In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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ADMINISTRATIVE MOTION to Schedule Subsequent Case Management Conference filed by Perrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. Responses due by 4/24/2017. (Attachments: #1 Declaration of David A. Straite, #2 Exhibit A, #3 Proposed Order)(Straite, David) (Filed on 4/18/2017)
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Frederic S. Fox (admitted pro hac vice)
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
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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Laurence D. King (206423)
Mario 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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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
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No. 5:12-md-02314-EJD-NC
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IN RE: FACEBOOK, INC. INTERNET
TRACKING LITIGATION
PLAINTIFFS’ ADMINISTRATIVE MOTION
TO SCHEDULE SUBSEQUENT CASE
MANAGEMENT CONFERENCE
Fed. R. Civ. P. 16(a) and (c)
N.D. Cal. L.R. 16-10(c) and (d)
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Judge:
Trial Date:
Hon. Edward J. Davila
Not yet set
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PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE
No. 5:12-md-02314-EJD-NC
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I.
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Introduction
Plaintiffs respectfully request that the Court schedule a case management conference to address
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the parties’ discovery impasse. Alternatively, plaintiffs ask that the Court refer the outstanding
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discovery motions to Magistrate Judge Nathanael Cousins. The most recent case management
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conference was held approximately one year ago, on April 28, 2016 and the most recent Supplemental
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Joint Case Management Statement was submitted on April 21, 2016 (ECF No. 117). However, the
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Court did not address discovery issues at that time.
Plaintiffs’ counsel contacted counsel for defendant via email on April 7, 2017 to ask whether
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they would support or oppose this request, but never received a response. By letter dated April 11, 2017
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(ECF No. 141), plaintiffs wrote to the Court asking for the relief requested in today’s administrative
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motion. As defendant Facebook, Inc. correctly noted in its response dated April 14, 2017 (ECF No.
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142), this Court’s Standing Order for Civil Cases dated January 25, 2017 provides that requests for
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Court action should be made by stipulation or motion rather than by letter, and plaintiffs therefore
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submit this motion in place of the letter. In defendant’s April 14, 2017 response, defendant represented
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that it opposes scheduling a case management conference. Accompanying today’s administrative
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motion is a declaration of David A. Straite pursuant to Civil L.R. 7-11.
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II.
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Legal Standard
“In any action, the court may order the attorneys and any unrepresented parties to appear for one
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or more pretrial conferences.” Fed. R. Civ. P. 16(a). The purpose of such conferences can include,
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among other things, “establishing early and continuing control so that the case will not be protracted
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because of lack of management.” Rule 16(a)(2). Matters for consideration at a case management
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conference specifically include “controlling and scheduling discovery,” Rule 16(c)(2)(F), “referring
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matters to a magistrate judge or a master,” Rule 16(c)(2)(H) and “disposing of pending motions.” Rule
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16(c)(2)(K). In addition to the initial scheduling conference, the Court may schedule subsequent case
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management conferences sua sponte or on motion. N.D. Cal. L.R. 16-10(c).
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No. 5:12-md-02314-EJD-NC
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III.
Discussion
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A. Facebook Has Granted Itself a Full Discovery Stay Without Court Authorization
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The Court has never stayed discovery. At the June 29, 2012 case management conference at the
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beginning of this case, this Court noted that “if there is a request to stay discovery pending whatever, I
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would respectfully decline that invitation, and I think discovery should go forward as in any other case.”
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Tr. at 8:3-7 (ECF No. 48). Despite the Court’s clear statement, defendant Facebook, Inc. has
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unilaterally granted itself a discovery stay and refuses to participate in this litigation.
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Defendant has only produced documents from three employees. Simply based on a review of the
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documents produced, some of which were used to support additional allegations in the Second Amended
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Complaint dated Nov. 30, 2015 (ECF No. 93), it is clear that more than two dozen senior employees
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authored or received discoverable documents. The records of these custodians should be searched and
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the responsive documents produced. Defendant also refuses to produce documents related to entire
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categories of requested documents – including any documents related to the named plaintiffs –
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improperly impeding plaintiffs’ ability to move for class certification. Defendant also inappropriately
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designated more than 99% of the current production “Highly Confidential Attorneys-Eyes-Only” in
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violation of the protective order prohibiting “[m]ass, indiscriminate, or routine designations,” see ECF
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No. 75 at § 5.2, making their use at deposition nearly impossible as a practical matter.
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Between January 14, 2016 and February 23, 2016, the parties met and conferred repeatedly
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regarding the impasse. See generally ECF No. 110-1. Plaintiffs said on February 23, 2016 that a motion
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to compel was unavoidable, but agreed to refrain from filing for at least one week to give defense
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counsel time to confer with its client. Id. Defendant instead used that week to draft a motion to stay and
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filed it exactly one week later on March 2, 2016. ECF No. 108. Plaintiffs moved to compel discovery
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on March 16, 2016 (ECF No. 110), and briefing on the cross-motions continued in parallel.1
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Both discovery motions remain outstanding, and discovery has not progressed for more than year
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since then. See also Local Rule 7-13 Notice dated October 17, 2016 (ECF No. 138). However,
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plaintiffs are unaware of any case, statute or rule supporting Facebook’s unilateral grant to itself of a full
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Plaintiffs’ Reply in Further Support of the Motion to Compel dated April 6, 2016 (ECF No. 115) also
contains a motion to strike portions of two Facebook declarations (ECF Nos. 114-1 and 114-2) not made
on personal knowledge. The motion to strike remains outstanding.
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No. 5:12-md-02314-EJD-NC
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discovery stay during the pendency of a motion to compel and motion to stay. Discovery should
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progress in the ordinary course unless and until the Court orders otherwise. For this reason, plaintiffs
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believe a case management conference would be enormously useful.
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B. Outstanding Administrative Motions
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In addition to the outstanding discovery motions (ECF Nos. 108 & 110), also pending before the
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Court are two administrative motions regarding the sealing of certain discovery material used in the
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second amended complaint (ECF Nos. 92, 94, 97 and 98) and in the brief in opposition to the motion to
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dismiss (ECF Nos. 104 and 106). Plaintiffs submit that it would be useful to address these outstanding
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motions at the next CMC as well.
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C. Update on Related State Court Case Ung v. Facebook, Inc.
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As the Court is aware, a parallel state-court action is proceeding in Santa Clara County on behalf
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of an overlapping proposed California class. The Superior Court has already denied Facebook’s
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demurrer as to the invasion of privacy claim – a claim also asserted in this case. See Ung v. Facebook,
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Inc., Case No. 1-12-CV-217244, Order re: Demurrer dated July 2, 2012 (Cal. Super. Ct., Santa Clara
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County), provided to the Court as Ex. HH to the Second Amended Complaint dated Nov. 30, 2015 (ECF
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No. 93-34). However, the Superior Court stayed discovery in Ung on July 3, 2012 in deference to the
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MDL. See Stipulation and Order to Continue Case Status Conference dated April 13, 2017, attached as
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Exhibit A. The plaintiffs in Ung informed Facebook that they may move to lift the stay in light of the
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discovery delay in the MDL and may seek to coordinate discovery between the cases. Id. The Ung
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parties are now conferring on plaintiffs’ request and the Superior Court continued the Case Status
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Conference to May 23, 2017 to facilitate discussions. Id.
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Although the Ung parties represented that they will confer in good faith, Facebook represented in
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the stipulation that “its current view is that the factors that necessitated the original stay, including the
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interests of comity and judicial economy and the need to avoid inconsistent rulings between courts in
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different jurisdictions, continue to apply.” Id. Facebook’s continued refusal to participate in discovery
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in the MDL therefore will certainly negatively affect the Ung case as well as further delay progress in
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this one. Lead Counsel in the MDL are more than willing to coordinate discovery between the cases and
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have already so informed all counsel in Ung. Plaintiffs therefore believe that a case management
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No. 5:12-md-02314-EJD-NC
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conference in advance of the May 23, 2017 Superior Court status conference will assist the progress of
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both cases.
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IV.
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Conclusion
Plaintiffs therefore respectfully request a Case Management Conference to address outstanding
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discovery issues. Lead class counsel are available at the Court’s convenience. In the alternative,
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plaintiffs respectfully request referral of the discovery motions to Magistrate Judge Cousins.
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Dated: April 18, 2017
Respectfully submitted,
KAPLAN, FOX & KILSHEIMER LLP
SILVERMAN, THOMPSON, SLUTKIN &
WHITE LLC
By:
/s/ David A. Straite
Frederic S. Fox (admitted pro hac vice)
David A. Straite (admitted pro hac vice)
850 Third Avenue
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
dstraite@kaplanfox.com
By: /s/ Stephen G. Grygiel
Stephen G. Grygiel (admitted pro hac vice)
201 N. Charles St., #2600
Baltimore, MD 21201
Telephone (410) 385-2225
Facsimile: (410) 547-2432
sgrygiel@mdattorney.com
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Interim Co-Lead Counsel
Laurence D. King (206423)
Mario Choi (243409)
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: (415) 772-4700
Fax: (415) 772-4707
lking@kaplanfox.com
Interim Co-Lead Counsel
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No. 5:12-md-02314-EJD-NC
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ATTESTATION OF E-FILED SIGNATURE
I, David A. Straite, court-appointed interim lead counsel for the proposed Class, am the ECF user
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whose ID and password are being used to file the foregoing. In compliance with Civil L.R. 5-1(i)(3), I
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hereby attest that Stephen Grygiel has concurred in this filing.
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/s/ David A. Straite
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PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE
No. 5:12-md-02314-EJD-NC
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