In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 151

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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1 2 3 4 5 6 7 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. 8 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 9 13 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 14 Interim Co-Class Counsel 10 11 12 15 16 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 18 No. 5:12-md-02314-EJD-NC 19 20 21 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT IN RE: FACEBOOK, INC. INTERNET TRACKING LITIGATION 22 23 24 25 26 27 28 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. 4 The Hon. Edward J. Davila None Set 1 Plaintiffs Perrin Davis, Cynthia Quinn, Brian Lentz, and Matthew Vickery (collectively, 2 “Plaintiffs”) and Defendant Facebook, Inc. (“Facebook”) (Plaintiffs and Facebook collectively, the 3 “Parties”) jointly submit this Supplemental Joint Case Management Statement in advance of the 4 July 28, 2017 Case Management Conference set by Order dated June 28, 2016 (ECF No. 147), 5 supplementing the prior joint statement dated April 21, 2016 (ECF No. 117). 6 7 8 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. 9 On June 30, 2017, the Court granted Facebook’s Motion to Dismiss the Second Amended 10 Complaint. ECF No. 148. Counts I through V and VIII through XI were dismissed with prejudice. 11 Count VI (breach of contract) and Count VII (breach of implied covenant of good faith and fair 12 dealing) were dismissed with leave to amend. Plaintiffs intend to file a Third Amended Complaint 13 asserting these two claims. In the same Order, the Court also denied Facebook’s motion to stay 14 discovery and terminated Plaintiffs’ motion to compel discovery with leave to refile with the 15 assigned magistrate judge. Motions 16 17 There are no pending motions. Defendant anticipates filing a motion to dismiss with 18 prejudice the forthcoming Third Amended Complaint. The plaintiffs also anticipate discovery 19 motion practice, but pursuant to this Court’s Order dated June 30, 2017 (ECF No. 148), slip op. at 20 14, plaintiff will address any such motions to Magistrate Judge Nathanael Cousins. Status of Related Case in State Court 21 22 A related case, Ung v. Facebook, Inc., No. 112-cv-217244, is pending in Santa Clara 23 Superior Court. The case is stayed pending final resolution of this federal MDL. The Ung plaintiffs 24 and Facebook have reached an agreement in principle, subject to negotiation and execution of a 25 formal written agreement, whereby Facebook will provide certain documents from this federal 26 MDL subject to the terms of the Protective Order entered by this Court (to which the Ung plaintiffs 27 are anticipated to become Parties) and additional agreed-upon terms. 28 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 1 ADR 1 2 The Parties have not discussed any ADR process since the Rule 26(f) conference in 2012. 3 Plaintiffs believe mediation at this juncture might be productive, consonant with mandate of Fed. 4 R. Civ. P. 1. Facebook does not believe that an ADR process is appropriate at this juncture. Scheduling 5 6 7 The Parties believe that the following events will need to be scheduled: Third Amended Complaint: 8 Plaintiffs’ position. Plaintiffs intend to file a Third Amended Complaint asserting claims 9 for breach of contract and breach of implied covenant of good faith and fair dealing. During a meet- 10 and-confer call prior to filing this joint statement, to enhance efficiency, plaintiffs requested the 11 production of two discrete categories of documents in advance of filing the Third Amended 12 Complaint, documents that were requested in plaintiffs’ first request for production of documents 13 dated Nov. 5, 2012 (see ECF No. 108-2) but to date have not been produced. Defendant declined 14 the request. 15 First, plaintiffs requested production of the “Help Center” pages which plaintiffs allege are 16 incorporated by reference into the defendant’s privacy policy (including the “Data Use Policy”) and 17 which plaintiffs contend form a part of the contract with subscribers. Second Amended Complaint 18 ¶¶ 17-27. In its motion to dismiss the contract claim, defendant based its argument in part on the 19 plaintiffs’ failure to include copies of the relevant Help Center pages with the Second Amended 20 Complaint. See Motion to Dismiss at 34-35. In would be grossly inefficient to allow defendant to 21 continue its multi-year refusal to produce the very documents that it claims should be included with 22 a complaint. Second, plaintiffs requested production of documents related to the named plaintiffs 23 that are in the custody, control or possession of defendant. 24 25 26 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 27 Complaint by August 7, 2017, 10 days after the CMC. Plaintiffs’ suggestion that its discovery 28 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 2 1 Plaintiffs’ Motion to Compel and directing that Plaintiffs may refile such motion “in accordance 2 with the procedures of the assigned magistrate judge.” (ECF No. 148 at 14.) Further, Plaintiffs’ 3 suggestion that Facebook should be burdened with discovery when Plaintiffs have no operable 4 complaint cannot be squared with any reasonable interpretation of the scope of discovery. See Fed. 5 R. Civ. Proc. 26(b)(1) (discovery must be “relevant to any party's claim or defense and proportional 6 to the needs of the case”). 7 Moreover, as Facebook will demonstrate in the context of a properly noticed motion before 8 Judge Cousins, Facebook has fully complied with its discovery obligations and thus Plaintiffs’ 9 requests for two additional categories of documents are unwarranted. First, Plaintiffs never 10 requested production of all Help Center pages. In responding to one request (that did not ask for 11 Help Center pages), Facebook produced a collection of documents that included a few Help Center 12 pages, in full compliance with its discovery obligations as to that request. 1 Second, while Plaintiffs 13 did request production of “all documents concerning the named plaintiffs,” they unreasonably 14 rejected Facebook’s offer to produce all documents concerning the named Plaintiffs’ browsing 15 history—the only information that is at issue in this case. 16 Plaintiffs’ attempt to interject its terminated motion to compel into this CMC is additionally 17 inappropriate because Plaintiffs provide no conceivable basis for why discovery prior to filing their 18 Third Amended Complaint is required. Plaintiffs’ Second Amended Complaint demonstrates that 19 they already have access to the information concerning themselves that they now request. Plaintiffs 20 alleged that Facebook collected the URLs of the pages that Plaintiffs visited and that those URLs 21 are “available to show the Court in camera if needed.” (Second Amended Complaint ¶¶ 115, 118, 22 121, 124.) Further, Plaintiffs had access to the entirety of the Help Center when they filed their 23 lawsuits in 2011. 2 24 25 26 27 28 1 Plaintiffs’ Motion to Compel did not seek to compel production of additional Help Center pages. (See ECF No. 110.) 2 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 3 1 Briefing on Facebook’s Anticipated Motion to Dismiss the Third Amended Complaint: 2 The Parties agree that Facebook’s anticipated motion to dismiss should be filed within 30 3 days of the deadline for filing the Third Amended Complaint, with Plaintiffs’ opposition due 30 4 days following the deadline to file the motion, and the reply (if any) due 15 days after the deadline 5 to file the opposition. The Parties also agree that each of these proposed dates would be adjusted 6 if necessary so that the deadline would fall on the first day after a weekend or court holiday. 7 8 9 DATED: July 21, 2017 KAPLAN FOX & KILSHEIMER LLP Laurence D. King David A. Straite 10 By: 11 Interim Co-Class Counsel 12 13 /s/ David A. Straite DATED: July 21, 2017 14 SILVERMAN THOMPSON SLUTKIN WHITE LLC Stephen G. Grygiel 15 By: 16 Interim Co-Class Counsel /s/ Stephen G. Grygiel 17 19 COOLEY LLP Michael G. Rhodes Matthew D. Brown Kyle C. Wong 20 By: /s/ Matthew D. Brown 21 Attorneys for Defendant FACEBOOK, INC. 18 DATED: July 21, 2017 22 23 24 25 26 27 28 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 4 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3) 1 2 I, David A. Straite, am the ECF User whose ID and password are being used to file the 3 following: SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT. In 4 compliance with Civil Local Rule 5-1(i)(3), I hereby attest that all signatories have concurred in 5 this filing. 6 7 DATED: July 21, 2017 8 KAPLAN FOX & KILSHEIMER LLP LAURENCE D. KING DAVID A. STRAITE 9 10 By: /s/ David Straite DAVID A. STRAITE Interim Co-Class Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT CASE NO. 5:12-MD-02314-EJD-NC 5

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