In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 116

OBJECTIONS to re #115 Reply to Opposition/Response, Defendant Facebook, Inc.s Objection, Pursuant to Civil Local Rule 7-3(d)(1), to Evidence Submitted by Plaintiffs in Their Motion to Compel Reply Brief by Facebook Inc.. (Brown, Matthew) (Filed on 4/13/2016)

1
2
3
4
5
6
7

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]

8
9

Attorneys for Defendant
FACEBOOK, INC.

10
UNITED STATES DISTRICT COURT
11
NORTHERN DISTRICT OF CALIFORNIA
12
SAN JOSE DIVISION
13
14
In re: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD

15
16
17

DEFENDANT FACEBOOK, INC.’S
OBJECTION, PURSUANT TO CIVIL LOCAL
RULE 7-3(D)(1), TO EVIDENCE
SUBMITTED BY PLAINTIFFS IN THEIR
MOTION TO COMPEL REPLY BRIEF

18
19
20

Date:
Time:
Courtroom:
Judge:
Trial Date:

April 28, 2016
9:00 a.m.
4
Hon. Edward J. Davila
None Set

21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DEF. FACEBOOK’S OBJECTION TO NEW EVIDENCE
IN PLAINTIFFS’ MOTION TO COMPEL REPLY BRIEF,
CASE NO. 5:12-MD-02314 EJD

1

I.

INTRODUCTION

2

Pursuant to Civil Local Rule 7-3(d)(1), Defendant Facebook, Inc. (“Facebook”) objects to

3

certain new evidence submitted by Plaintiffs for the first time with their Reply Brief in support of

4

their Motion to Compel. (Doc. No. 115 (“Reply”)). Among other evidence, Plaintiffs submitted

5

two articles authored by online publications that are inadmissible because they contain double

6

hearsay and are irrelevant to Plaintiffs’ Motion to Compel. (Supplemental Declaration of David

7

A. Straite in support of Plaintiffs’ Motion to Compel (“Straite Decl.”) Ex. 4; id. Ex. 6.) Facebook

8

respectfully requests that these exhibits be struck and any quotes or references to them in the

9

Reply be disregarded.

10

II.

RELEVANT LEGAL STANDARDS

11

Hearsay evidence is not admissible unless an exception to the hearsay rule applies. Fed.

12

R. Evid. 802 (“Hearsay is not admissible unless any of the following provides otherwise: a federal

13

statute; these rules; or other rules prescribed by the Supreme Court.”). Courts routinely grant

14

motions to strike evidence that fails to comply with evidentiary rules prohibiting hearsay. See,

15

e.g., Doe v. Texaco, Inc., No. C06-02820 WHA, 2006 WL 2850035, at *2 (N.D. Cal. Oct. 5,

16

2006) (striking newspaper articles and related portions of declarations as constituting

17

inadmissible hearsay evidence); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., No. C-

18

95-20091 RMW, 1997 U.S. Dist. LEXIS 23572, at *27 (N.D. Cal. Jan. 3, 1997) (striking portions

19

of declaration submitted in support of motion for expansion of preliminary injunction as

20

inadmissible hearsay). Where a newspaper article quotes statements made by other individuals

21

and those portions of the article are offered for the truth of the matter asserted, they constitute

22

double hearsay and are only admissible if each hearsay statement falls within an exception. See

23

Green v. Baca, 226 F.R.D. 624, 638 (C.D. Cal. 2005) (excluding newspapers articles from

24

evidence because they constituted double hearsay that did not fall under any exception to the

25

hearsay rule).

26

Irrelevant evidence also is inadmissible. Fed. R. Evid. 402. Where a court determines

27

that evidence does not have “any tendency to make a fact more or less probable than it would be

28

without the evidence,” Fed. R. Evid. 401, a motion to strike such evidence is properly granted.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

DEF. FACEBOOK’S OBJECTION TO NEW EVIDENCE
IN PLAINTIFFS’ MOTION TO COMPEL REPLY BRIEF,
CASE NO. 5:12-MD-02314 EJD

1

See, e.g., Luna v. Household Fin. Corp. III, 236 F. Supp. 2d 1166, 1170 n.1 (W.D. Wash. 2002)

2

(striking report submitted in connection with motion to compel as irrelevant). Such evidentiary

3

objections to reply briefs are appropriately made by objecting under Civil Local Rule 7-3(d)(1).

4

See Tech. & Intellectual Prop. Strategies Grp. PC v. Insperity, Inc., No. 12-CV-03163-LHK,

5

2012 U.S. Dist. LEXIS 170714, at *43-44 n.6 (N.D. Cal. Nov. 29, 2012) (granting party’s

6

objection under Civil Local Rule 7-3(d)(1) and striking evidence submitted in connection with a

7

reply brief where the evidence was not relevant to plaintiffs’ motion and thus violated Rule 402).

8

III.

OBJECTIONS

9

Straite Decl. Exhibit 4. Exhibit 4 is an article entitled “How one law student is making

10

Facebook get serious about privacy” from the online publication ArsTechnica.com. Plaintiffs cite

11

this article in support of their statement that “Facebook produced similar documents (more than

12

1,000 pages of them) to Max Schrems . . . .” (Reply at 7.) Exhibit 4 suggests that Facebook

13

provided Mr. Schrems, an individual who filed complaints against Facebook with the Irish Office

14

of the Data Protection Commissioner, a CD containing more than “1,000 pages of raw private

15

data.” (Straite Decl. Ex. 4 at 6.) The author of Exhibit 4 does not explicitly state where he got

16

this information, but implies that it came from Mr. Schrems. Plaintiffs offer Exhibit 4 to prove

17

the truth of the matter asserted, which makes their reliance on this article and Mr. Schrem’s

18

supposed representation of Facebook’s production of 1,000 pages of documents double hearsay.

19

Fed. R. Evid. 801. See Green, 226 F.R.D. at 638 (“[T]o the extent the articles quote statements

20

by other individuals, and those statements are offered for the truth of the matter asserted, they

21

constitute double hearsay.”). Thus, Plaintiffs’ evidence is inadmissible and should be struck or

22

otherwise disregarded. Doe, 2006 WL 2850035, at *2.

23

Exhibit 4 should also be struck for the independent reason that it is not relevant to

24

Plaintiffs’ Motion to Compel.

25

production of all information that Facebook possesses about the named Plaintiffs is not

26

burdensome. But Exhibit 4 says nothing about what actual information was received by Mr.

27

Schrems, including whether the alleged production to Mr. Schrems encompassed the type of

Plaintiffs offer Exhibit 4 to support their contention that

28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

DEF. FACEBOOK’S OBJECTION TO NEW EVIDENCE
IN PLAINTIFFS’ MOTION TO COMPEL REPLY
BRIEF, CASE NO. 5:12-MD-02314 EJD

1

information requested by Plaintiffs here.1 All that can be inferred from Exhibit 4 is that Facebook

2

is capable of making a 1,000 page production in response to a different Facebook user, with

3

different complaints about Facebook, involved in a different proceeding in a different country—

4

none of which aids the Court here in resolving the issues raised by the Motion to Compel,

5

including how burdensome it is to produce the specific information requested here or whether the

6

cost of the production Plaintiffs seek is outweighed by the likely benefit to Plaintiffs.

7

Straite Decl. Exhibit 6. Exhibit 6 is an article entitled “Facebook Can Track Web

8

Browsing Without Cookies” from an online publication called “death + taxes.” Plaintiffs offer no

9

URL or any other indication of where they found this article. Plaintiffs cite Exhibit 6 in support

10

of their contention that their Request For Production number 24, seeking all information about a

11

2011 Facebook patent, is relevant to their claims. (Reply at 7-8.) Exhibit 6 contains statements

12

made by third parties. Plaintiffs directly quote from Exhibit 6 in their Reply and offer the exhibit

13

as support for their assertion that Facebook associates data from cross-domain tracking. Because

14

Plaintiffs are offering the third-party statements contained in Exhibit 6 to prove the truth of the

15

matter asserted, it is double hearsay, and thus inadmissible. See Doe, 2006 WL 2850035, at *2.

16

Exhibit 6 should also be struck for the independent reason that it is not relevant to

17

Plaintiffs’ Motion to Compel. Plaintiffs use Exhibit 6 to support their argument that Facebook’s

18

2011 patent, which discusses tracking pixels, is relevant to their claims. Plaintiffs claim that the

19

Electronic Frontier Foundation “explicitly linked tracking pixels and tracking cookies” and noted

20

that “tracking pixels might be used to associate the same data at issue in this case” during an

21

October 2011 interview.

22

characterization of it. The article contains not a single reference to tracking pixels, nor does it

23

mention Facebook’s 2011 patent. Thus, Exhibit 6 has no bearing on whether Facebook’s patent is

24

relevant to Plaintiffs’ claims or defenses. Tech. & Intellectual Prop. Strategies Grp. PC, 2012

(Reply at 7.)

However, Exhibit 6 does not support Plaintiffs’

25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1

While Plaintiffs relate Exhibit 4 to allegations in their Second Amended Complaint describing
Mr. Schrems’ involvement in a case in Austria (Reply at 7 (citing SAC ¶¶ 146-53)), Exhibit 4
was published nearly two years before that case was filed and has no apparent relevance to the
cited paragraphs of the Second Amended Complaint.
3.

DEF. FACEBOOK’S OBJECTION TO NEW EVIDENCE
IN PLAINTIFFS’ MOTION TO COMPEL REPLY
BRIEF, CASE NO. 5:12-MD-02314 EJD

1

U.S. Dist. LEXIS 170714, at *43-44 n.6.

2

IV.

CONCLUSION

3

For the foregoing reasons, Facebook respectfully requests that this Court strike the

4

documents attached as Exhibits 4 and 6 to the Supplemental Declaration of David A. Straite

5

submitted in conjunction with Plaintiffs’ Reply in Further Support of Motion to Compel and

6

disregard any quotes or references to them contained in the Reply.

7
8
9

Dated: April 13, 2016

COOLEY LLP

10

/s/ Matthew D. Brown
Matthew D. Brown

11

Attorneys for Defendant FACEBOOK, INC.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

DEF. FACEBOOK’S OBJECTION TO NEW EVIDENCE
IN PLAINTIFFS’ MOTION TO COMPEL REPLY
BRIEF, CASE NO. 5:12-MD-02314 EJD