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])
JEFFREY M. GUTKIN (216083)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
ADAM C. TRIGG (261498)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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In re: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD
DECLARATION OF ADAM C. TRIGG IN
SUPPORT OF DEFENDANT FACEBOOK,
INC.’S OPPOSITION TO PLAINTIFFS’
MOTION TO COMPEL

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DATE:
TIME:
COURTROOM:
JUDGE:
TRIAL DATE:

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

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I, Adam C. Trigg, hereby declare as follows:
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I am an attorney licensed to practice law in the state of California and an associate

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of the law firm of Cooley LLP (“Cooley”), counsel of record for defendant Facebook, Inc.

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Except as otherwise noted, I have personal knowledge of the facts below and could and would

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testify competently to them if called as a witness.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

TRIGG DECLARATION I/S/O DEF. FACEBOOK’S
OPPOSITION TO PLFS.’ MOTION TO COMPEL
CASE NO. 5:12-MD-02314 EJD

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Discovery to Date
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Documents were collected from Facebook’s central repositories, public-facing

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facebook.com pages, and three Facebook engineers that that had the most familiarity with the

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facts alleged in the First Amended Consolidated Class Action Complaint (“FAC”).

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3.

Every document in Facebook’s production was reviewed by an attorney to

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determine, among other things, if it was responsive to Plaintiffs’ document requests (subject to

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Facebook’s objections), privileged, confidential, and/or whether redactions were needed.

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4.

To date, Plaintiffs have produced 42 documents, totaling 505 pages.

The

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documents consist of some publicly available documents and other documents that are not

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publicly available. Plaintiffs have marked every non-public document confidential that they

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produced after the Protective Order was entered.

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5.

Facebook produced relevant public documents within its possession to Plaintiffs in

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January 2013. In correspondence in February 2013, Facebook and Plaintiffs agreed that both

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

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stipulated protective order, which was submitted to the Court in August 2013.

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approved the protective order on April 11, 2014. Five days later, Facebook produced nearly

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13,000 documents to Plaintiffs.

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including emails and attachments, internal employee “tasks,” reports and “trace logs” regarding

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the functioning of the Facebook website, and Facebook’s internal “wiki” pages, which are

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internal webpages dealing with the functioning of the Facebook website and editable by Facebook

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employees.

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Redactions for Non-Responsive Highly-Sensitive Business Information

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6.

The Court

The documents consisted of internal Facebook documents,

A very small subset of the produced documents were partially redacted to protect

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

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aware of them. The highly sensitive nature of these documents is described in the Declaration of

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Natalie Naugle, filed herewith. As with the other produced documents, each redacted document

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was reviewed individually by an attorney for relevance. The great majority of the redactions are

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less than a sentence long and none of them contain any material relevant to the issues in the case.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

TRIGG DECLARATION I/S/O DEF. FACEBOOK’S
OPPOSITION TO PLFS.’ MOTION TO COMPEL
CASE NO. 5:12-MD-02314 EJD

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History of the Parties’ Meet-and-Confer
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The parties held meet-and-confer calls on November 3, 2014 and November 19,

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2014. I am informed that during these calls Plaintiffs raised some issues with Facebook’s

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objections to Plaintiffs’ document requests and to Facebook’s production. Plaintiffs suggested

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that Facebook search additional custodians. Facebook asked Plaintiffs to identify any additional

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custodians they believed to be searched. Plaintiffs acknowledged that they had not yet finished

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their review of Facebook’s document production, so the issue was tabled. During these calls,

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Plaintiffs did not raise any issues with respect to the confidentiality designations or redactions in

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Facebook’s production.

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8.

Plaintiffs did not contact Facebook again regarding its objections or production

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until January 14, 2016 in a letter addressed to Facebook’s counsel, Kyle Wong. (See Dkt. No.

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108-5.) Mr. Wong initially responded in an email on January 25, informing Plaintiffs that he had

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been stuck in a snowstorm in New York City, but Facebook was working on a response. On

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February 2, Facebook responded to Plaintiffs’ January 14 letter. (See Dkt. No. 108-6.)

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Over the next month, Facebook and Plaintiffs exchanged several letters and

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participated in multiple conference calls to attempt to resolve their disagreements regarding

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discovery.

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sensitive business information from 140 documents.

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Plaintiffs agreed that Facebook could redact personal information like phone numbers or social

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security numbers from their production, but disagreed with the redaction of any other irrelevant

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information.

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10.

Among the issues discussed was Facebook’s redactions of certain non-relevant
On one of the meet-and-confer calls,

Plaintiffs also raised the issue of Facebook’s confidentiality designations.

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Plaintiffs’ position was that Facebook improperly designated too high a percentage of its

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documents under the Protective Order. The overriding concern Plaintiffs expressed was their

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inability to show the documents to the named Plaintiffs. Facebook indicated that it would stand

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

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explained that each document was reviewed by an attorney to determine the appropriate

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confidentiality designation. Facebook invited Plaintiffs to identify any documents they felt were

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

TRIGG DECLARATION I/S/O DEF. FACEBOOK’S
OPPOSITION TO PLFS.’ MOTION TO COMPEL
CASE NO. 5:12-MD-02314 EJD

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improperly designated so that Facebook could make a good faith review of the documents and

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evaluate whether over-designation had occurred.

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explicitly required under the Protective Order. Plaintiffs rejected this proposal, claiming that it

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would essentially require Plaintiffs to give Facebook their “hot documents.”

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Facebook noted that this mechanism was

On March 7, 2016, on a conference call Plaintiffs indicated that they were

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prepared to file a motion to compel and that they had examples of improperly designated

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documents they would file with the Court in support of that motion. In an email following up on

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the call, I again asked Plaintiffs to provide examples of the documents they claimed to be

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improperly designated, noting that if they intended to file such examples with the court, then they

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should not have an issue with providing them to Facebook first in an effort to resolve the

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disagreement. A true and correct copy of this email correspondence is attached as Exhibit 1.

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Plaintiffs did not respond to the email. Instead, they filed their motion to compel without

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providing the court any examples of documents they believe to be improperly designated.

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12.

Plaintiffs also insisted that Facebook must produce “all documents concerning the

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named Plaintiffs” in response to their Request No. 16. Facebook repeatedly told Plaintiffs that

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this request is vastly overbroad and burdensome as it would cover literally everything the named

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Plaintiffs had ever done on the Facebook website, including posts, Likes, Shares, comments,

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messages sent and received, photos, and videos. This would necessarily include information

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about individuals other than named Plaintiffs. Plaintiffs insisted that all of this information must

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be produced, and refused to discuss how the document request might be narrowed.

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed on March 30, 2016 at Palo Alto, California.
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/s/ Adam C. Trigg
Adam C. Trigg

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

TRIGG DECLARATION I/S/O DEF. FACEBOOK’S
OPPOSITION TO PLFS.’ MOTION TO COMPEL
CASE NO. 5:12-MD-02314 EJD

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ATTESTATION
In accordance with Northern District of California Civil Local Rule 5-1(i)(3), I hereby

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attest that I have obtained concurrence in the filing of this document from each of the other

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signatories.

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/s/ Matthew D. Brown
MATTHEW D. BROWN

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129160139

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

5.

TRIGG DECLARATION I/S/O DEF. FACEBOOK’S
OPPOSITION TO PLFS.’ MOTION TO COMPEL
CASE NO. 5:12-MD-02314 EJD