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)
Exhibit 1
Trigg, Adam
From:
Sent:
To:
Cc:
Subject:
Trigg, Adam
Monday, March 07, 2016 4:37 PM
'David Straite'; Stephen G. Grygiel; Wong, Kyle
Laurence King; Wilfred Gomes; Brown, Matthew D.
RE: In re: Facebook Internet Tracking Litigation
David,
We have some clarifications to your summary of our call.
Regarding depositions and additional document custodians, we reiterated that we do not oppose the three depositions
or the production of documents from additional relevant custodians if the court rejects our motion to stay discovery or
our motion to dismiss, so we attempted to negotiate on the timing of the depositions and identity and timing of
production from additional custodians in that event. Because you do not agree that discovery should be stayed, you
were unwilling to discuss the terms of such further discovery.
As to documents related to the named Plaintiffs, we reiterated that your insistence on every single document in
Facebook’s possession related to the named Plaintiffs is unreasonable because it would include potentially large
amounts of information that are wholly irrelevant to the issues in the litigation, such as photos uploaded, messages sent
and received, and other actions on Facebook, in addition to information about other Facebook users who are not named
plaintiffs.
Regarding the issue of the confidentiality designations, as we have said, attorneys reviewed each document that was
produced for relevance and confidentiality. You initially indicated that the main concern with our designations was your
inability to share them with the named Plaintiffs. While we question the need to share these documents with the
named Plaintiffs in what is clearly a lawyer‐driven case, we offered, as provided for in the Protective Order, to provide
written permission for those documents to be shared with the named Plaintiffs. You have refused this offer. Also, we
have repeatedly asked you to provide us examples of documents that you think have been misdesignated, so that we
may review them and respond to your concerns, but you have refused. This does not “shift the burden” as you claim,
but rather is the procedure set out in the Protective Order. You claimed on the call that you have such examples and
plan to use them in your motion to compel. This undermines your very claim that you could not provide us examples
because it would amount to showing us your “hot docs binder.” We again ask that you provide us the examples so that
we may constructively address your concern without burdening the court.
Regards,
Adam
Adam C. Trigg
Cooley LLP
(650) 843-5324
From: David Straite [mailto:dstraite@kaplanfox.com]
Sent: Monday, March 07, 2016 2:21 PM
To: Trigg, Adam; Stephen G. Grygiel; Wong, Kyle
Cc: Laurence King; Wilfred Gomes; Brown, Matthew D.
Subject: RE: In re: Facebook Internet Tracking Litigation
Kyle,
Adam,
1
This email will summarize our meet and confer teleconference today.
1. Depositions: we repeated our request of Jan. 14th to schedule depositions of the 3 witnesses whose documents
you have already produced. On today's call, you continued to refuse to schedule them, but did not contest the
relevancy of these three witnesses. You proposed a plan whereby depositions would take place within 30 days after the
court rules on your motion to stay discovery, on condition that we not seek any depositions prior (i.e., a discovery
stay). We rejected the proposal on the call, but can re‐visit this issue after we file our motion to compel document
discovery.
2. Custodians: you refused our request to search the additional 26 custodians identified in my letter of January
14th. You offered to prioritize the search of up to 5 additional custodians ‐‐ but you conditioned the proposal on no
further custodians until the court rules on your motion to stay, and also conditioned it preserving the right to decline to
search one or more of them on relevancy grounds. We rejected the proposal.
3. Facebook documents related to the named plaintiffs: you represented that your client is reconstructing
databases to enable a search for documents related to plaintiffs. However, we understand that your efforts encompass
only documents related to plaintiffs' "internet browsing history" and we therefore must reject the proposal. This is a
class action, and it is necessary and appropriate for us to seek any and all documents related to the named plaintiffs in
your client's custody, control or possession.
4. Confidentiality order: we repeated our view that designating 99.99% of all documents as confidential violates
the court's protective order. On earlier calls, we asked if you would re‐review and apply the appropriate designations,
and you rejected this request. You proposed to shift the burden to us to challenge your designations on a document‐by‐
document basis for the entire production, which we rejected.
5. Documents Produced by Plaintiffs: we discussed two categories of plaintiff documents:
a. You requested documents related to CFAA damages (RFP 45 and 46 served on Plaintiff Davis). We
objected to the request in our responses and objections. On today's call you offered to table further discussions on
condition that we preserve the documents. We agreed.
b. You requested documents related to prior unrelated litigation involving a named plaintiff (RFP 43). We
objected in our responses and objections. On today's call we repeated our offer that we identify prior litigation by case
number and table further discussion until you have a chance to review the docket to see if further documents would be
requested. You agreed to discuss with your client and get back to us.
c. Finally, you represented that you are unaware of any other outstanding discovery owed by plaintiffs
but you agreed to contact us if any issue has slipped through the cracks.
David A. Straite
Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, NY 10022
Tel. +1.212.687.1980
Fax +1.212.687.7714
From: Trigg, Adam [mailto:atrigg@cooley.com]
Sent: Monday, March 07, 2016 1:28 PM
To: Stephen G. Grygiel ; David Straite ; Wong, Kyle
Cc: Laurence King ; Wilfred Gomes ; Brown, Matthew D.
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Subject: RE: In re: Facebook Internet Tracking Litigation
Kyle and I are available at 1pm PST/ 4pm EST. Does that work for you, David? We can use this dial‐in:
Dial In: 1‐877‐211‐3621
Guest Passcode: 323 290 5804
Adam C. Trigg
Cooley LLP
(650) 843-5324
From: Stephen G. Grygiel [mailto:sgrygiel@mdattorney.com]
Sent: Monday, March 07, 2016 6:44 AM
To: David Straite; Wong, Kyle
Cc: Laurence King; Wilfred Gomes; Brown, Matthew D.; Trigg, Adam
Subject: RE: In re: Facebook Internet Tracking Litigation
I am in pre trial exhibit marking session 10-12 then with witnesses 3-6 EST and have a noon call EST. If you
need to go without me, please do.
Stephen G. Grygiel
Partner
Silverman Thompson Slutkin White
26th Floor
201 N. Charles Street
Baltimore, MD 21201
443-909-7516 direct
410-385-2225 main
407-505-9463 cell
410-547-2432 fax
sgrygiel@mdattorney.com
www.mdattorney.com
From: David Straite [mailto:dstraite@kaplanfox.com]
Sent: Monday, March 07, 2016 9:11 AM
To: Wong, Kyle
Cc: Stephen G. Grygiel ; Laurence King ; Wilfred Gomes
; Brown, Matthew D. ; Trigg, Adam
Subject: RE: In re: Facebook Internet Tracking Litigation
Kyle, we can speak today on the issues you discuss below. We'd also like to address any and all outstanding discovery
requested from plaintiffs. We understand that there is only one outstanding issue (prior litigation of Mr. Vickery),
including our compromise proposal on that topic. Please let us know your availability today.
David A. Straite
Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, NY 10022
Tel. +1.212.687.1980
Fax +1.212.687.7714
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From: Wong, Kyle [mailto:kwong@cooley.com]
Sent: Friday, March 04, 2016 5:01 PM
To: David Straite
Cc: Stephen G. Grygiel ; Laurence King ; Wilfred Gomes
; Brown, Matthew D. ; Trigg, Adam
Subject: RE: In re: Facebook Internet Tracking Litigation
David,
In response to your items:
1. We are not entirely sure what you mean by “a number of compromises related to tangential discovery issues.” To
be clear, regardless of any agreement between the parties or even if Plaintiffs file a motion to compel, Facebook will
undertake the following as discussed during the meet and confer process: (1) we will produce additional, relevant Help
Center pages published during the Relevant Period that we are able to locate, focusing first on any identified in the
complaint, (2) if you identify the Bates numbers of emails that link to Google docs, we will make a good‐faith search for
those documents and produce any we locate that are relevant and not privileged, and (3) we will make reasonable
efforts to access data from the relevant time period and to ascertain whether it can be queried to locate data regarding
the named Plaintiffs’ Internet browsing, to the extent such data exists.
Regarding your intended motion to compel, as we have said previously, we do not oppose depositions of the three
custodians whose documents we have produced or the reasonable and proportional production of relevant documents
from a reasonable number of additional custodians if the Court allows any of Plaintiffs’ claims to proceed or if the Court
denies our motion to stay discovery. As such, we should meet and confer about the timing of the three current
custodians’ depositions tied to the Court’s ruling in Plaintiffs’ favor on either of Facebook’s motions as well as the initial
set of custodians whose documents we will search and produce in the event of such a ruling. We are available Monday
for a meet and confer on these issues.
2. We do not withdraw any confidentiality designations for these documents. The January 14 letter, however, has
now been filed on the court docket, and may be treated accordingly under the Protective Order.
3. We will take no position on your proposed changes.
Kind regards,
Kyle
From: Wong, Kyle
Sent: Thursday, March 03, 2016 1:25 PM
To: 'David Straite'
Cc: Stephen G. Grygiel; Laurence King; Wilfred Gomes; Brown, Matthew D.; Trigg, Adam
Subject: RE: In re: Facebook Internet Tracking Litigation
David,
We are in receipt of your email and should have a response to the issues and questions it raises shortly. Thank you.
Kind regards,
Kyle
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From: David Straite [mailto:dstraite@kaplanfox.com]
Sent: Thursday, March 03, 2016 5:40 AM
To: Wong, Kyle
Cc: Stephen G. Grygiel; Laurence King; Wilfred Gomes; Brown, Matthew D.; Trigg, Adam
Subject: In re: Facebook Internet Tracking Litigation
Kyle,
This email will address three items.
1. We saw your motion to stay discovery dated March 2, 2016, filed last night. In your email the previous day
dated March 1, 2016, you proposed a number of compromises related to tangential discovery issues. We understand
your motion to mean that the offers have been withdrawn, but please clarify so that we may accurately present the
facts to the Court in our motion to compel.
2. Attached to your declaration last night is exhibit D, my letter of January 14, 2016 requesting a discovery meet‐
and‐confer. In several places this letter quotes or refers to discovery material designated "highly confidential," including
for example the fact that Facebook met with P&G to discuss Facebook's plugins and cookie practices. There are also
several quotes from Facebook internal emails on page 2. Given that you have now disclosed this information publicly,
we interpret your filing last night to be a withdrawal of certain confidentiality designations, but it would be helpful to
know precisely which documents (or portions of documents) you have de‐designated, by bates number.
3. Given the current stage of litigation, we will be proposing to the Court to streamline class counsel
structure. Most importantly, we will ask the court to eliminate the role of liaison counsel and have Kaplan Fox's San
Francisco office handle filings going forward. The Kiesel firm would move to the steering committee. We have also
asked Jay Barnes to join the steering committee. Mr. Barnes argued Google Cookie Placement at the Third Circuit. The
Mandell firm has agreed to withdraw to make room for Mr. Barnes. Please let us know if Facebook consents, opposes or
takes not position on these proposed changes.
David A. Straite
Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, NY 10022
Tel. +1.212.687.1980
Fax +1.212.687.7714
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