In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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JOINT CASE MANAGEMENT STATEMENT Supplemental Joint Case Management Statement filed by Facebook Inc.. (Brown, Matthew) (Filed on 4/21/2016)
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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.
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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
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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
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Interim Co-Class Counsel
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
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No. 5:12-md-02314-EJD
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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.
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The Hon. Edward J. Davila
None Set
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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Plaintiffs Perrin Davis, Cynthia Quinn, Brian Lentz, and Matthew Vickery (collectively,
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“Plaintiffs”) and Defendant Facebook, Inc. (“Facebook”) (Plaintiffs and Facebook collectively,
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the “Parties”) jointly submit this Supplemental Joint Case Management Statement in advance of
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the April 28, 2016 Case Management Conference, supplementing the prior joint statement dated
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June 22, 2012 (ECF No. 41) (the “2012 CMC Statement”).
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Case Status
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The last case management conference occurred on June 29, 2012. See Tr., ECF No. 48.
The following events have occurred since that date.
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On July 2, 2012, Facebook filed a motion to dismiss the First Amended Complaint (the
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“FAC”) (ECF No. 44). After briefing concluded, the Court held oral arguments on the motion on
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October 5, 2012. See Tr., ECF No. 60.
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The parties held their 26(f) conference on July 13, 2012 and exchanged initial disclosures.
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The parties served document requests (and Facebook also served interrogatories) following the
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October 5, 2012 hearing on the motion to dismiss. The Parties also filed a Joint Statement
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Concerning Case Schedule on July 27, 2012 (ECF No. 50). A more detailed discussion of the
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status of discovery can be found in Section 8 below, and in the Motion to Stay Discovery and
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Motion to Compel Discovery and to Compel Compliance with Protective Order, both discussed in
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Section 4.B. below.
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On October 23, 2015, the Court granted Facebook’s motion to dismiss the FAC with leave
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to amend (ECF No. 87). Plaintiffs filed their Second Amended Complaint (the “SAC”) on
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November 30, 2015. The SAC was filed under seal because it quoted and included copies of
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material obtained in discovery and designated confidential by defendant. A redacted version was
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filed publicly (ECF No. 93). Facebook moved to dismiss, and briefing has concluded.
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The parties have reached an impasse in discovery, and the issues are described in more
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detail in Sections 4.B. and 8 below. The following changes have occurred since the 2012 CMC
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Statement.
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2.
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Facts:
The Plaintiffs have supplemented the SAC with additional facts learned in discovery.
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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Each Party’s view of the facts alleged in the SAC is summarized in detail in the motion to dismiss
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and related briefing, discussed in Section 4.B. below. Portions of the SAC and attached
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documents obtained in discovery have been filed under seal. The sealing motions are outstanding
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and are also discussed in Section 4.B. below.
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3.
Legal Issues:
The SAC adds four new claims not found in the FAC, and drops four claims:
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Claim
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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
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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).
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Pending Motions
The following motions are pending, and all have been fully briefed:
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Motion to Dismiss the SAC (ECF Nos. 101, 140-3, 109).
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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2.
Motion to File SAC Under Seal (ECF Nos. 92, 94, 95, 97, 98).
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3.
Motion to File Response Under Seal (ECF Nos. 104-107).
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4.
Motion For Protective Order Temporarily Staying Discovery (ECF Nos.
108, 111, 112).
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5.
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Motion to Compel Discovery and to Compel Compliance with Protective
Order (ECF Nos. 110, 114-116).
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6.
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Administrative Motion to Streamline Class Counsel Leadership (ECF No.
113). The motion is unopposed.
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C.
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Future Motions
The Parties do not anticipate filing any further motions until one or more of the current
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outstanding motions are resolved.
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5.
Amendment of Pleadings:
If the court grants Defendant’s motion to dismiss on a basis that can be cured by pleading
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additional facts contained in documents in the custody, control or possession of defendant,
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plaintiffs would request further opportunity to amend the complaint to include the additional
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facts.
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7.
Disclosures:
The Parties held a joint Rule 26(f) teleconference on July 13, 2012. Initial disclosures
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were exchanged on July 27, 2012. Plaintiffs contend that Facebook’s initial disclosures are
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incomplete under Rule 26(a) and 26(g), and have provided a copy to the Court in connection with
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the Motion to Compel discussed above in Section 4.B. (ECF No. 115-4). Facebook contends that
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its initial disclosures and subsequent productions satisfy Rule 26(a) and 26(g), and notes that
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Plaintiffs did not contest the adequacy of Facebook’s disclosures until January 2016, more than
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three years after the disclosures.
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8.
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Discovery:
Pursuant to counsel agreement, exchange of discovery material required Court approval of
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the stipulated protective order, which occurred on April 11, 2014 (ECF No. 75). Both sides have
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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
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A more detailed account of discovery to date is outlined in the Motion to Stay and Motion to
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Compel, both listed in Section 4.B. above.
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9.
Class Actions:
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The SAC asserts class claims pursuant to Rules 23(a) and (b)(3) of the Federal Rules of
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Civil Procedure on behalf of a Class of all persons who had active Facebook accounts and used
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Facebook between April 22, 2010 and September 26, 2011. The proposed class period is longer
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than the class period originally proposed in the FAC as a result of information obtained in
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discovery (the proposed class period in the FAC started on May 27, 2010). The SAC also asserts
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a subclass of Facebook users who used Microsoft’s Internet Explorer web browser between April
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22, 2010 and September 17, 2010. Excluded from the Class and the IE Subclass are Facebook,
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and its officers, directors, employees, affiliates, legal representatives, predecessors, successors
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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
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Federal Rule of Civil Procedure 23.
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10.
Related Cases:
1.
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Ung v. Facebook: On March 16, 2012, Facebook filed a Notice of Pending Action
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pursuant to Civil Local Rule 3-13 to inform the Court of a related case, Ung v. Facebook, Inc.,
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No. 112-cv-217244, pending in Santa Clara Superior Court. Facebook moved for a stay of the
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Ung case in favor of the present case, and also filed a demurrer. The court denied in part and
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granted in part the demurrer on July 2, 2012, and plaintiffs attached a copy of the order to the
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SAC as exhibit HH. The Superior Court also granted defendant’s motion for a stay in favor of
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this case, and the next status conference is scheduled for October 13, 2016. 1
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12.
Settlement and ADR:
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The Parties have not discussed any ADR process or settlement since the 26(f) conference
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in 2012. The parties do not believe that any ADR process is appropriate at this juncture but the
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Parties will confer with one another if that view changes.
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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.
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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17.
Scheduling:
There are no pending issues related to the case schedule. After filing the 2012 CMC
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Statement, the Parties filed a Joint Statement Concerning Case Schedule on July 27, 2012, see
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ECF No. 50, but the dates in this Joint Statement would only be triggered upon resolution of the
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motion to dismiss and filing of an Answer. The Court has not issued any ruling with respect to
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the schedule proposed in the Joint Statement. The Parties propose that within 30 days of the
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Court’s ruling on the pending motion to dismiss, the Parties will, if necessary, meet and confer
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concerning a schedule for any remaining aspect of the case and submit a supplemental joint
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statement concerning the case schedule for the Court’s consideration, with a further Case
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Management Conference to be held thereafter.
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18.
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Trial:
As discussed in Section 17 above, trial has not yet been scheduled for this action.
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[signatures on next page]
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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DATED: April 21, 2016
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KAPLAN FOX & KILSHEIMER LLP
Laurence D. King
David A. Straite
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By:
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Interim Co-Class Counsel
/s/ David A. Straite
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DATED: April 21, 2016
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By:
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/s/ Stephen G. Grygiel
Interim Co-Class Counsel
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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
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By:
/s/ Matthew D. Brown
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Attorneys for Defendant FACEBOOK,
INC.
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6.
SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
ECF ATTESTATION
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I, Matthew D. Brown, am the ECF User whose ID and password are being used to file the
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following: SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT. In
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compliance with General Order 45, X.B., I hereby attest that all signatories have concurred in this
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filing.
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DATED: April 21, 2016
COOLEY LLP
By: /s/ Matthew D. Brown
MATTHEW D. BROWN
Attorneys for Defendant FACEBOOK, INC.
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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