In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 143

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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1 2 3 4 5 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 6 7 8 9 10 11 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 12 13 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 16 17 No. 5:12-md-02314-EJD-NC 18 19 20 21 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) 22 23 Judge: Trial Date: Hon. Edward J. Davila Not yet set 24 25 26 27 28 PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC 1 I. 2 Introduction Plaintiffs respectfully request that the Court schedule a case management conference to address 3 the parties’ discovery impasse. Alternatively, plaintiffs ask that the Court refer the outstanding 4 discovery motions to Magistrate Judge Nathanael Cousins. The most recent case management 5 conference was held approximately one year ago, on April 28, 2016 and the most recent Supplemental 6 Joint Case Management Statement was submitted on April 21, 2016 (ECF No. 117). However, the 7 Court did not address discovery issues at that time. Plaintiffs’ counsel contacted counsel for defendant via email on April 7, 2017 to ask whether 8 9 they would support or oppose this request, but never received a response. By letter dated April 11, 2017 10 (ECF No. 141), plaintiffs wrote to the Court asking for the relief requested in today’s administrative 11 motion. As defendant Facebook, Inc. correctly noted in its response dated April 14, 2017 (ECF No. 12 142), this Court’s Standing Order for Civil Cases dated January 25, 2017 provides that requests for 13 Court action should be made by stipulation or motion rather than by letter, and plaintiffs therefore 14 submit this motion in place of the letter. In defendant’s April 14, 2017 response, defendant represented 15 that it opposes scheduling a case management conference. Accompanying today’s administrative 16 motion is a declaration of David A. Straite pursuant to Civil L.R. 7-11. 17 II. 18 Legal Standard “In any action, the court may order the attorneys and any unrepresented parties to appear for one 19 or more pretrial conferences.” Fed. R. Civ. P. 16(a). The purpose of such conferences can include, 20 among other things, “establishing early and continuing control so that the case will not be protracted 21 because of lack of management.” Rule 16(a)(2). Matters for consideration at a case management 22 conference specifically include “controlling and scheduling discovery,” Rule 16(c)(2)(F), “referring 23 matters to a magistrate judge or a master,” Rule 16(c)(2)(H) and “disposing of pending motions.” Rule 24 16(c)(2)(K). In addition to the initial scheduling conference, the Court may schedule subsequent case 25 management conferences sua sponte or on motion. N.D. Cal. L.R. 16-10(c). 26 27 28 -1PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC 1 III. Discussion 2 A. Facebook Has Granted Itself a Full Discovery Stay Without Court Authorization 3 The Court has never stayed discovery. At the June 29, 2012 case management conference at the 4 beginning of this case, this Court noted that “if there is a request to stay discovery pending whatever, I 5 would respectfully decline that invitation, and I think discovery should go forward as in any other case.” 6 Tr. at 8:3-7 (ECF No. 48). Despite the Court’s clear statement, defendant Facebook, Inc. has 7 unilaterally granted itself a discovery stay and refuses to participate in this litigation. 8 Defendant has only produced documents from three employees. Simply based on a review of the 9 documents produced, some of which were used to support additional allegations in the Second Amended 10 Complaint dated Nov. 30, 2015 (ECF No. 93), it is clear that more than two dozen senior employees 11 authored or received discoverable documents. The records of these custodians should be searched and 12 the responsive documents produced. Defendant also refuses to produce documents related to entire 13 categories of requested documents – including any documents related to the named plaintiffs – 14 improperly impeding plaintiffs’ ability to move for class certification. Defendant also inappropriately 15 designated more than 99% of the current production “Highly Confidential Attorneys-Eyes-Only” in 16 violation of the protective order prohibiting “[m]ass, indiscriminate, or routine designations,” see ECF 17 No. 75 at § 5.2, making their use at deposition nearly impossible as a practical matter. 18 Between January 14, 2016 and February 23, 2016, the parties met and conferred repeatedly 19 regarding the impasse. See generally ECF No. 110-1. Plaintiffs said on February 23, 2016 that a motion 20 to compel was unavoidable, but agreed to refrain from filing for at least one week to give defense 21 counsel time to confer with its client. Id. Defendant instead used that week to draft a motion to stay and 22 filed it exactly one week later on March 2, 2016. ECF No. 108. Plaintiffs moved to compel discovery 23 on March 16, 2016 (ECF No. 110), and briefing on the cross-motions continued in parallel.1 24 Both discovery motions remain outstanding, and discovery has not progressed for more than year 25 since then. See also Local Rule 7-13 Notice dated October 17, 2016 (ECF No. 138). However, 26 plaintiffs are unaware of any case, statute or rule supporting Facebook’s unilateral grant to itself of a full 27 1 28 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. -2PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC 1 discovery stay during the pendency of a motion to compel and motion to stay. Discovery should 2 progress in the ordinary course unless and until the Court orders otherwise. For this reason, plaintiffs 3 believe a case management conference would be enormously useful. 4 B. Outstanding Administrative Motions 5 In addition to the outstanding discovery motions (ECF Nos. 108 & 110), also pending before the 6 Court are two administrative motions regarding the sealing of certain discovery material used in the 7 second amended complaint (ECF Nos. 92, 94, 97 and 98) and in the brief in opposition to the motion to 8 dismiss (ECF Nos. 104 and 106). Plaintiffs submit that it would be useful to address these outstanding 9 motions at the next CMC as well. 10 C. Update on Related State Court Case Ung v. Facebook, Inc. 11 As the Court is aware, a parallel state-court action is proceeding in Santa Clara County on behalf 12 of an overlapping proposed California class. The Superior Court has already denied Facebook’s 13 demurrer as to the invasion of privacy claim – a claim also asserted in this case. See Ung v. Facebook, 14 Inc., Case No. 1-12-CV-217244, Order re: Demurrer dated July 2, 2012 (Cal. Super. Ct., Santa Clara 15 County), provided to the Court as Ex. HH to the Second Amended Complaint dated Nov. 30, 2015 (ECF 16 No. 93-34). However, the Superior Court stayed discovery in Ung on July 3, 2012 in deference to the 17 MDL. See Stipulation and Order to Continue Case Status Conference dated April 13, 2017, attached as 18 Exhibit A. The plaintiffs in Ung informed Facebook that they may move to lift the stay in light of the 19 discovery delay in the MDL and may seek to coordinate discovery between the cases. Id. The Ung 20 parties are now conferring on plaintiffs’ request and the Superior Court continued the Case Status 21 Conference to May 23, 2017 to facilitate discussions. Id. 22 Although the Ung parties represented that they will confer in good faith, Facebook represented in 23 the stipulation that “its current view is that the factors that necessitated the original stay, including the 24 interests of comity and judicial economy and the need to avoid inconsistent rulings between courts in 25 different jurisdictions, continue to apply.” Id. Facebook’s continued refusal to participate in discovery 26 in the MDL therefore will certainly negatively affect the Ung case as well as further delay progress in 27 this one. Lead Counsel in the MDL are more than willing to coordinate discovery between the cases and 28 have already so informed all counsel in Ung. Plaintiffs therefore believe that a case management -3PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC 1 conference in advance of the May 23, 2017 Superior Court status conference will assist the progress of 2 both cases. 3 IV. 4 Conclusion Plaintiffs therefore respectfully request a Case Management Conference to address outstanding 5 discovery issues. Lead class counsel are available at the Court’s convenience. In the alternative, 6 plaintiffs respectfully request referral of the discovery motions to Magistrate Judge Cousins. 7 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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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 22 23 24 25 26 27 28 -4PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC 1 2 ATTESTATION OF E-FILED SIGNATURE I, David A. Straite, court-appointed interim lead counsel for the proposed Class, am the ECF user 3 whose ID and password are being used to file the foregoing. In compliance with Civil L.R. 5-1(i)(3), I 4 hereby attest that Stephen Grygiel has concurred in this filing. 5 6 /s/ David A. Straite 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ MOTION TO SCHEDULE SUBSEQUENT CASE MANAGEMENT CONFERENCE No. 5:12-md-02314-EJD-NC

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