In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 141

Letter from David A. Straite requesting a Case Management Conference to address the parties' discovery impasse. (Straite, David) (Filed on 4/11/2017)

I . KAPLAN Fox

Kaplan Fox & Kilsheimer LLP
850 Third Avenue
New York, NY 10022
phone [phone]
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April 11, 2017

VIA ECF and OVERNIGHT DELIVERY

District Judge Edward J. Davila
United States District Court
for the Northern District of California
San Jose Courthouse
280 South 1st Street
San Jose, CA 95113
Re:

In re Facebook, Inc. Internet Tracking Litig., No. 5:12-md-02314-EJD-NC

Dear Judge Davila,
On behalf ofthe plaintiffs, we write to request a Case Management Conference to address
the parties' discovery impasse. Alternatively, we ask that the Court refer the outstanding
discovery motions to Magistrate Judge Nathanael Cousins. Plaintiffs' counsel contacted counsel
for defendant via email on April 7, 2017 to ask whether they would support or oppose our
request, but never received a response.
The Court has never stayed discovery. At the June 29, 2012 case management conference
at the beginning of this case, Your Honor noted that "if there is a request to stay discovery
pending whatever, I would respectfully decline that invitation, and I think discovery should go
forward as in any other case ." Tr. at 8:3-7 (ECF No. 48). Despite the Court's clear statement,
defendant Facebook, Inc. has unilaterally granted itself a discovery stay.
Defendant has only produced documents from three employees. Simply based on a
review of the documents produced, some of which were used to support additional allegations
in the Second Amended Complaint dated Nov. 30, 2015 (ECF No. 93), it is clear that more than
two dozen senior employees authored or received discoverable documents. The records ofthese
custodians should be searched and the responsive documents produced .
Defendant also refuses to produce documents related to entire categories of requested
documents - including any documents related to the named plaintiffs, improperly impeding
plaintiffs' ability to move for class certification. Defendant also inappropriately designated more
than 99% of the current production "Highly Confidential Attorneys-Eyes-Only," making their use
at deposition nearly impossible as a practical matter. For these reasons, plaintiffs moved to

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I . KAPLAN Fox

Han. Edward J. Davila
Aprilll, 2017
Page 2

compel discovery last year on March 16, 2016 (ECF No. 110). That motion remains outstanding,
and discovery has not progressed since then . See also Local Rule 7-13 Notice dated October 17,
2016 (ECF No. 138).
Plaintiffs are unaware of any case, statute or rule supporting Facebook's unilateral grant
to itself of a full discovery stay. That self-awarded discovery stay is particularly unjustified in this
case . As the Court is aware, a parallel state-court action is proceeding in Santa Clara County on
behalf of an overlapping proposed California class. There, the Superior Court has already denied
Facebook's demurrer as to the invasion of privacy claim- a claim also asserted in this case. See
Ung v. Facebook, Inc., Case No. 1-12-CV-217244, Order re: Demurrer dated July 2, 2012 (Cal.
Super. Ct., Santa Clara County), provided to the Court as Ex. HH to the Second Amended
Complaint dated Nov. 30, 2015 (ECF No. 93-34). However, we understand that the Superior Court
has stayed discovery in Ung in deference to the MDL. We also understand that plaintiffs in Ung
are evaluating whether to move to lift that stay and whether to propose discovery coordination
with the MDL. Facebook's continued refusal to participate in discovery in the MDL could
negatively affect the Ung case as well as further delay progress in this one.
Plaintiffs therefore respectfully request a Case Management Conference to address
outstanding discovery issues. Lead class counsel are available at the Court's convenience. In the
alternative, plaintiffs respectfully request referral of the discovery motions to Magistrate Judge
Cousins.

cc:

Counsel of Record (via ECF)