In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 144

OPPOSITION/RESPONSE (re #143 ADMINISTRATIVE MOTION to Schedule Subsequent Case Management Conference ) filed byFacebook Inc.. (Brown, Matthew) (Filed on 4/24/2017)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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In re: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD
FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ ADMINISTRATIVE MOTION
TO SCHEDULE SUBSEQUENT CASE
MANAGEMENT CONFERENCE
Judge:
Trial Date:

Hon. Edward J. Davila
None set

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Plaintiffs’ request for a case management conference (“CMC”) appears to be nothing

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more than a mechanism for reminding the Court about pending motions and urging the Court to

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adopt Plaintiffs’ preferred schedule for ruling on them.

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discovery issues, motions to seal, and the status of a state-court case provide no reason to hold a

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CMC. Contrary to Plaintiffs’ suggestion, there has been no further discovery impasse beyond the

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issues that have already been fully briefed. Nor does the status of this case interfere with

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discovery or case management in Ung v. Facebook, a case pending in state court that is currently

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stayed (and in which the plaintiffs are represented by separate counsel). A CMC would serve no

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purpose, waste judicial and party resources, and benefit neither the Court nor the parties.

In reality, Plaintiffs’ discussion of

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

OPP. TO PLAINTIFFS’ ADMIN. MOT. TO
SCHEDULE A CASE MANAGEMENT CONFERENCE
NO. 5:12-MD-02314 EJD

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I.

PLAINTIFFS’ REHASHING OF
FOR A CMC.

DISCOVERY ISSUES DOES NOT SUPPORT THEIR REQUEST

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Plaintiffs’ Motion merely rehashes issues addressed in the parties’ competing Motion to

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Compel Discovery (ECF No. 110) and Motion for a Protective Order (ECF No. 108) (“Discovery

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Motions”) and does not explain any purported need for a CMC. Contrary to Plaintiffs’ Motion,

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Facebook has not suddenly “granted itself a full discovery stay.” (Motion at 2.)

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Facebook has responded to Plaintiffs’ Requests for Production by producing 65,000 pages of

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documents and asserting appropriate objections to additional categories of discovery sought by

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Plaintiffs. As explained in detail in the Discovery Motions and related briefing, the parties

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disagree as to whether additional documents sought by Plaintiffs are relevant and within the scope

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of discoverable information and whether any further discovery is warranted given the pendency

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of Facebook’s dispositive Motion to Dismiss. Specifically, Facebook’s Opposition to Plaintiffs’

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Motion to Compel argues that (1) Plaintiffs have not demonstrated that discovery from their

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additional 26 proposed custodians is relevant or proportional to the needs of the case; (2)

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Plaintiffs’ request for all documents concerning the named Plaintiffs, unbounded in time or scope,

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is overbroad, implicates the privacy interests of third parties, and requests documents equally

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available to Plaintiffs; and (3) Facebook has applied confidentiality designations in good faith and

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Plaintiffs have failed to contest those designations in accordance with the stipulated protective

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order. Plaintiffs cite no authority for the proposition that Facebook is obligated to provide this

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objectionable discovery prior to the Court’s determination that the discovery is relevant and

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within the scope of Facebook’s discovery obligations.

Instead,

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Plaintiffs’ Motion fails to identify any specific dispute or scheduling issue not addressed

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in the parties’ briefing that might be resolved at a CMC prior to the Court’s resolution of the

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Discovery Motions.

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additional correspondence between the parties regarding discovery since these motions were

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briefed. Thus, Plaintiffs’ own conduct suggests that they too understood that the discovery issues

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are before the Court and that any further discovery is on hold until the Court’s decision.

As Plaintiffs’ Motion acknowledges (Motion at 2), there has been no

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

OPP. TO PLAINTIFFS’ ADMIN. MOT. TO
SCHEDULE A CASE MANAGEMENT CONFERENCE
NO. 5:12-MD-02314 EJD

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A further hearing would serve no purpose and would burden the Court’s time

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unnecessarily. Accordingly, Plaintiffs’ Motion should be denied.1

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II.

A CMC IS NOT NECESSARY TO ADDRESS OUTSTANDING MOTIONS TO SEAL.

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Plaintiffs also contend that two administrative motions regarding the sealing of certain

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discovery material provide reason to schedule a CMC. (Motion at 4.) These motions concern the

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narrow redaction of non-public, confidential, proprietary Facebook information from Plaintiffs’

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Opposition to Facebook’s Motion to Dismiss and Second Amended Consolidated Complaint

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(“SACC”) and the sealing of certain exhibits attached to the SACC produced pursuant to the

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parties’ Stipulated Protective Order. Plaintiffs identify no reason for urgency regarding these

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administrative motions, nor identify any additional issues to be addressed at a CMC that have not

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already been explained in the briefs submitted by the parties.

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III.

THE STATE-COURT CASE, UNG V. FACEBOOK, INC., PROVIDES NO REASON FOR A CMC.

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Plaintiffs’ contention that holding a CMC will benefit discovery in a different case in

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California state court (in which the plaintiffs are represented by separate counsel) is both

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speculative and irrelevant. Any CMC held in this case would be about this case—it would not be

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attended by the plaintiffs litigating Ung v. Facebook, Inc. or address their interests. Further, the

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state court stayed the Ung case in its entirety pending resolution of this federal MDL. Whether

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the Ung plaintiffs move the California state court to lift the stay in Ung, and whether the state

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court elects do so, is entirely independent of whether discovery is appropriate in this case.

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Certainly neither plaintiffs’ counsel in Ung nor Plaintiffs’ counsel here should be seeking to use

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the discovery process in this case to do an “end run” around the stay in Ung.

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****

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs’ alternative suggestion that the Court should refer the Discovery Motions to a
magistrate judge simply appears to be an attempt to exert control over the Court’s docket. The
Court already explained to Plaintiffs at the hearing on the parties’ pending motions that it wanted
to focus oral argument on Facebook’s Motion to Dismiss but had read the parties’ Discovery
Motions and had taken them under submission. Moreover, the critical issue of whether discovery
should proceed while Facebook’s dispositive motion is pending is more appropriately decided by
the same judge who is considering that motion.
3.

OPP. TO PLAINTIFFS’ ADMIN. MOT. TO
SCHEDULE A CASE MANAGEMENT CONFERENCE
NO. 5:12-MD-02314 EJD

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For the foregoing reasons, a CMC is unnecessary at this time. Plaintiffs’ Motion should

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be denied.

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Dated: April 24, 2017

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COOLEY LLP
/s/ Matthew D. Brown
Matthew D. Brown
Attorneys for Defendant FACEBOOK, INC.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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OPP. TO PLAINTIFFS’ ADMIN. MOT. TO
SCHEDULE A CASE MANAGEMENT CONFERENCE
NO. 5:12-MD-02314 EJD