In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 117

JOINT CASE MANAGEMENT STATEMENT Supplemental Joint Case Management Statement filed by Facebook Inc.. (Brown, Matthew) (Filed on 4/21/2016)

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1 2 3 4 5 6 7 Michael G. Rhodes (116127) Matthew D. Brown (196972) Jeffrey M. Gutkin (216083) Kyle C. Wong (224021) Adam C. Trigg (261498) COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 kwong@cooley.com Attorneys for Defendant FACEBOOK, INC. 8 David A. Straite (admitted pro hac vice) KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Tel.: (212) 687-1980 Fax: (212) 687-7714 dstraite@kaplanfox.com Laurence D. King (206423) Mario M. Choi (243409) KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, 4th Floor San Francisco, CA 94104 Tel.: (415) 772-4700 Fax: (415) 772-4707 lking@kaplanfox.com 9 13 Stephen G. Grygiel (admitted pro hac vice) SILVERMAN THOMPSON SLUTKIN WHITE LLC 201 N. Charles Street, 26TH Floor Baltimore, MD 21201 Tel.: (410) 385-2225 Fax: (410) 547-2432 sgrygiel@mdattorney.com 14 Interim Co-Class Counsel 10 11 12 15 16 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 18 No. 5:12-md-02314-EJD 19 20 21 22 23 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT IN RE: FACEBOOK, INC. INTERNET TRACKING LITIGATION CMC Date: Time: Courtroom: Judge: Trial Date: April 28, 2016 9:00 a.m. 4 The Hon. Edward J. Davila None Set 24 25 26 27 28 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 Plaintiffs Perrin Davis, Cynthia Quinn, Brian Lentz, and Matthew Vickery (collectively, 2 “Plaintiffs”) and Defendant Facebook, Inc. (“Facebook”) (Plaintiffs and Facebook collectively, 3 the “Parties”) jointly submit this Supplemental Joint Case Management Statement in advance of 4 the April 28, 2016 Case Management Conference, supplementing the prior joint statement dated 5 June 22, 2012 (ECF No. 41) (the “2012 CMC Statement”). 6 Case Status 7 8 The last case management conference occurred on June 29, 2012. See Tr., ECF No. 48. The following events have occurred since that date. 9 On July 2, 2012, Facebook filed a motion to dismiss the First Amended Complaint (the 10 “FAC”) (ECF No. 44). After briefing concluded, the Court held oral arguments on the motion on 11 October 5, 2012. See Tr., ECF No. 60. 12 The parties held their 26(f) conference on July 13, 2012 and exchanged initial disclosures. 13 The parties served document requests (and Facebook also served interrogatories) following the 14 October 5, 2012 hearing on the motion to dismiss. The Parties also filed a Joint Statement 15 Concerning Case Schedule on July 27, 2012 (ECF No. 50). A more detailed discussion of the 16 status of discovery can be found in Section 8 below, and in the Motion to Stay Discovery and 17 Motion to Compel Discovery and to Compel Compliance with Protective Order, both discussed in 18 Section 4.B. below. 19 On October 23, 2015, the Court granted Facebook’s motion to dismiss the FAC with leave 20 to amend (ECF No. 87). Plaintiffs filed their Second Amended Complaint (the “SAC”) on 21 November 30, 2015. The SAC was filed under seal because it quoted and included copies of 22 material obtained in discovery and designated confidential by defendant. A redacted version was 23 filed publicly (ECF No. 93). Facebook moved to dismiss, and briefing has concluded. 24 The parties have reached an impasse in discovery, and the issues are described in more 25 detail in Sections 4.B. and 8 below. The following changes have occurred since the 2012 CMC 26 Statement. 27 2. 28 Facts: The Plaintiffs have supplemented the SAC with additional facts learned in discovery. 1. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 Each Party’s view of the facts alleged in the SAC is summarized in detail in the motion to dismiss 2 and related briefing, discussed in Section 4.B. below. Portions of the SAC and attached 3 documents obtained in discovery have been filed under seal. The sealing motions are outstanding 4 and are also discussed in Section 4.B. below. 5 3. Legal Issues: The SAC adds four new claims not found in the FAC, and drops four claims: 6 Claim 7 8 9 10 11 12 13 14 15 16 Violation of the Federal Wiretap Act Violation of the Federal Stored Communications Act Violation of the Federal Computer Fraud and Abuse Act Invasion of Privacy Intrusion upon Seclusion Conversion Trespass to Chattels California Unfair Competition Law (“UCL”) California Penal Code § 502 (computer crime law) California Invasion of Privacy Act (“CIPA”) California Consumer Legal Remedies Act Breach of Contract Breach of Duty of Good Faith and Fair Dealing Civil Fraud California Statutory Larceny 17 18 19 20 21 22 23 24 25 26 27 28 First Amended Complaint Count I Count II Count III Count IV Count V Count VI Count VII Count VIII Count IX Count X Count XI [not asserted] [not asserted] [not asserted] [not asserted] Second Amended Complaint Count I Count II [dropped] Count IV Count V [dropped] Count IX [dropped] Count X Count III [dropped] Count VI Count VII Count VIII Count XI The legal issues associated with these claims are set forth in defendant’s motion to dismiss and related briefing, discussed in Section 4.B. below. 4. Motions: A. Motions Decided after the June 29, 2012 CMC On September 6, 2013, the Parties filed a stipulated proposed protective order governing the exchange of confidential information (ECF No. 68). The Court granted the proposed protective order on April 11, 2014 (ECF No. 75). On October 23, 2015, the Court granted Facebook’s motion to dismiss the FAC with leave to amend (ECF No. 87). B. Pending Motions The following motions are pending, and all have been fully briefed: 1. Motion to Dismiss the SAC (ECF Nos. 101, 140-3, 109). 2. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 2. Motion to File SAC Under Seal (ECF Nos. 92, 94, 95, 97, 98). 2 3. Motion to File Response Under Seal (ECF Nos. 104-107). 3 4. Motion For Protective Order Temporarily Staying Discovery (ECF Nos. 108, 111, 112). 4 5. 5 Motion to Compel Discovery and to Compel Compliance with Protective Order (ECF Nos. 110, 114-116). 6 6. 7 Administrative Motion to Streamline Class Counsel Leadership (ECF No. 113). The motion is unopposed. 8 C. 9 Future Motions The Parties do not anticipate filing any further motions until one or more of the current 10 11 outstanding motions are resolved. 12 5. Amendment of Pleadings: If the court grants Defendant’s motion to dismiss on a basis that can be cured by pleading 13 14 additional facts contained in documents in the custody, control or possession of defendant, 15 plaintiffs would request further opportunity to amend the complaint to include the additional 16 facts. 17 7. Disclosures: The Parties held a joint Rule 26(f) teleconference on July 13, 2012. Initial disclosures 18 19 were exchanged on July 27, 2012. Plaintiffs contend that Facebook’s initial disclosures are 20 incomplete under Rule 26(a) and 26(g), and have provided a copy to the Court in connection with 21 the Motion to Compel discussed above in Section 4.B. (ECF No. 115-4). Facebook contends that 22 its initial disclosures and subsequent productions satisfy Rule 26(a) and 26(g), and notes that 23 Plaintiffs did not contest the adequacy of Facebook’s disclosures until January 2016, more than 24 three years after the disclosures. 25 8. 26 Discovery: Pursuant to counsel agreement, exchange of discovery material required Court approval of 27 the stipulated protective order, which occurred on April 11, 2014 (ECF No. 75). Both sides have 28 since produced documents. Defendant also served interrogatories and plaintiffs have responded. 3. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 A more detailed account of discovery to date is outlined in the Motion to Stay and Motion to 2 Compel, both listed in Section 4.B. above. 3 9. Class Actions: 4 The SAC asserts class claims pursuant to Rules 23(a) and (b)(3) of the Federal Rules of 5 Civil Procedure on behalf of a Class of all persons who had active Facebook accounts and used 6 Facebook between April 22, 2010 and September 26, 2011. The proposed class period is longer 7 than the class period originally proposed in the FAC as a result of information obtained in 8 discovery (the proposed class period in the FAC started on May 27, 2010). The SAC also asserts 9 a subclass of Facebook users who used Microsoft’s Internet Explorer web browser between April 10 22, 2010 and September 17, 2010. Excluded from the Class and the IE Subclass are Facebook, 11 and its officers, directors, employees, affiliates, legal representatives, predecessors, successors 12 and assigns, and any entity in which any of them have a controlling interest. Facebook denies that this action meets the requirements for class certification under 13 14 Federal Rule of Civil Procedure 23. 15 10. Related Cases: 1. 16 Ung v. Facebook: On March 16, 2012, Facebook filed a Notice of Pending Action 17 pursuant to Civil Local Rule 3-13 to inform the Court of a related case, Ung v. Facebook, Inc., 18 No. 112-cv-217244, pending in Santa Clara Superior Court. Facebook moved for a stay of the 19 Ung case in favor of the present case, and also filed a demurrer. The court denied in part and 20 granted in part the demurrer on July 2, 2012, and plaintiffs attached a copy of the order to the 21 SAC as exhibit HH. The Superior Court also granted defendant’s motion for a stay in favor of 22 this case, and the next status conference is scheduled for October 13, 2016. 1 23 12. Settlement and ADR: 24 The Parties have not discussed any ADR process or settlement since the 26(f) conference 25 in 2012. The parties do not believe that any ADR process is appropriate at this juncture but the 26 Parties will confer with one another if that view changes. 27 28 1 Plaintiffs identify Schrems v. Facebook Ireland Ltd. pending in the Austrian Supreme Court as a second related case, and provide their view of the case in paragraphs 146 to 153 of the SAC. 4. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 17. Scheduling: There are no pending issues related to the case schedule. After filing the 2012 CMC 2 3 Statement, the Parties filed a Joint Statement Concerning Case Schedule on July 27, 2012, see 4 ECF No. 50, but the dates in this Joint Statement would only be triggered upon resolution of the 5 motion to dismiss and filing of an Answer. The Court has not issued any ruling with respect to 6 the schedule proposed in the Joint Statement. The Parties propose that within 30 days of the 7 Court’s ruling on the pending motion to dismiss, the Parties will, if necessary, meet and confer 8 concerning a schedule for any remaining aspect of the case and submit a supplemental joint 9 statement concerning the case schedule for the Court’s consideration, with a further Case 10 Management Conference to be held thereafter. 11 18. 12 Trial: As discussed in Section 17 above, trial has not yet been scheduled for this action. 13 14 [signatures on next page] 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 2 DATED: April 21, 2016 3 KAPLAN FOX & KILSHEIMER LLP Laurence D. King David A. Straite 4 By: 5 Interim Co-Class Counsel /s/ David A. Straite 6 7 DATED: April 21, 2016 8 By: 9 12 13 /s/ Stephen G. Grygiel Interim Co-Class Counsel 10 11 SILVERMAN THOMPSON SLUTKIN WHITE LLC Stephen G. Grygiel DATED: April 21, 2016 COOLEY LLP Michael G. Rhodes Matthew D. Brown Jeffrey M. Gutkin Kyle C. Wong Adam C. Trigg 14 By: /s/ Matthew D. Brown 15 16 Attorneys for Defendant FACEBOOK, INC. 17 18 19 20 21 22 23 24 25 26 27 28 6. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC ECF ATTESTATION 1 I, Matthew D. Brown, am the ECF User whose ID and password are being used to file the 2 following: SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT. In 3 compliance with General Order 45, X.B., I hereby attest that all signatories have concurred in this 4 filing. 5 6 7 DATED: April 21, 2016 COOLEY LLP By: /s/ Matthew D. Brown MATTHEW D. BROWN Attorneys for Defendant FACEBOOK, INC. 8 9 10 11 130573429 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC

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