In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT filed by Perrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Straite, David) (Filed on 7/21/2017) Modified on 7/24/2017 (bwS, COURT STAFF).
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Michael G. Rhodes (116127)
Matthew D. Brown (196972)
Kyle C. Wong (224021)
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
(415) 693-2000
Facsimile:
(415) 693-2222
rhodesmg@cooley.com
brownmd@cooley.com
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-NC
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SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT
IN RE: FACEBOOK, INC.
INTERNET TRACKING
LITIGATION
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
CMC Date:
Time:
Courtroom:
Judge:
Trial Date:
July 28, 2017
10:00 a.m.
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The Hon. Edward J. Davila
None Set
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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, the
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“Parties”) jointly submit this Supplemental Joint Case Management Statement in advance of the
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July 28, 2017 Case Management Conference set by Order dated June 28, 2016 (ECF No. 147),
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supplementing the prior joint statement dated April 21, 2016 (ECF No. 117).
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Case Status
The last case management conference occurred on April 28, 2016. See Tr., ECF No. 123.
The following key events have occurred since that date.
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On June 30, 2017, the Court granted Facebook’s Motion to Dismiss the Second Amended
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Complaint. ECF No. 148. Counts I through V and VIII through XI were dismissed with prejudice.
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Count VI (breach of contract) and Count VII (breach of implied covenant of good faith and fair
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dealing) were dismissed with leave to amend. Plaintiffs intend to file a Third Amended Complaint
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asserting these two claims. In the same Order, the Court also denied Facebook’s motion to stay
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discovery and terminated Plaintiffs’ motion to compel discovery with leave to refile with the
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assigned magistrate judge.
Motions
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There are no pending motions. Defendant anticipates filing a motion to dismiss with
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prejudice the forthcoming Third Amended Complaint. The plaintiffs also anticipate discovery
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motion practice, but pursuant to this Court’s Order dated June 30, 2017 (ECF No. 148), slip op. at
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14, plaintiff will address any such motions to Magistrate Judge Nathanael Cousins.
Status of Related Case in State Court
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A related case, Ung v. Facebook, Inc., No. 112-cv-217244, is pending in Santa Clara
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Superior Court. The case is stayed pending final resolution of this federal MDL. The Ung plaintiffs
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and Facebook have reached an agreement in principle, subject to negotiation and execution of a
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formal written agreement, whereby Facebook will provide certain documents from this federal
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MDL subject to the terms of the Protective Order entered by this Court (to which the Ung plaintiffs
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are anticipated to become Parties) and additional agreed-upon terms.
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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ADR
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The Parties have not discussed any ADR process since the Rule 26(f) conference in 2012.
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Plaintiffs believe mediation at this juncture might be productive, consonant with mandate of Fed.
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R. Civ. P. 1. Facebook does not believe that an ADR process is appropriate at this juncture.
Scheduling
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The Parties believe that the following events will need to be scheduled:
Third Amended Complaint:
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Plaintiffs’ position. Plaintiffs intend to file a Third Amended Complaint asserting claims
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for breach of contract and breach of implied covenant of good faith and fair dealing. During a meet-
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and-confer call prior to filing this joint statement, to enhance efficiency, plaintiffs requested the
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production of two discrete categories of documents in advance of filing the Third Amended
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Complaint, documents that were requested in plaintiffs’ first request for production of documents
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dated Nov. 5, 2012 (see ECF No. 108-2) but to date have not been produced. Defendant declined
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the request.
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First, plaintiffs requested production of the “Help Center” pages which plaintiffs allege are
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incorporated by reference into the defendant’s privacy policy (including the “Data Use Policy”) and
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which plaintiffs contend form a part of the contract with subscribers. Second Amended Complaint
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¶¶ 17-27. In its motion to dismiss the contract claim, defendant based its argument in part on the
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plaintiffs’ failure to include copies of the relevant Help Center pages with the Second Amended
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Complaint. See Motion to Dismiss at 34-35. In would be grossly inefficient to allow defendant to
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continue its multi-year refusal to produce the very documents that it claims should be included with
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a complaint. Second, plaintiffs requested production of documents related to the named plaintiffs
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that are in the custody, control or possession of defendant.
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Once the two discrete categories of documents are produced, plaintiffs propose to file the
Third Amended Complaint within 21 days of production.
Facebook’s Position.
Facebook proposes that Plaintiffs file their Third Amended
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Complaint by August 7, 2017, 10 days after the CMC. Plaintiffs’ suggestion that its discovery
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requests are a proper matter for this CMC runs directly contrary to this Court’s Order terminating
SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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Plaintiffs’ Motion to Compel and directing that Plaintiffs may refile such motion “in accordance
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with the procedures of the assigned magistrate judge.” (ECF No. 148 at 14.) Further, Plaintiffs’
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suggestion that Facebook should be burdened with discovery when Plaintiffs have no operable
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complaint cannot be squared with any reasonable interpretation of the scope of discovery. See Fed.
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R. Civ. Proc. 26(b)(1) (discovery must be “relevant to any party's claim or defense and proportional
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to the needs of the case”).
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Moreover, as Facebook will demonstrate in the context of a properly noticed motion before
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Judge Cousins, Facebook has fully complied with its discovery obligations and thus Plaintiffs’
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requests for two additional categories of documents are unwarranted. First, Plaintiffs never
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requested production of all Help Center pages. In responding to one request (that did not ask for
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Help Center pages), Facebook produced a collection of documents that included a few Help Center
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pages, in full compliance with its discovery obligations as to that request. 1 Second, while Plaintiffs
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did request production of “all documents concerning the named plaintiffs,” they unreasonably
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rejected Facebook’s offer to produce all documents concerning the named Plaintiffs’ browsing
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history—the only information that is at issue in this case.
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Plaintiffs’ attempt to interject its terminated motion to compel into this CMC is additionally
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inappropriate because Plaintiffs provide no conceivable basis for why discovery prior to filing their
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Third Amended Complaint is required. Plaintiffs’ Second Amended Complaint demonstrates that
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they already have access to the information concerning themselves that they now request. Plaintiffs
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alleged that Facebook collected the URLs of the pages that Plaintiffs visited and that those URLs
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are “available to show the Court in camera if needed.” (Second Amended Complaint ¶¶ 115, 118,
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121, 124.) Further, Plaintiffs had access to the entirety of the Help Center when they filed their
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lawsuits in 2011. 2
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Plaintiffs’ Motion to Compel did not seek to compel production of additional Help Center pages.
(See ECF No. 110.)
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Plaintiffs’ stated inability to point to the language they contend comprises the alleged contract that
was allegedly breached further underscores just how tenuous the two contract-related claims are.
Burdening Facebook with such discovery prior to a determination that Plaintiffs’ claim is viable
would outweigh its likely benefit. Fed. R. Civ. Proc. 26(b)(1).
SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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Briefing on Facebook’s Anticipated Motion to Dismiss the Third Amended Complaint:
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The Parties agree that Facebook’s anticipated motion to dismiss should be filed within 30
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days of the deadline for filing the Third Amended Complaint, with Plaintiffs’ opposition due 30
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days following the deadline to file the motion, and the reply (if any) due 15 days after the deadline
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to file the opposition. The Parties also agree that each of these proposed dates would be adjusted
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if necessary so that the deadline would fall on the first day after a weekend or court holiday.
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DATED: July 21, 2017
KAPLAN FOX & KILSHEIMER LLP
Laurence D. King
David A. Straite
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By:
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Interim Co-Class Counsel
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/s/ David A. Straite
DATED: July 21, 2017
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SILVERMAN THOMPSON
SLUTKIN WHITE LLC
Stephen G. Grygiel
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By:
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Interim Co-Class Counsel
/s/ Stephen G. Grygiel
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COOLEY LLP
Michael G. Rhodes
Matthew D. Brown
Kyle C. Wong
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By: /s/ Matthew D. Brown
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Attorneys for Defendant FACEBOOK, INC.
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DATED: July 21, 2017
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)
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I, David A. Straite, 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 Civil Local Rule 5-1(i)(3), I hereby attest that all signatories have concurred in
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this filing.
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DATED: July 21, 2017
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KAPLAN FOX & KILSHEIMER LLP
LAURENCE D. KING
DAVID A. STRAITE
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By: /s/ David Straite
DAVID A. STRAITE
Interim Co-Class Counsel
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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT
CASE NO. 5:12-MD-02314-EJD-NC
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