requested

14

discovery. Request Number 16 includes information about Plaintiffs’ Facebook profile and other

15

information Plaintiffs have posted to Facebook that is equally accessible to Plaintiffs. (Wong

16

Decl., Ex. B at 16.) Plaintiffs’ Request also encompasses private messages with other Facebook

17

users and thus implicates the privacy interests of non-parties.

18

Request No. 8: Plaintiffs seek “[a]ll documents relating to studies, analyses or evaluations

19

of Facebook’s actual or potential revenue or profits associated with personalized advertisements

20

whereby Facebook users or non-users are described as users of a particular product or service.”

21

First, this request is facially overbroad. Delivery of personalized advertisements to non-users of

22

Facebook has no relevance to Plaintiffs’ claims, which are based on allegations that Facebook

23

was able to link Internet browsing activity with Facebook users’ profiles.

24

Second, even if this request was confined to studies, analyses or evaluations of revenue

25

associated with delivering personalized advertisements to Facebook users, it would still not be

26

relevant to any party’s claim or defense. The SAC does not allege that the Internet browsing

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ATTORNEYS AT LAW
SAN FRANCISCO

named plaintiffs is, inter alia, vastly overbroad and burdensome, and seeks irrelevant
information.
10.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

history information that Facebook allegedly collected while Facebook users were logged off was

2

used to display personalized advertisements. In fact, the SAC concedes that Facebook only

3

provides advertisers the ability to engage with Facebook users based on information that

4

Facebook users voluntarily provide to Facebook. (SAC ¶ 131 (alleging that Facebook explains to

5

advertisers that ads are personalized based on “information [Facebook users] have chosen to share

6

with us such as their age, location, gender, or interests”).) Thus the documents that Plaintiffs seek

7

would not establish the amount of any profits attributable to the conduct of which Plaintiffs

8

complain. Likewise, since the documents sought do not establish profits, they certainly would not

9

establish a “profit motive,” relevant to willfulness under Cal. Penal Code § 631(a) or Cal. Penal

10

Code § 502(e)(4).

11

Request No. 9: Plaintiffs seek “[a]ll documents concerning studies, analyses or

12

evaluations by Facebook of the value, including monetary value, of PII [personally identifiable

13

information].” This request is facially overbroad to the extent that it encompasses more than

14

evaluations of the value of the Internet browsing history of logged out Facebook users.

15

However, even if Plaintiffs’ request was confined to Facebook’s studies, analyses, or

16

evaluations of the value of Internet browsing history, it would still not be relevant. Plaintiffs

17

allege that Facebook’s studies concerning the value of personally identifiable information are

18

relevant because “plaintiffs have alleged that the improperly tracked PII has actual monetary

19

value . . . .” (Mot. at 8-9.) But the allegations in Plaintiffs’ SAC are only relevant to the extent

20

that they bear on the claims and defenses at issue in the case. Fed. R. Civ. P. 26(a). Plaintiffs’

21

SAC alleges that the Internet browsing history allegedly obtained by Facebook has value. (SAC

22

¶¶ 129-143.) Plaintiffs have used these allegations to attempt to establish standing and damages.

23

But this Court has previously held that allegations about the value of PII does not establish

24

economic harm, and thus are not relevant to the issues of standing or of damages. (Order at 10.)

25

Thus, any analyses performed by Facebook of the value of PII are irrelevant to the claims or

26

defenses in the case.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Request No. 24: This request seeks documents related to U.S. Patent Application No.
20110231240.

The documents sought under this request are not discoverable because the
11.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

technical process disclosed in the patent application is unrelated to the techniques and technology

2

at issue in this case. Plaintiffs incorrectly contend that Facebook “patented the very activity

3

which is the subject of this lawsuit.” (Mot. at 9.) As the SAC acknowledges, U.S. Patent

4

Application No. 20110231240 involves use of a “tracking pixel” to log actions taken on a third

5

party website, not cookies. (SAC ¶ 81.) Plaintiffs do not contend that this invention was utilized

6

to track Plaintiffs’ Internet browsing history. The timing of the patent’s filing—nearly a year

7

after Plaintiffs allege the tracking began—further indicates that the methods covered by the patent

8

are not at issue here. Again, Plaintiffs fail to show that the documents are relevant and that the

9

discovery burden is outweighed by any benefit.

10

D.

11

As described above, Facebook produced 1% of its production with narrow redactions of

12

non-relevant business projects so highly sensitive that most Facebook employees are not even

13

aware of them. The great majority of redactions, reviewed individually by an attorney, are less

14

than a sentence long and none of them conceal any material relevant to the case. Without

15

claiming any actual relevance, Plaintiffs seek removal of these redactions, but their arguments are

16

without merit.

Facebook’s Limited Redactions Are Appropriate.

17

First, Plaintiffs claim Facebook has “no basis” to redact highly sensitive, non-relevant

18

information from a limited set of documents, and they seek the production of all documents

19

redacted on relevance grounds. (Mot. at 9.) Yet, the very cases they cite explicitly recognize that

20

a number of federal courts have permitted parties to redact in certain instances. See, e.g.,

21

Delaware Display Grp. LLC v. Lenovo Grp. Ltd., Nos. 13-2108-RGA, 13-2109-RGA, 13-2112-

22

RGA, 2016 WL 720977, at *6 n.11 (D. Del. Feb. 23, 2016) (collecting cases). Indeed, a number

23

of courts have refused to compel production of unredacted information where, as here, the

24

plaintiffs have made no showing that a single redaction improperly includes responsive material

25

relevant to the case. See, e.g., Abbott v. Lockheed Martin Corp., No. 06-cv-0701 MJR, 2009 WL

26

511866, at *3 (N.D. Ill. Feb. 27, 2009) (“This Court concludes that the redaction of information

27

regarding the defined benefit plans is acceptable because that information is not relevant to the

28

issues in this case and not reasonably calculated to lead to the discovery of admissible

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

12.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

evidence.”); Schiller v. City of N.Y., Nos. 04Civ.7922(KMK)(JCF), 04Civ.7921(KMK)(JCF),

2

05Civ.8453(KMK)(JCF), 2006 WL 3592547, at *7 (S.D.N.Y. Dec. 7, 2006) (finding that minutes

3

from a protest movement meeting could be unilaterally redacted where the content was

4

irrelevant); Beauchem v. Rockford Prods. Corp., No. 01-C 50134, 2002 WL 1870050, at *1-2

5

(N.D. Ill. Aug. 13, 2002) (finding good cause to prevent disclosure of redacted, non-relevant

6

information in produced documents). Plaintiffs’ Motion merely alludes to a single document

7

without explaining why they believe the miniscule redaction (which is no longer than one or two

8

words in a multi-page document) contains information relevant to the issues in this case or

9

reasonably calculated to lead to discovery of admissible evidence. (Mot. at 9.) On this basis

10

alone, the Motion should be denied. Abbott, 2009 WL 511866, at *2.5

11

Second, Plaintiffs argue that “[p]ermitting redactions of portions of documents deemed

12

‘irrelevant’ by the producing party opens a Pandora’s box of problems” because it would “open a

13

fertile new field for discovery battles.” (Mot. at 9-10 (quoting Orion Power Midwest, L.P., 2008

14

WL 4462301, at *2).) But limited redactions of irrelevant information in discovery are neither

15

unusual nor uncommon.

16

information like phone numbers and social security numbers (Trigg Decl. ¶ 9), a position wholly

17

at odds with their new-found insistence that a party may never “scrub responsive documents of

18

non-responsive information.”

19

4462301, at *2).) Moreover, the Orion court’s dire prediction has not come to pass. Not only

20

have a number of courts expressly permitted redactions of non-relevant information, but such

21

decisions do not appear to have resulted in a flood of wasteful or inefficient litigation. The

22

“fertile new field for discovery battles” has turned out to be anything but.

Plaintiffs themselves agreed that Facebook could redact personal

(Mot. at 10 (quoting Orion Power Midwest, L.P., 2008 WL

23

Lastly, as with the bulk of this Motion, Plaintiffs’ demands here are premature. Instead of

24

suggesting a sensible solution, Plaintiffs filed a motion with this Court without even attaching a

25

5

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ATTORNEYS AT LAW
SAN FRANCISCO

Two of Plaintiffs’ own cited cases recognized that redactions could be appropriate in certain
circumstances. Orion Power Midwest, L.P. v. Am. Coal Sales Co., No. 2:05-cv-555, 2008 WL
4462301, at *2 (W.D. Pa. Sept. 30, 2008) (Special Master determined that redaction of social
security numbers was proper); McNabb v. City of Overland Park, No. 12CV-2331 CM/TJJ, 2014
WL 1152958, at *6 (D. Kan. Mar. 21, 2014) (allowing redaction of certain third-party personal
information).
13.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

single document to show the (very narrow) redactions at issue or suggesting that any relevant

2

information is to be gained from this exercise.

3

E.

4

Plaintiffs’ Request for Facebook to Re-Assign its Confidentiality Designations
Should Be Denied.
1.

5

Plaintiffs Have Waived Their Challenges to Facebook’s Designations.

Plaintiffs have waived their right to challenge Facebook’s confidentiality designations by
6
failing to follow the mandatory procedures set forth in the Protective Order, which provides that a
7
party challenging a confidentiality designation must:
8

12

[F]ile and serve a motion challenging the confidentiality designation under Civil
Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62,
if applicable) within 20 business days of the initial notice of challenge or within 10
business days of the parties agreeing that the meet and confer process will not
resolve their dispute, whichever is earlier. . . . Failure by the Challenging Party to
make such a motion including the required declaration within 20 business days (or
10 business days, if applicable) shall automatically waive any challenge to the
confidentiality designation for each challenged designation.

13

(Dkt. No. 75 at 9 (emphasis added).) Plaintiffs initially provided notice of their challenge to

14

Facebook’s confidentiality designations on January 14, 2016 and Facebook indicated that it

15

would stand by its confidentiality designations in a meet-and-confer call on February 3, 2016,

16

memorialized in a letter sent February 16, 2016. (Wong Decl., Ex. F.) Plaintiffs did not file their

17

Motion until March 16, 2016 (Dkt. No. 110), well after the 20-day requirement in the Order

18

(which would have been February 11, 2016), or the 10-day requirement (which would have been

19

March 1, 2016). As such, they have waived their challenge as a matter of law. See Compsource

20

Oklahoma v. BNY Mellon, N.A., No. CIV-08-469-KEW, 2011 WL 2472547, at *2 (E.D. Okla.

21

June 21, 2011) (finding waiver regarding confidentiality designations where party failed to

22

comply with protective order deadline and noting “[t]his Court adopted the terms of the

23

Agreement and will enforce them as written”).6 Plaintiffs offer no justification for their failure

9
10
11

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

6

In addition to being a court order, the protective order is also a contract. Courts strictly enforce
conditions precedent, particularly where they require parties to attempt dispute resolution without
resort to the courts. See, e.g., Lange v. Schilling, 163 Cal. App. 4th 1412, 1418 (2008) (upholding
denial of attorneys’ fees to prevailing party for failure to comply with a condition precedent
despite fact that defendant did not raise the failure to seek mediation until after the trial because
the provision “means what it says”); Platt Pac., Inc. v. Andelson, 6 Cal. 4th 307, 311 (1993)
(where agreement permitted either party to file a demand for arbitration but gave a specific, firm
date by which to do so, plaintiffs’ failure to timely file demand resulted in the loss of the right to
arbitrate). That Facebook continued to seek a global resolution of the issues after Plaintiffs’
14.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

and notably do not certify anywhere in their papers that they satisfied this court-ordered

2

requirement.7

3

Likewise, Plaintiffs failed to follow the provision in the Protective Order that requires the

4

challenging party to “initiate the dispute resolution process by providing written notice of each

5

designation it is challenging and describing the basis for each challenge.” (Dkt. No. 75 at 9

6

(emphasis added).) If the challenging party has not specifically identified and explained its

7

challenges, the party cannot “proceed to the next stage” and seek judicial intervention. (Id.)

8

Numerous courts have held the challenging party to this requirement. See Fiechtner v. Am.

9

Family Mut. Ins. Co., No. 09-CV-02681-REB-MEH, 2010 WL 5072006, at *3 (D. Colo. Dec. 7,

10

2010) (rejecting objections to confidentiality designations where plaintiffs had not strictly

11

adhered to the protective order’s procedures).

12

Here, Facebook invited Plaintiffs on multiple occasions to identify any documents they

13

felt were improperly designated. (Trigg Decl. ¶¶ 10-11.)

14

intended to make a good-faith review of the documents and evaluate whether Plaintiffs were

15

correct that over-designation for confidentiality had occurred.

16

proposal, claiming that it would essentially give Facebook its “hot documents,” even though they

17

also claimed they would file examples with their motion to compel—which they did not. (Trigg

18

Decl., Ex. 1.) Thus, Plaintiffs’ refusal to follow the procedures mandated by the Protective Order

19

prevented the parties from resolving this issue without Court intervention. The Court should deny

20

Plaintiffs’ Motion and hold Plaintiffs to the procedures set forth in the Protective Order.

21

Fiechtner, 2010 WL 5072006, at *3.

Through this process, Facebook

(Id.) Plaintiffs rejected this

22

While Plaintiffs admit that they have failed to follow the Protective Order’s mechanism

23

for challenging designations, they claim that they are excused from such obligations by

24

Facebook’s alleged bad faith in the initial designation of documents.

As detailed below,

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

deadline passed–in an effort to avoid burdening the Court–does not change the unequivocal
language of the Order or Plaintiffs’ obligations thereunder.
7
Had they wanted additional time to file, Plaintiffs could have sought relief from the Court under
Civil Local Rule 6-2, which permits parties to seek changes to dates set by Court order (as here).
Plaintiffs did not avail themselves of that option.
15.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

Facebook has not violated the Protective Order. Moreover, Plaintiffs rely on two out-of-circuit

2

cases that offer no explanation as to why a party’s alleged bad faith should render a court’s

3

unambiguous order establishing a single mechanism for challenging designations irrelevant or

4

unenforceable. Healthtrio, LLC v. Aetna, Inc., No. 12-cv-03229-REB-MJW, 2014 WL 6886923

5

(D. Colo. Dec. 5, 2014); Procaps S.A. v. Pantheon Inc., No. 12-24356-CIV-GOODMAN, 2015

6

WL 4430955 (S.D. Fla. July 20, 2015). Nor is Facebook’s decision not to seek to seal a few

7

sentences from highly confidential documents that Plaintiffs placed in the record evidence of bad

8

faith.8 In the end, Plaintiffs are asking the Court to require Facebook to re-review nearly 13,000

9

documents without presenting Facebook or the Court with a single document it alleges has been

10

incorrectly designated, as required by the Protective Order.

11

2.

Facebook Designated the Documents in Good Faith.

12

Even if Plaintiffs had complied with the Protective Order, they still should not prevail here

13

because Facebook designated its productions in good faith. Facebook undertook a thorough

14

review of the documents before production to determine whether each document, by itself, was

15

responsive, privileged, or confidential, among other things. (Trigg Decl. ¶ 3.) Plaintiffs do not

16

dispute this process and instead claim that the high percentage of documents bearing a

17

confidentiality designation is per se evidence of “bad faith” in making the designations. Their

18

arguments are meritless.

19

The relevant inquiry here is not whether some arbitrary percentage of documents has been

20

marked confidential, but rather, whether the individual circumstances of the discovery merit the

21

designations. A number of courts have rejected challenges to confidentiality designations for

22
23
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25
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

8

Plaintiffs conflate the differences between confidentiality and sealing when they claim
Facebook’s alleged bad faith is illustrated by its not removing “inadvertently disclosed material”
from a public filing in this case just weeks ago. (Mot. at 12.) Facebook determined that the
limited information disclosed in Plaintiffs’ filing would not meet the evidentiary threshold
required to merit redaction from public filings, which is a threshold that is different from that
which governs the designations of confidential documents under the Protective Order. In fact, the
Protective Order, agreed to by the parties, makes this distinction clear: “The Parties further
acknowledge . . . that this Stipulated Protective Order does not entitle them to file confidential
information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that
must be followed and the standards that will be applied when a party seeks permission from the
court to file material under seal.” (Dkt. No. 75 at 2:9-13.)
16.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD

1

productions where all or nearly all the documents were marked confidential. See, e.g., Bank of

2

Montreal v. Optionable, Inc., No. 09 Civ. 7557 GBD JLC, 2011 WL 6259668, at *1 (S.D.N.Y.

3

Dec. 15, 2011) (refusing to de-designate the entire production of 3.4 million pages which were all

4

marked confidential).

5

because 100% of the few non-public documents they produced are marked confidential. (Trigg

6

Decl. ¶ 4.)

Moreover, Plaintiffs have themselves violated their own per se rule

7

Ultimately, because the majority of the production involves highly technical discussions

8

of bug reports, trace logs, and other highly sensitive documents that would create a substantial

9

risk of competitive harm if disclosed (Naugle Decl. ¶¶ 3-8; Trigg Decl. ¶ 5.), the documents have

10

been properly designated as confidential and highly confidential under the Protective Order.

11

3.

Plaintiffs Are Not Prejudiced By Facebook’s Designations.

12

Plaintiffs’ initial meet-and-confer letter identified only one reason for their challenge to

13

the confidentiality designations: the named Plaintiffs were unable to view documents marked

14

“Highly Confidential” and thus have the “information needed to understand their claims and

15

protect the class.” (Wong Decl. Ex. D.) When Facebook offered to let the named plaintiffs have

16

access to all documents designated “Highly Confidential” (Wong Decl. Ex. F), Plaintiffs quickly

17

abandoned that argument to focus on the alleged “interference” this designation causes to the

18

Plaintiffs’ prosecution of the case. (Mot. at 13-14.) But each of these alleged consequences is

19

either non-existent or of trivial importance:

20



Use in Depositions. Contrary to Plaintiffs’ contention, the Protective Order not

21

only permits use of Highly Confidential documents in depositions where the

22

deponent was the author or custodian (Mot. at 14) but also any “other person who

23

otherwise possessed or knew the information.” (Dkt. No. 75 ¶ 7.3(f).) Plaintiffs

24

do not explain why the prosecution of the case would be hampered by this

25

limitation.

26



Affiliated Attorneys. In the three years of discovery, Plaintiffs have not once

27

asked to show a single document to an affiliated attorney, nor do they explain how

28

this provision interferes with their prosecution of the case.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

17.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD



1

Patent Prosecution Bar. Plaintiffs’ counsel has never suggested that they intend to

2

prosecute patents or patent applications relating to the subject matter of the

3

documents designated Highly Confidential in this case.

4

F.

5

Plaintiffs’ Motion is Premature and Therefore Should Be Denied or Held in
Abeyance.

6

Given the procedural posture of the case, Facebook believes that further discovery at this

7

time is irrelevant, unwarranted, and unduly burdensome. However, in the event that the Court

8

denies Facebook’s Motion for Protective Order temporarily staying discovery pending a decision

9

on the motion to dismiss, Facebook believes that the discovery disputes Plaintiffs present in their

10

Motion can likely be resolved by the parties without Court intervention. The parties have not

11

adequately met and conferred with respect to the categories of documents Plaintiffs’ seek—in

12

fact, Facebook has already offered to produce some of the documents Plaintiffs’ seek if the

13

Motion for Protective Order is denied—and thus Court intervention at this point is both

14

unnecessary and an inefficient use of Court and party resources. The Court has discretion to hold

15

Plaintiffs’ Motion to Compel in abeyance until the parties have determined whether these

16

discovery disputes can be resolved. See Doyle v. Gonzales, No. CV-10-0030-EFS, 2011 U.S.

17

Dist. LEXIS 85115, at *4 (E.D. Wash. Aug. 2, 2011) (holding motion to compel certain discovery

18

requests in abeyance so that the parties could determine whether the requests were necessary).

19

V.

20
21

CONCLUSION
For the foregoing reasons, Facebook respectfully requests that this Court deny Plaintiffs’

Motion to Compel.

22
23
24

Dated: March 30, 2016

COOLEY LLP

25

/s/ Matthew D. Brown
Matthew D. Brown

26

Attorneys for Defendant FACEBOOK, INC.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

18.

DEF. FACEBOOK’S OPP. TO PLAINTIFFS’ MOTION
TO COMPEL, CASE NO. 5:12-MD-02314 EJD