In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 154

Transcript of Proceedings held on 07/28/2017, before Judge Davila. Court Reporter Irene L. Rodriguez, email address [e-mail]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re #153 Transcript Order ) Release of Transcript Restriction set for 10/30/2017. (Related documents(s) #153 ) (Rodriguez, Irene) (Filed on 8/1/2017)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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IN RE:
FACEBOOK INTERNET TRACKING
LITIGATION.

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE

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A-P-P-E-A-R-A-N-C-E-S
FOR THE PLAINTIFFS:

KAPLAN, FOX & KILSHEIMER LLP
BY:
DAVID A. STRAITE
850 THIRD AVENUE
NEW YORK, NEW YORK 10022

FOR THE DEFENDANTS:

COOLEY LLP
BY:
MATTHEW D. BROWN
101 CALIFORNIA STREET, 5TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111

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SAN JOSE, CALIFORNIA

PAGES 1 - 28

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12-MD-02314-EJD

JULY 28, 2017

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CASE NO.

OFFICIAL COURT REPORTER:

IRENE L. RODRIGUEZ, CSR, RMR, CRR
CERTIFICATE NUMBER 8074

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY,
TRANSCRIPT PRODUCED WITH COMPUTER.

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UNITED STATES COURT REPORTERS

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SAN JOSE, CALIFORNIA

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JULY 28, 2017
P R O C E E D I N G S

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(COURT CONVENED AT 9:59 A.M.)

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THE COURT:

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IF I COULD HAVE THE APPEARANCES.

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MR. STRAITE:

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THE COURT:

THANK YOU.

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MR. BROWN:

AND MATTHEW BROWN FOR FACEBOOK.

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THE COURT:

GOOD MORNING.

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WE'RE ON FOR A CASE MANAGEMENT CONFERENCE.

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FORWARD.

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THANK YOU FOR YOUR COURTESY.

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TO DO IS TO GIVE YOU SOME DATES TODAY FOR FILING AND HEARING

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AND THOSE TYPES OF THINGS.

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THERE'S AN ISSUE ABOUT DISCOVERY AND WHETHER OR NOT FACEBOOK

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SHOULD PROVIDE ADDITIONAL REQUESTED ADDITIONAL DISCOVERY AS TO

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NOW SOME DISCRETE ISSUE IT SOUNDS LIKE.

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MR. STRAITE:

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THE COURT:

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THIS BE FOR FACEBOOK TO PRODUCE?

LET'S CALL OUR MORNING CASE 12-MD-2314.

THIS IS DAVID STRAITE FROM KAPLAN, FOX

& KILSHEIMER NEW YORK FOR THE PLAINTIFFS.

THANK YOU.

GOOD MORNING.

NICE TO SEE YOU BOTH.
YOU CAN COME

I DID RECEIVE -- OH, YOU CAN BE SEATED.
I DID RECEIVE YOUR STATEMENT.

SURE, YOU CAN BOTH COME UP.

THANK YOU.

SO WHAT I INTEND

I ALSO WANTED TO TALK A LITTLE BIT ABOUT -- IT SEEMS LIKE

CAN YOU JUST TELL ME, WHAT IS IT THAT YOU THINK YOU NEED
THAT YOU DON'T ALREADY HAVE.
THANK YOU, YOUR HONOR.

AND HOW VOLUMINOUS AND BURDENSOME WILL

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MR. STRAITE:

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FIRST CATEGORY OF DOCUMENTS THAT WE WOULD LIKE WOULD BE COPIES

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OF THE HELP CENTER PAGES THAT WE'VE ALLEGED INFORM THE MEANING

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OF THE PRIVACY POLICY AND THE SRR, THAT'S THE STATEMENT OF

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RIGHTS AND RESPONSIBILITIES.

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CONDITIONS.

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EVERY SINGLE HELP CENTER PAGE THAT'S RELEVANT FOR OUR CLAIM DID

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APPEAR DURING THE CLASS PERIOD.

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THAT WE HAVE BEEN WORKING VERY HARD WITH OUR OUTSIDE

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INVESTIGATORS AND INSIDE INVESTIGATORS.

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THIS IS SOMETHING THAT WE'VE LEARNED IN THE LAST FEW DAYS SO

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IT'S NOT IN THE CMC STATEMENT.

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MORNING THAT WE MAY HAVE AN ALTERNATIVE SOLUTION THAT YOUR

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HONOR MAY LIKE, AND I JUST RAN IT THROUGH HIM BECAUSE IT WAS A

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BRAINSTORM.

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OF THE RELEVANT LANGUAGE OF THE HISTORICAL HELP CENTER PAGES

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THAT WE THINK ARE PART OF THE CONTRACT OR AT LEAST HELP DEFINE

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THE CONTRACT.

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THE COURT:

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MR. STRAITE:

THE COURT:

OKAY.

THANK YOU, YOUR HONOR.

THE

GENERALLY THAT'S THE TERMS AND

SO CAN YOU TELL ME THOSE WOULD BE

SOMETHING ADDITIONAL THAN WHAT APPEARS ON A PUBLIC WEB PAGE?
MR. STRAITE:

NO, YOUR HONOR.

TO OUR KNOWLEDGE

AND ONE THING THAT WE'VE BEEN DOING FOR THE PAST MONTH IS

WE MAY HAVE -- AND

I JUST TOLD MR. BROWN THIS THIS

WE HAVE BEEN ABLE TO UNCOVER, WE BELIEVE, IT WOULD BE ALL

OH.
THEY'RE FROM OLD NOTES AND OUTSIDE

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SOURCES AND THEY'RE FROM WAFE ACT MACHINE AND FOR ALL SORTS OF

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DIFFERENT SOURCES IDENTIFIED HERE IN COURT, BUT WE THINK WE

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HAVE ALL OF THE RELEVANT LANGUAGE THAT WE CAN ALLEGE IN GOOD

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FAITH IN THE COMPLAINT.

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THE COURT:

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MR. STRAITE:

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ABOUT THAT.

ONE IS THAT WE CAN'T CONFIRM THAT WE HAVE

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EVERYTHING.

WE'RE STILL LOOKING, AND WE'VE BEEN WORKING VERY

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HARD OVER THE PAST MONTH.

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ADDITIONAL DOCUMENTS THAT WE'RE NOT AWARE OF, AND WE DON'T KNOW

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IF WE HAVE A COMPLETE SET.

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SO WE BELIEVE IT'S HELPFUL TO HAVE ALL OF THE RELEVANT

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HISTORICAL HELP CENTER PAGES FROM THE CLASS PERIOD PRODUCED

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PRIOR TO THE DRAFTING OF THE THIRD AMENDED COMPLAINT, BUT AS AN

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ALTERNATIVE, YOUR HONOR, IN THE INTEREST OF EFFICIENCY AND

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GETTING THIS DONE, WE WOULD BE WILLING TO HAVE A STIPULATION

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HERE THAT WE BE LIMITED TO WHAT OUR INVESTIGATORS FOUND PUT

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THAT IN THE COMPLAINT SO LONG AS IN OPPOSITION FACEBOOK THEN

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DOES NOT PROVIDE ADDITIONAL HELP CENTER PAGES OR LANGUAGE THAT

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WEREN'T PRODUCED TO US BECAUSE THAT WOULD BE UNFAIR.

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IT SEEMS UNUSUAL TO SAY THE LEAST AND MAYBE BORDERING ON ABSURD

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THAT WE HAVE A CASE THAT'S NOW BOILED DOWN TO TWO CLAIMS, TWO

THE COURT:

I SEE.
THAT MAY BE THE CASE.

TWO THINGS

AND, NUMBER TWO, THERE MAY BE

DO YOU WANT TO PLAY WITH THE CARDS THAT

ARE ON THE TABLE?
MR. BROWN:

WELL, LET ME FIRST START BY SAYING THAT

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CONTRACT RELATED CLAIMS, A BREACH OF CONTRACT CLAIM AND A

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BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING,

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AND AT THIS JUNCTURE OF THE CASE WHAT THE PLAINTIFFS ARE

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ESSENTIALLY SAYING IS THAT WE'RE NOT REALLY SURE WHAT THE

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CONTRACT IS.

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FACEBOOK.

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WE'RE NOT REALLY SURE WHAT IT IS, AND WE NEED DISCOVERY AND ALL

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OF THE HELP CENTER PAGES ON THE SITE THAT EXISTED BACK IN 2011

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SO THAT WE CAN THEN LOOK AT ALL OF THEM AND SEE IF WE CAN

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SCROUNGE UP SOME PROVISION THAT WE ARE THEN GOING TO ALLEGE

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THAT WAS PART OF THE CONTRACT.

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THE COURT:

HELP US FILE OUR LAWSUIT.

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MR. BROWN:

YES.

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WAY THAT THIS OUGHT TO PROCEED.

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A CONTRACT, THEY OUGHT TO BE ABLE TO ALLEGE WHAT THE CONTRACT

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IS.

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CONTRACT CASE, THEY CAN COME TO THE COURT AND SAY HERE'S THE

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CONTRACT, ALL OF IT, AND HERE ARE THE THREE PROVISIONS IN THE

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CONTRACT THAT WE BELIEVE THE OTHER SIDE BREACHED.

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PRETTY BASIC.

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SUCCESSFULLY AMEND THE COMPLAINT TO SUCCESSFULLY ALLEGE EITHER

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OF THESE TWO CLAIMS AND IN PART FOR THAT REASON, BUT THE IDEA

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THAT WE SHOULD HAVE TO DO SOME ADDITIONAL DISCOVERY IN ORDER

WE'RE ALLEGING THAT WE HAD A CONTRACT WITH YOU,

WE'RE ALLEGING THAT YOU BREACHED THE CONTRACT, BUT

AND THAT DOESN'T SEEM TO BE THE
IF THEY BELIEVE THAT THEY HAVE

TYPICALLY WHEN YOU HAVE A PLAINTIFF FILING A BREACH OF

THAT'S

SO I DON'T THINK THAT THEY'RE GOING TO BE ABLE TO

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TO -- SO THAT THEY CAN SCROUNGE UP SOME ADDITIONAL LANGUAGE IN

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A HELP CENTER DOESN'T SEEM APPROPRIATE TO ME.

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IS THAT WE'RE WILLING TO FOREGO THAT IF EVERYBODY AGREES THAT

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OUR LAWSUIT CAN BE PLED AND GO FORWARD AND INCLUDING MOTIONS TO

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DISMISS, ET CETERA, WITH WHAT YOU HAVE NOW.

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SPRING THIS ON MR. BROWN THIS MORNING.

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THINK ABOUT IT.

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THE COURT:

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AN ANSWER HERE PRETTY QUICKLY.

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LANGUAGE, THE IMPORTANT POINT TO REMEMBER IS THAT OUR SECOND

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AMENDED COMPLAINT DID, IN FACT, QUOTE LANGUAGE FROM ONE OF THE

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HELP CENTER PAGES.

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LINKED TO THE PRIVACY POLICY IN THE CONTRACT DRAMATICALLY,

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THEMATICALLY AND THROUGH HYPERLINKS, NOT DIRECTLY BUT THROUGH

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THE HELP CENTER GENERALLY.

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IN OUR CONTRACT REPEATEDLY.

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AND THEN IN RESPONSE FACEBOOK ARGUED THAT BECAUSE WE

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DIDN'T ATTACH AN ACTUAL PRINTOUT OF THE HELP CENTER PAGE THAT

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WE WERE NOT ABLE TO PLEAD OUR CLAIM.

THE COURT:

WELL, I THOUGHT -- WHAT I HEARD YOU SAY

MR. STRAITE:

YES.

AND IN ALL FAIRNESS, I DID
HE HASN'T HAD TIME TO

OH, HE'S PRETTY SMART.

MR. STRAITE:

HE CAN RACHET UP

AND FOR THE RECORD, I'LL CONFIRM HE'S

SMARTER THAN ME SO EVEN BETTER.
TO ADDRESS MR. BROWN'S FIRST POINT ABOUT SCROUNGING UP NEW

WE ALLEGE IT WAS A PART OF THE CONTRACT AND ALLEGED IT WAS

SO THE LANGUAGE WAS QUOTED VERBATIM

SO IT'S NOT NEW LANGUAGE

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THAT WE WOULD BE ADDING.

IT'S THE DOCUMENTATION, MAYBE THE

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SCREEN SHOT OR OTHER DOCUMENTATION THAT WOULD PROVE THE

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LANGUAGE IS CORRECT.

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SINCE THEN WE HAVE SCROUNGED UP ADDITIONAL LANGUAGE THAT

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WE WILL BE ADDING TO THE THIRD AMENDED COMPLAINT AND A LOT OF

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LANGUAGE, IN FACT, FROM VARIOUS OTHER HELP CENTER PAGES.

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AGAIN, WE DO NOT BELIEVE THAT MR. BROWN IS CORRECT THAT WE HAVE

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TO SHOW THE SCREEN SHOTS OF WHAT THOSE PAGES LOOK LIKE SIX

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YEARS AGO.

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FACEBOOK PRODUCES THEIR INTERNAL DOCUMENTS AS TO WHAT THE HELP

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CENTER PAGES ACTUALLY LOOKED LIKE DURING THE CLASS PERIOD OR

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YOU ACCEPT OUR ALLEGATIONS AS TRUE FOR PURPOSES OF THE

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COMPLAINT, WHICH ORDINARILY HAPPENS AND TO PROCEED, AND THEY

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DON'T PUT IN ADDITIONAL EVIDENCE IN OPPOSITION TO OUR COMPLAINT

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THAT WAS WITHHELD FROM US FOR THE LAST THREE YEARS.

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CONTRACT AND THEY COME FORWARD AND SAY HERE'S WHAT WE'RE

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ALLEGING THE CONTRACT IS, YOU ALWAYS, AS THE DEFENDANT, HAVE

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THE ABILITY ON A MOTION TO DISMISS TO SAY TO THE COURT, WAIT A

WE,

I DON'T HAVE A TIME MACHINE, BUT I DO HAVE THE

ACTUAL LANGUAGE.
SO WE WOULD BE HAPPY WITH EITHER LANGUAGE.

THE COURT:

EITHER

SO THAT SOUNDS IMMINENTLY REASONABLE,

DOESN'T IT?
MR. BROWN:

IT'S NOT REASONABLE, AND I CAN'T AGREE

TO THAT.
SO IN ANY CASE WHERE THE PLAINTIFF IS ALLEGING A BREACH OF

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MINUTE, IF THEY'RE CONTENDING THIS IS WHAT THE CONTRACT IS,

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THEY'RE ACTUALLY NOT SHOWING YOU ALL OF IT.

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AND I THINK IT'S COMPLETELY CONSISTENT, AND I'M NOT GOING

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TO CONCEDE RIGHT NOW THAT THE HELP CENTER PAGES WERE, IN FACT,

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PART OF THE CONTRACT, BUT IF THE PLAINTIFFS ARE GOING TO COME

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IN A COMPLAINT AND ALLEGE THAT THEY ARE BUT SELECTIVELY SHOW

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HELP CENTER PAGES WHEN THERE MAY BE OTHER HELP CENTER PAGES

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THAT BEAR ON THE INTERPRETATION OF THOSE OR CONTRADICTED OR

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SUPPLEMENTED IN SOME MEANINGFUL WAY, WE WOULD RESERVE THE RIGHT

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TO COME TO THE COURT AND SEEK JUDICIAL NOTICE OR INCORPORATION

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BY REFERENCE UNDER THAT DOCTRINE WHICH IS APPROVED BY THE NINTH

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CIRCUIT.

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SO I CAN'T BE IN THE POSITION OF SAYING THAT WE WILL

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HIGHER ON THE HAND ON A MOTION TO DISMISS, AND WE CAN ONLY HAVE

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A DEBATE ABOUT THE HELP CENTER PAGES THAT THEY CHOOSE TO PUT

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FORWARD.

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IT REALLY BE THAT DIFFICULT TO OBTAIN THOSE HISTORIC PAGES

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DURING THE CLASS PERIOD IF THAT'S REALLY THE FOCUS OF THEIR

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DISCOVERY, IF YOU WILL, REQUEST?

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MR. BROWN:

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IMAGINE.

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OF WEB PAGES, AND IT'S NOT AS THOUGH YOU CAN, WHEN YOU'RE GOING

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BACK AND PULLING THINGS FROM THE 2010 OR 2011 PERIOD, IT'S NOT

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AS THOUGH WE CAN JUST GO AND THOSE ARE SITTING IN A LITTLE

THE COURT:

SURE, I CAN APPRECIATE THAT.

BUT WOULD

IT MAY VERY WELL BE HARDER THAN YOU

I MEAN, THE HELP CENTER IS A PRETTY BIG AND VAST SET

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VAULT SOMEWHERE AND WE CAN JUST, YOU KNOW, TAKE A QUICK COPY OF

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THEM.

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AND PULL HISTORICAL VERSIONS OF WEB PAGES THAT ARE PROBABLY NO

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LONGER THERE THIS MANY YEARS LATER.

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SHOULD BE RELITIGATING A MOTION TO COMPEL WHICH WAS TERMINATED

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AND SUPPOSED TO BE RE-FILED, BUT WHAT WE OFFERED DURING THE

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MEET AND CONFER PERIOD WAY BACK WHEN IS TO SAY IF YOU CAN POINT

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TO PARTICULAR HELP CENTER PAGES THAT YOU CONTEND ARE RELEVANT

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AND WE'LL RESERVE OUR RIGHTS TO SAY THAT THEY ARE NOT RELEVANT,

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BUT IF YOU CAN POINT TO CERTAIN ONES THEN, SURE, WE'LL GO GET

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THEM FOR YOU.

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JUST PRODUCE EVERY SINGLE PAGE IN THE HELP CENTER, AND IT'S A

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HELP CENTER.

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HAS NO BEARING WHATSOEVER ON THEIR CLAIM WHICH IS THAT WE

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IMPROPERLY COLLECTED INTERNET BROWSING HISTORY OF THESE NAMED

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PLAINTIFFS.

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SO I DO HAVE A PROBLEM WITH GOING AND JUST SORT OF

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GENERALLY COLLECTING HELP CENTER PAGES WHEN WE KNOW VERY WELL

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THAT THE VAST MAJORITY OF THEM DON'T HAVE ANY BEARING AT ALL ON

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THEIR ALLEGATIONS.

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THE COURT:

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BE MUCH MORE DISCRETE, THOUGH?

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IT'S A LITTLE BIT MORE COMPLICATED THAN THAT TO GO BACK

AND SO WHAT WE HAVE ALWAYS OFFERED, AND I DON'T THINK WE

BUT INSTEAD, THEY STUCK TO THE POSITION THAT WE SHOULD

THEY'RE ALL MANNER OF INFORMATION IN THERE THAT

WELL, IT SOUNDS LIKE YOUR SEARCH WOULD

MR. STRAITE:

I BELIEVE THAT'S THE CASE, YOUR HONOR.

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AND, IN FACT, IF IT WOULD BE HELPFUL TO REDUCE THE BURDEN ON

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DEFENDANT, WE COULD IDENTIFY THE LANGUAGE THAT WE'LL BE PUTTING

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INTO THE THIRD AMENDED COMPLAINT, INCLUDING THE OLD DEAD URL'S

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THAT WERE USED BACK IN 2011.

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TEN HELP CENTER PAGES.

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JUST A WHILE AGO.

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SEVERAL YEARS AGO IN 2011 JUDGE KOH DECIDED A VERY SIMILAR

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QUESTION IN THE CASE OF FRALEY VERSUS FACEBOOK.

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IS 830 F. SUPP. 2D 785.

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QUOTED -- I'M SORRY, A FACEBOOK HELP CENTER PAGE.

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FACEBOOK PUT ADDITIONAL HELP CENTER PAGES ATTACHED TO A REQUEST

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FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS.

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ADDITIONAL HELP CENTER PAGES SUDDENLY BECAME RELEVANT IN

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OPPOSITION TO THE COMPLAINT AND IN SUPPORT OF THEIR MOTION TO

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DISMISS.

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STANDARDS FOR JUDICIAL NOTICE.

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TO HAVE TO HAVE ALL OF THIS ARGUMENT.

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THAT MANY OF THE HELP CENTER PAGES SHE WOULD NOT JUDICIALLY

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NOTICE.

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ON THE QUESTION OF JUDICIAL NOTICE.

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EFFICIENT SIMPLY TO RESOLVE IT HERE WE WOULD ARGUE.

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WE SUSPECT IT WILL BE FEWER THAN

SPEAKING TO THE EFFICIENCY, WE TALKED ABOUT THE UNFAIRNESS
WE'RE NOT DISCUSSING THIS IN A VACUUM.

THIS IS FROM 2011.

THE CITATION

THE PLAINTIFFS
IN RESPONSE

AND JUDGE KOH HAD TO GO THROUGH A LENGTHY OPINION ABOUT
IT WAS INCREDIBLY INEFFICIENT
SHE EVENTUALLY RULED

SOME CAME IN AND SOME DID NOT.

THE COURT:

THANK YOU.

THERE WAS A BRIEFING

IT WOULD BE FAR MORE

IF YOU CAN IDENTIFY,

MR. BROWN, A CERTAIN PAGES' LANGUAGE AND PAGES, IT SEEMS TO ME

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THAT THAT WOULD ASSIST YOUR CLIENT AT LEAST IN LOCATING THESE.

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APPARENT, IS THAT I'M TRYING TO FASHION BEARING F.R.C.P. 1 IN

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MIND ABOUT THE EFFICIENT MANAGEMENT AND PROGRESS OF THE CASE

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AND A CASE THAT IS FOUR OR FIVE YEARS OLD AND MAYBE THE WORD

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"EFFICIENT" SHOULDN'T BE IN THE SAME SENTENCE, BUT I THINK

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WE'RE AT A PLACE NOW WHERE THERE IS -- THIS CASE HAS BEEN

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REFINED.

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AS YOU POINT OUT, MR. BROWN, IT'S JUST A VERY, VERY FINITE,

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DISCRETE QUESTION THAT'S HERE.

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QUESTION OF SORTS.

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TO BE SUCH THAT YOU CAN GET RESOLUTION ONE WAY OR THE OTHER AND

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GET SOME ADDITIONAL FOCUS.

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SCHEDULE FOR FILING, AS I TOLD YOU, AND I'D LIKE TO SEE IF YOU

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CAN ACCOMPLISH THIS DISCOVERY ISSUE.

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I SIT AND, PARDON ME, I'M NOT ENGULFED IN THE LITIGATION LIKE

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YOU ARE, BUT IT SEEMS LIKE IF YOU WERE TO IDENTIFY THESE

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DISCRETE PAGES LANGUAGE THAT THE DIFFICULTY THAT FACEBOOK WOULD

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HAVE IN LOCATING THAT DISCRETE INFORMATION WOULD PROBABLY BE

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LESS TIME THAN IT WOULD TAKE TO FILE MOTIONS IN FRONT OF GOOD

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JUDGE COUSINS AND ARGUE THOSE MOTIONS AND BE FAR MORE COST

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EFFECTIVE IF WE CAN JUST NARROW THAT DOWN HERE.

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WHAT I'M LOOKING AT.

WHAT I'M TRYING TO DO HERE, AND I THINK -- I HOPE IT'S

IT'S GONE THROUGH MOTION PRACTICE.

SO NOW THERE'S --

IT'S A BREACH OF CONTRACT

I'D LIKE TO ASSIST YOU IN GETTING YOU WHERE YOU BOTH NEED

IT SEEMS TO ME THAT WHAT I WANT TO DO IS TO GIVE YOU A

IT SOUNDS LIKE FROM WHERE

UNITED STATES COURT REPORTERS

THAT'S KIND OF

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WHILE YOU GET YOUR PENCILS OUT, I'LL TELL YOU THE DATES

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THAT I AM THINKING ABOUT SUCH THAT IT WILL GUIDE YOUR THOUGHTS

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ABOUT THIS DISCOVERY ISSUE.

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FILED ON NO LATER THAN FRIDAY, AUGUST 25TH; ANY MOTION TO

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DISMISS WOULD THEN BE FILED ON FRIDAY, SEPTEMBER 8TH;

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OPPOSITION TO THAT WOULD BE FILED FRIDAY, OCTOBER 13TH; A REPLY

10:13AM

8

WOULD BE FILED FRIDAY, OCTOBER 27TH, AND I'LL RESERVE A MOTION

10:13AM

9

DATE, A HEARING DATE, EXCUSE ME, FOR THURSDAY, NOVEMBER 16TH,

10:13AM

10

10:13AM

11

10:13AM

12

NOW, AND I'M HOPEFUL THAT THIS ISSUE REGARDING PAGES THAT YOU

10:13AM

13

NEED AND YOUR REQUEST FROM FACEBOOK CAN BE RESOLVED SUCH THAT

10:13AM

14

YOU CAN MEET THIS DEADLINE.

10:13AM

15

10:13AM

16

REASONABLE PERSON, AND HE'S A SKILLED LAWYER, AND HE'LL DO HIS

10:13AM

17

BEST, OF COURSE, TO PROTECT HIS CLIENT, BUT I BELIEVE WE CAN

10:13AM

18

GET THIS DONE IN GOOD FAITH.

10:13AM

19

MR. BROWN:

10:14AM

20

HAVE MY CALENDAR IN FRONT OF ME.

10:14AM

21

COMPLAINT WOULD BE FILED AUGUST 25TH AND THEN THE MOTION WOULD

10:14AM

22

BE DUE IS THAT --

10:14AM

23

10:14AM

24

10:14AM

25

WHAT I'D LIKE TO DO IS TO HAVE THE THIRD AMENDED COMPLAINT

THURSDAY, NOVEMBER 16TH AT 9:00 A.M.
THAT'S THE SCHEDULE THAT I'D LIKE TO IMPOSE ON THE CASE

MR. STRAITE:

I'M CONFIDENT WE CAN.

MATT IS A VERY

SO IF I'M LOOKING AT THE DATES, I DON'T
SO YOU'RE SAYING THAT THE

THE COURT:

THE COMPLAINT FILED AUGUST 25TH, THAT'S

MR. BROWN:

AND THEN WE WOULD HAVE ABOUT, WHAT,

RIGHT.

UNITED STATES COURT REPORTERS

13

10:14AM

1

14 DAYS TO MOVE TO DISMISS?

10:14AM

2

THE COURT:

RIGHT.

10:14AM

3

MR. BROWN:

OKAY.

10:14AM

4

THING THAT I WOULD WANT TO BRING UP WITH THE COURT IF THAT'S

10:14AM

5

WHERE THE COURT WAS LEANING AT, YOU KNOW, ON THE DISCOVERY OF

10:14AM

6

THE HELP CENTER PAGES.

10:14AM

7

SERIOUS CONCERN TO FACEBOOK IS A BROADER DISCOVERY INITIATIVE.

10:14AM

8

I KNOW THAT WE HAVE THESE EXISTING ISSUES THAT WERE TEED UP IN

10:14AM

9

THE MOTION TO COMPEL AND YOU RULED THAT THOSE NEED TO BE

10:14AM

10

REFILED WITH JUDGE COUSINS, BUT DURING OUR MEET AND CONFER LAST

10:14AM

11

WEEK AND IN PREPARATION FOR THE CMC I HEARD SUGGESTIONS THAT

10:14AM

12

THERE COULD BE, YOU KNOW, ADDITIONAL DISCOVERY NOW WAGED

10:14AM

13

INCLUDING NOTICING DEPOSITIONS OF FACEBOOK EMPLOYEES AND THE

10:15AM

14

LIKE, AND THAT JUST DOESN'T SEEM RIGHT IN THE POSTURE WE ARE

10:15AM

15

IN.

10:15AM

16

10:15AM

17

THOUGHT INITIALLY WAS WE DON'T NEED ANY DEPOSITIONS.

10:15AM

18

THINK YOU NEED ANY DEPOSITION TO PROCEED ON THIS SCHEDULE AND

10:15AM

19

MAYBE YOU SHOULD TELL ME IF I'M WRONG.

10:15AM

20

10:15AM

21

WE'RE NOT PREPARED TO TAKE DEPOSITIONS FOR A NUMBER OF REASONS

10:15AM

22

FOR THE NEXT COUPLE OF MONTHS.

10:15AM

23

THE MOST IMPORTANT REASON, WHICH WE'LL ADDRESS WITH

10:15AM

24

JUDGE COUSINS, IS THAT 99.9 PERCENT OF THE DOCUMENT PRODUCTION

10:15AM

25

IS DESIGNATED ATTORNEYS EYES ONLY.

THE COURT:

I GUESS THE -- YOU KNOW, THE ONE

YOU KNOW, ONE THING THAT IS OF VERY

AND LET ME -- I THOUGHT ABOUT THAT.

MR. STRAITE:

MY

I DON'T

NO, YOUR HONOR, YOU'RE EXACTLY RIGHT.

AND UNDER THE COURT'S

UNITED STATES COURT REPORTERS

14

10:15AM

1

CONFIDENTIALITY ORDER I'M NOT ALLOWED TO SHOW THOSE DOCUMENTS

10:15AM

2

TO ANY DEPONENT UNLESS THE DEPONENT WROTE THE DOCUMENT OR

10:15AM

3

OTHERWISE HAS KNOWLEDGE OF IT.

10:15AM

4

DEPOSITIONS PERIOD AS A PRACTICAL MATTER.

10:15AM

5

JUDGE COUSINS RESOLVES THAT -- WE CAN'T DO DEPOSITIONS.

10:15AM

6

10:15AM

7

DISCOVERY FROM THREE INDIVIDUALS AND WE'RE PROPOSING MORE

10:15AM

8

DOCUMENTS FROM ANOTHER 20 INDIVIDUALS WHICH WERE SUGGESTED BY

10:15AM

9

THE CURRENT DOCUMENT PRODUCTION, WE BELIEVE IT WOULD BE UNWISE

10:16AM

10

TO START DEPOSITIONS UNTIL WE GET ADDITIONAL DOCUMENTS ANYWAY.

10:16AM

11

I WOULD BE SHOCKED IF WE WERE IN A POSITION TO TAKE THE FIRST

10:16AM

12

DEPOSITION BEFORE ORAL ARGUMENT ON AUGUST 16TH.

10:16AM

13

YOUR CONCERNS AND THE PRACTICAL POSTURE OF THE CASE COINCIDE.

10:16AM

14

10:16AM

15

10:16AM

16

10:16AM

17

10:16AM

18

BUT I GUESS BEYOND THAT, AND I UNDERSTAND THAT YOUR HONOR

10:16AM

19

HAS A GENERAL PHILOSOPHY, I THINK, THAT DISCOVERY SHOULDN'T BE

10:16AM

20

STAYED FOR LONG PERIODS OF TIME.

10:16AM

21

10:16AM

22

HAD TWO COMPLAINTS DISMISSED, AND WE HAVE 9 OF THE 11 CLAIMS

10:16AM

23

DISMISSED WITH PREJUDICE, AND WE'RE DOWN TO TWO CLAIMS, AND I'M

10:16AM

24

NOT SURE THAT THEY'LL BE ABLE TO REPLEAD THEM SUCCESSFULLY.

10:16AM

25

THAT MEANS THAT I CAN'T TAKE
SO UNTIL

AND, SECOND OF ALL, BECAUSE WE ONLY HAVE DOCUMENT

THE COURT:

SO I THINK

I DIDN'T ANTICIPATE THERE WOULD BE ANY

DEPOSITION PRACTICE AT ALL.
MR. BROWN:

I DIDN'T EITHER UNTIL THE MEET AND

CONFER LAST WEEK.

BUT, YOU KNOW, GIVEN THE POSTURE THAT WE'RE IN HERE, WE'VE

I WOULD LIKE TO BE ABLE TO AT LEAST HIT THE PAUSE BUTTON

UNITED STATES COURT REPORTERS

15

10:16AM

1

ON BRIEFING ON THE MOTION TO COMPEL AND DOCUMENT DISCOVERY AS

10:16AM

2

WELL, AND WE'RE ONLY TALKING ABOUT NOVEMBER 16TH FOR THE

10:16AM

3

HEARING, AND YOU'RE OBVIOUSLY SETTING THIS FOR A MORE EXPEDITED

10:17AM

4

SCHEDULE THAN IS OFTEN THE CASE.

10:17AM

5

SO I ASK THAT WITH HUMILITY BECAUSE I UNDERSTAND YOUR

10:17AM

6

GENERAL PHILOSOPHY, BUT IT JUST SEEMS TO BE APPROPRIATE IN THE

10:17AM

7

PARTICULAR PROCEDURAL POSTURE THAT WE'RE IN NOW.

10:17AM

8

10:17AM

9

10:17AM

10

IF IT WOULD HELP, YOUR HONOR, WE CAN AGREE NO REQUEST FOR

10:17AM

11

ADMISSIONS, NO INTERROGATORIES, NO SCHEDULED DEPOSITIONS, NO

10:17AM

12

NOTICES FOR DEPOSITION UNTIL AFTER NOVEMBER 16TH.

10:17AM

13

FOCUS ON DOCUMENTS BETWEEN NOW AND THEN, THAT'S A COMPROMISE

10:17AM

14

THAT WE'RE WILLING TO OFFER.

10:17AM

15

MR. BROWN:

WELL --

10:17AM

16

THE COURT:

THAT SOUNDS PRETTY GENEROUS.

10:17AM

17

MR. BROWN:

WELL, IF, IF THEY CAN'T, IF THEY

10:17AM

18

10:17AM

19

THE COURT:

YOU'RE OVERWHELMED BY THE GENEROSITY.

10:17AM

20

MR. BROWN:

REALLY, I'M ALMOST LEFT SPEECHLESS

10:17AM

21

BECAUSE OF THE 20 EXTRA CUSTODIANS THAT THEY WANT US TO COLLECT

10:17AM

22

DOCUMENTS FROM.

10:17AM

23

10:17AM

24

ATTORNEY'S FEES THAT COULD BE IN UPWARDS OF SIX FIGURES, IF

10:17AM

25

THEY REALLY FOLLOW THROUGH ON THEIR REQUEST FOR US TO COLLECT

MR. STRAITE:

YOUR HONOR, OF COURSE GIVEN THE

PROCEDURAL POSTURE IT'S IMPORTANT FOR US TO BE REASONABLE AND

IF WE JUST

CAN'T --

I MEAN, THAT'S THE REALITY HERE.

WE'RE TALKING ABOUT

UNITED STATES COURT REPORTERS

16

10:18AM

1

DOCUMENTS, AND MAYBE I'M GETTING THE NUMBER 20 WRONG, I CAN'T

10:18AM

2

REMEMBER WHAT IT IS ANYMORE, BUT IT'S A SIGNIFICANT NUMBER OF

10:18AM

3

ADDITIONAL CUSTODIANS, AND WHEN YOU'RE IN A SITUATION LIKE THIS

10:18AM

4

WHEN IT'S VERY, VERY POSSIBLE THAT THE CASE MAY NOT BE GOING

10:18AM

5

FORWARD BEYOND THE END OF THIS YEAR, IT JUST SEEMS TO ME THAT

10:18AM

6

IT MAKES SENSE AT THIS JUNCTURE TO HIT THE PAUSE BUTTON.

10:18AM

7

10:18AM

8

TWO CLAIMS SUCCESSFULLY AND IT GETS BEYOND OUR MOTION TO

10:18AM

9

DISMISS, THEN THAT'S A DIFFERENT STORY AT THAT POINT.

10:18AM

10

10:18AM

11

AGAIN FOR A THIRD TIME FOR A MOTION TO STAY PENDING A RULING ON

10:18AM

12

A MOTION TO DISMISS OR I RECALL OBVIOUSLY JUST BEING DENIED I

10:18AM

13

WOULD SIMPLY SAY EVERYTHING WE SAID THERE WE SAY AGAIN, AND

10:18AM

14

GIVEN OUR NEW OFFER TO HAVE LIMITED DISCOVERY JUST OF

10:18AM

15

DOCUMENTS, AND WE CAN EVEN HAVE DISCUSSIONS WITH JUDGE COUSINS

10:18AM

16

ABOUT NARROWING THE SCOPE OF CUSTODIANS EVEN FURTHER THAN THE

10:18AM

17

20 OR SO THAT WE IDENTIFIED AS RELEVANT, THAT'S SOMETHING THAT

10:18AM

18

JUDGE COUSINS WILL DECIDE IF IT'S APPROPRIATE.

10:18AM

19

COURSE, WOULD OPPOSE THIS FOURTH REQUESTED STAY OF DISCOVERY

10:19AM

20

PENDING THE RULING ON THE MOTION TO DISMISS.

10:19AM

21

10:19AM

22

10:19AM

23

MR. STRAITE:

10:19AM

24

THE COURT:

10:19AM

25

IF IT TURNS OUT THAT THEY'RE ABLE TO PLEAD ONE OF THESE

MR. STRAITE:

THE COURT:

IT SOUNDS LIKE COUNSEL IS ARGUING

BUT WE, OF

WELL, I APPRECIATE MR. BROWN EXPRESSING

THE CONCERNS THAT HIS CLIENT AND THE COSTS -YES.

-- THAT HIS CLIENTS ARE FACING.

AND IN

HIS LENS THIS CASE IS COMING TO AT LEAST A CLOSURE AT SOME

UNITED STATES COURT REPORTERS

17

10:19AM

1

POINT IN TIME.

THAT'S HIS VIEW OF IT.

10:19AM

2

10:19AM

3

10:19AM

4

THE COURT:

10:19AM

5

MR. STRAITE:

10:19AM

6

WE HAVE ADDITIONAL HELP CENTER PAGES THAT WE'LL BE DISCUSSING.

10:19AM

7

THE REAL SALIENT FACT NOW IS THE DATE THAT THIS CASE WAS FILED,

10:19AM

8

THE CLASS PERIOD THAT WE HAVE ALLEGED.

10:19AM

9

FIVE, SIX, SOMETIMES SEVEN YEARS BEFORE FOR THESE DOCUMENTS.

10:19AM

10

FURTHER DELAY IS INCREDIBLY PREJUDICIAL.

10:19AM

11

HAPPENS TO DOCUMENTS AND IF THEY GO STALE, AND WE DON'T KNOW IF

10:19AM

12

STANDARDS CHANGE.

10:19AM

13

10:19AM

14

DISKS, AND WE HAVE TO CONVERT ON FLOPPY DISKS.

10:19AM

15

DELAY ACTUALLY INCREASES THE COST OF DISCOVERY, THE HARDER IT

10:20AM

16

BECOMES TO FIND THE DOCUMENTS AND PRODUCE THEM AND IN

10:20AM

17

APPROPRIATE FORMAT, WE BELIEVE THAT THE AGE OF THE CASE

10:20AM

18

ACTUALLY MITIGATES IN FAVOR OF MORE OF A RAPID PRODUCTION AND

10:20AM

19

NOT A LESS RAPID PRODUCTION.

10:20AM

20

10:20AM

21

THE PLAINTIFFS HAVE A DIFFERENT VIEW OF THE CASE THAN THE

10:20AM

22

DEFENDANTS, OF COURSE, AND THEY FEEL IT'S A ROBUST CASE AND

10:20AM

23

NOTWITHSTANDING THE SIZE OF THE CASE NOW AND HOW IT APPEARS

10:20AM

24

TRIMMED DOWN.

10:20AM

25

MR. STRAITE:

AND I WOULD SAY EXACTLY THE OPPOSITE

THAT NOT ONLY -I UNDERSTAND.
-- BECAUSE NOW WE HAVE FOCUS BECAUSE

WE'RE GOING BACK NOW

WE DON'T KNOW WHAT

AND REMEMBER IN THE OLD DAYS WE HAD DOCUMENTS ON FLOPPY

THE COURT:

OKAY.

THANK YOU.

THE FURTHER

WHICH IS TO SAY THAT

I JUST DON'T THINK THAT IT'S APPROPRIATE TO HIT THE PAUSE

UNITED STATES COURT REPORTERS

18

10:20AM

1

BUTTON, PARDON ME, MR. BROWN.

I'D LIKE YOU -- I HEAR THE

10:20AM

2

SPIRIT OF COOPERATION HERE THAT THE PLAINTIFFS HAVE SAID, YES,

10:20AM

3

OUR CASE IS REDUCED.

10:20AM

4

AND ACCORDINGLY OUR REQUEST FOR THE HELP CENTER LANGUAGE THAT

10:20AM

5

MIGHT HELP IN SOME WAY THE PLAINTIFFS IDENTIFY A BREACH IS

10:20AM

6

IMPORTANT TO THEIR CASE AND WITH THE LIMITATIONS EXPRESSED HERE

10:20AM

7

RECOGNIZING THAT I DON'T WANT THIS TO INVOLVE INTERROGATORIES,

10:21AM

8

DEPOSITIONS, AND PRODUCTIONS.

10:21AM

9

10:21AM

10

THAT THEY MIGHT ASSIST WHAT YOU ALREADY HAVE, AND IT SOUNDS

10:21AM

11

LIKE YOU HAVE, WHAT I'VE HEARD YOU SAY, WE PROBABLY HAVE ENOUGH

10:21AM

12

TODAY TO GO FORWARD WITH THE COMPLAINT.

10:21AM

13

MR. STRAITE:

10:21AM

14

THE COURT:

10:21AM

15

10:21AM

16

SO I'M NOT GOING TO HIT THE PAUSE BUTTON RIGHT NOW.

10:21AM

17

THINK WE'RE PERILOUSLY CLOSE TO GETTING SOME TYPE OF FINALITY

10:21AM

18

ON THE CASE ONE WAY OR ANOTHER, THAT IS, DEPENDING ON HOW THE

10:21AM

19

MOTIONS GO AND IT WILL EITHER THRIVE OR IT WON'T, I SUPPOSE,

10:21AM

20

AND WE'RE CLOSE TO THAT DATE.

10:21AM

21

10:21AM

22

TALK ABOUT ADR, AND THIS IS ON ECF PAGE 3 AT LINE 1.

10:22AM

23

THAT BE ENGAGED AT ALL NOW?

10:22AM

24

COMMENTS ON THAT?

10:22AM

25

WE HAVE THIS DISCRETE ISSUE ABOUT BREACH

IF YOU CAN JUST GET AND IDENTIFY THOSE PAGES RECOGNIZING

CLIENT'S SAKE.

YES, YOUR HONOR.

YES.

BUT YOU WANT TO CONFIRM IT FOR YOUR

I APPRECIATE THAT.

SO I'D LIKE TO KEEP THESE DATES THEN.

MR. STRAITE:

I

LET ME ASK YOU, YOU
SHOULD

WHAT IS YOUR STATUS ON THAT, YOUR

THANK YOU, YOUR HONOR.

UNITED STATES COURT REPORTERS

WE HAVE NEVER

19

10:22AM

1

HAD A MEDIATION.

WE'VE NEVER HAD ANY ASSISTED DISCUSSIONS, NO

10:22AM

2

NEUTRALS, NO NOTHING.

10:22AM

3

10:22AM

4

COMPLAINT, ONE OF TWO THINGS WILL HAPPEN.

10:22AM

5

SUCCEED ON ONE OR TWO OF THE CLAIMS AND WE'LL GO TO TRIAL, OR

10:22AM

6

WE WON'T SUCCEED AND WE GO TO THE NINTH CIRCUIT.

10:22AM

7

10:22AM

8

TIME TO HAVE A FORMAL MEDIATION, AND WE WOULD BE WILLING TO

10:22AM

9

SPLIT THE COST 50/50.

10:22AM

10

A COMPLETE WASTE OF TIME, WE WILL ACCEPT THAT JUDGMENT, BUT WE

10:22AM

11

PUT FORWARD HERE FORMALLY WE THINK IT'S A GOOD IDEA.

10:22AM

12

THE COURT:

MR. BROWN.

10:22AM

13

MR. BROWN:

RIGHT.

10:22AM

14

MANAGEMENT STATEMENT, BUT TO GIVE A LITTLE MORE COLOR TO IT,

10:22AM

15

WE'RE AT A POINT WHERE WE REALLY DON'T THINK THAT THEY'RE GOING

10:22AM

16

TO BE ABLE TO REPLEAD.

10:23AM

17

WE'VE NEVER THOUGHT THAT THE COMPLAINTS THAT THEY PUT

10:23AM

18

FORWARD HAD SUFFICIENT FACTUAL ALLEGATIONS TO SUPPORT THE LEGAL

10:23AM

19

THEORIES THAT THEY WERE FORWARDING, AND IT'S NOW BEEN WHITTLED

10:23AM

20

DOWN TO THESE TWO CLAIMS.

10:23AM

21

THE LAST ORDER, OBVIOUSLY THEY'VE BEEN GIVEN LEAVE TO AMEND, I

10:23AM

22

JUST DON'T THINK THAT THEY'RE GOING TO BE ABLE TO DO IT.

10:23AM

23

THEY'RE STILL APPARENTLY RELYING ON THIS KIND OF LAYERED

10:23AM

24

APPROACH AS TO WHAT THEY CALL IT TO WHAT THE CONTRACT CONSISTS

10:23AM

25

OF.

WE BELIEVE NOW THAT WE'RE ON THE THIRD AND FINAL AMENDED
EITHER WE WILL

GIVEN THAT POSTURE, WE BELIEVE NOW MAY BE AN APPROPRIATE

IF IN GOOD FAITH FACEBOOK BELIEVES IT'S

WELL, AS WE SAID IN THE CASE

AND, FRANKLY, GIVEN THE REASONING OF

UNITED STATES COURT REPORTERS

20

10:23AM

1

AND SO IN LIGHT OF THAT, WE JUST DON'T THINK THAT IT'S

10:23AM

2

WORTH THE TIME AND EXPENSE RIGHT NOW TO ENGAGE IN ADR, AND

10:23AM

3

WE'RE GOING TO BE DOING BRIEFING ON A MOTION TO DISMISS AND THE

10:23AM

4

CASE MAY NOT LIVE ON PAST NOVEMBER.

10:23AM

5

10:23AM

6

COLOR, THE LAYERED APPROACH TO THE FACEBOOK CONTRACT, THE TERMS

10:23AM

7

OF USE AND THE PRIVACY POLICY AND THE HELP CENTER PAGES, THAT

10:23AM

8

TERM "LAYERED APPROACH" IS NOT SOMETHING THAT WE'VE INVENTED.

10:23AM

9

FACEBOOK DESCRIBED ITS CONTRACT THAT WAY TO CONGRESS AND TO THE

10:23AM

10

10:23AM

11

10:23AM

12

USED TO DESCRIBE THE APPROACH THAT WAS IN EFFECT DURING THE

10:24AM

13

CLASS PERIOD, LAYERED APPROACH IS WHAT FACEBOOK TOLD THE

10:24AM

14

GOVERNMENT THAT THEY USED.

10:24AM

15

10:24AM

16

PER YOUR OBSERVATION, MR. STRAITE, FACEBOOK IS NOT AT THIS

10:24AM

17

POINT INTERESTED IN PURSUING FORMAL ADR.

10:24AM

18

LIKE YOU WOULD RATHER FOCUS, MR. BROWN, YOUR EFFORTS ON THIS

10:24AM

19

MOTION PRACTICE AND ACCORDING TO THE SCHEDULE THAT I'VE JUST

10:24AM

20

PROVIDED YOU.

10:24AM

21

MR. BROWN:

THAT'S RIGHT.

10:24AM

22

THE COURT:

SO THAT'S WHAT IT WILL BE.

10:24AM

23

GIVEN YOU THE DATES.

10:24AM

24

VIEWS ABOUT THE -- THIS DISCOVERY ISSUE AND MY SENSE IS THAT --

10:24AM

25

AND I APPRECIATE YOUR -- PLAINTIFFS' WILLINGNESS TO WORK WITH

MR. STRAITE:

AND TO FURTHER PUT MORE COLOR ONTO THE

FEDERAL TRADE COMMISSION.
GRANTED THAT PHRASE WAS USED AFTER OUR CLASS PERIOD BUT

THE COURT:

OKAY.

WELL, THANK YOU.

IT SOUNDS LIKE

RATHER, IT SOUNDS

OKAY.

I'VE

I'VE TALKED TO YOU ABOUT AT LEAST MY

UNITED STATES COURT REPORTERS

21

10:24AM

1

FACEBOOK ON LIMITING YOUR REQUESTS AND SCOPE, AND I HOPE THAT

10:24AM

2

YOUR CLIENTS -- I HOPE THAT YOU CAN MEET AND CONFER SUCH THAT,

10:24AM

3

MR. BROWN, YOU CAN TALK TO YOUR CLIENTS ABOUT PRODUCING THESE,

10:24AM

4

WHATEVER IT IS, THE PAGES AND THAT NEED TO BE DONE.

10:25AM

5

HOPEFUL THAT IT'S NOT VOLUMINOUS AND IT'S NOT GOING TO REQUIRE

10:25AM

6

HUNDREDS OF HOURS OF ATTORNEY TIME.

10:25AM

7

10:25AM

8

MISSPOKEN WHEN I THOUGHT ABOUT HITTING THE PAUSE BUTTON.

10:25AM

9

ALREADY ASSUMED THAT YOU HAD RULED ON THE HELP CENTER PAGE

10:25AM

10

10:25AM

11

10:25AM

12

LANGUAGE FROM THE HELP CENTER PAGES THAT THEY WANT TO INCLUDE

10:25AM

13

IN THEIR COMPLAINT, AND WE WILL SEARCH FOR HISTORICAL VERSIONS

10:25AM

14

OF THOSE PAGES.

10:25AM

15

10:25AM

16

THE DISCOVERY BURDENS BEYOND THAT.

10:25AM

17

LITERALLY GOING TO GET NEW REQUESTS FOR PRODUCTION PROPOUNDED

10:25AM

18

TO US?

10:25AM

19

BEFORE JUDGE COUSINS BETWEEN NOW AND NOVEMBER 16TH WHEN IT

10:25AM

20

SEEMS LIKE IT'S REALLY NOT THAT MUCH OF AN IMPOSITION ON

10:25AM

21

PLAINTIFFS UNTIL WE HOLD OFF --

10:25AM

22

THE COURT:

10:26AM

23

MR. STRAITE:

10:26AM

24

CERTAINLY WILLING NOT TO PROPOUND ANY INTERROGATORIES, NOT A

10:26AM

25

SINGLE ONE.

MR. BROWN:

AND I'M

JUST TO CLARIFY THAT, AND I MAY HAVE
I HAD

ISSUE.
SO MY UNDERSTANDING IS THAT THEY WILL VERY QUICKLY GET US

I GUESS WHAT I WAS TRYING TO ADDRESS IS JUST, YOU KNOW,
ARE WE -- YOU KNOW, ARE WE

ARE WE REALLY GOING THROUGH A MOTION TO COMPEL PRACTICE

MR. STRAITE, DO YOU WANT TO CLARIFY.
AS WE DISCUSSED EARLIER, WE'RE

WE CAN ADDRESS THE HELP CENTER PAGES IN ADVANCE OF

UNITED STATES COURT REPORTERS

22

10:26AM

1

THE THIRD AMENDED COMPLAINT IN TELEPHONE CALLS AND LETTERS.

WE

10:26AM

2

DON'T NEED DISCOVERY, FORMAL DISCOVERY THERE.

10:26AM

3

SERVE ANY REQUESTS FOR ADMISSIONS, AND WE ALSO WILL NOT NOTICE

10:26AM

4

ANY DEPOSITIONS UNTIL AFTER THE HEARING ON THE 16TH.

10:26AM

5

10:26AM

6

REMAINS TO BE SEEN.

10:26AM

7

AN UNDERSTANDING THAT THE CURRENT DOCUMENT REQUESTS ARE

10:26AM

8

INTERPRETED A CERTAIN WAY OR THERE'S SOME AMBIGUITIES BECAUSE

10:26AM

9

OF MY INARTFUL DRAFTING OF YEARS AGO THAT WE WOULD LIKE SOME

10:26AM

10

UNDERSTANDINGS ON HOW SOME WORDS ARE INTERPRETED.

10:26AM

11

COULD PROBABLY AVOID A SECOND ROUND OF DOCUMENT REQUESTS UNTIL

10:26AM

12

NOVEMBER 16TH IF WE CAN HAVE THOSE CONVERSATIONS, BUT I THINK

10:26AM

13

IT'S LIKELY THAT WE'LL BE ABLE TO AVOID A MOTION TO COMPEL

10:26AM

14

PRIOR TO NOVEMBER 16TH SIMPLY BECAUSE ONLY THREE CUSTODIANS

10:26AM

15

HAVE BEEN SEARCHED.

10:26AM

16

10:26AM

17

IT WILL SAY JOHN SMITH JUST BY WAY OF ILLUSTRATION.

10:27AM

18

IS A PERSON WHO KNOWS ABOUT THESE DOCUMENTS BEST, BUT THEN JOHN

10:27AM

19

SMITH'S DOCUMENTS WEREN'T SEARCHED.

10:27AM

20

10:27AM

21

LAST YEAR, BUT, OF COURSE, CRAFTING IT AROUND THE SURVIVING

10:27AM

22

CLAIMS AND CRAFTING IT AROUND JUDGE COUSINS'S PRACTICES, WE

10:27AM

23

WILL PROPOSE GETTING THAT ON FILE SOONER THAN LATER SIMPLY

10:27AM

24

BECAUSE THERE ARE SO MANY IMPORTANT ISSUES, AND WE WOULD ALSO

10:27AM

25

LIKE TO HAVE A RULING, FOR EXAMPLE, ON THE CONFIDENTIALITY

WE WILL ALSO NOT

WHETHER WE'LL PROPOUND ADDITIONAL DOCUMENTS REQUESTS
WE'RE WILLING TO HOLD THOSE OFF IF WE HAVE

WE PROBABLY

IN THOSE DOCUMENTS THERE ARE PEOPLE THERE WHO HAVE SAID -JOHN SMITH

GIVEN A MOTION TO COMPEL SIMILAR TO THE ONE WE HAD FILED

UNITED STATES COURT REPORTERS

23

10:27AM

1

DESIGNATIONS SO THAT IF AND WHEN WE GET PAST THE MOTION TO

10:27AM

2

DISMISS WE'RE ABLE TO AT THAT POINT IMMEDIATELY NOTICE

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DEPOSITIONS IF WE HAVE FURTHER DOCUMENTS.

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HOLDING UP THE PROCESS BETWEEN NOW AND NOVEMBER DOES NOT

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MEAN WE CAN THEN HIT THE GROUND RUNNING ON NOVEMBER 17TH, THE

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DAY AFTER THE HEARING, BECAUSE THAT WOULD MEAN WE WOULD THEN

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HAVE TO FILE OUR MOTION ON NOVEMBER 17TH AND THERE WOULD BE

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MOTION PRACTICE AND KNOW WHEN JUDGE COUSINS IS AVAILABLE.

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MAY PUSH OFF DISCOVERY YET ANOTHER SIX MONTHS AND EVEN AFTER

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YOUR HONOR RULES.

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PRACTICE STARTED NOW EVEN THOUGH WE'RE NOT WILLING TO NOT DO

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DEPOSITIONS AND NOT DO INTERROGATORIES AND NOT DO RFA'S IN THE

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INTERIM.

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DO YOU SEE THAT COMPRISING?

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SHOULD THEY BE BURDENED WITH A WHOLE HOST OF OTHER DISCOVERY

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MOTIONS NOTWITHSTANDING YOUR REQUEST FOR JUST THESE DISCRETE

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HELP PAGE INFORMATIONS?

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PANDORA'S BOX HERE?

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REALLY ASKING THAT FACEBOOK ACTUALLY RESPOND TO THE DOCUMENTS

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THAT WE ASKED FOR FIVE YEARS AGO AND THAT WE HAVE HAD MEET AND

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CONFERS WITH THREE YEARS AGO.

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THAT

SO IT'S IMPORTANT TO GET THAT MOTION

THE COURT:

WELL, WHAT DOES THAT -- THANK YOU.

MR. STRAITE:

WHAT

I MEAN, TO MR. BROWN'S POINT,

WHAT DOES THAT -- IS THIS OPENING A

I DON'T THINK SO, YOUR HONOR.

WE'RE

FACEBOOK HAS NOT PRODUCED A SINGLE DOCUMENT IN MORE THAN A
YEAR AND A HALF.

THEY HAVE SIMPLY REFUSED TO PARTICIPATE IN

UNITED STATES COURT REPORTERS

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DISCOVERY DURING THE PENDENCY OF A MOTION TO STAY WHICH WAS

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EVENTUALLY DENIED.

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PARTY TO UNILATERALLY GRANT ITSELF A STAY WHILE THEIR MOTION TO

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STAY IS PENDING.

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RELATED, AGAIN, TO THE HELP PAGES AND THE CONTRACT ISSUE, NOT

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THE BROAD ISSUES THAT PREVIOUSLY WERE IN THE CASE?

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10:29AM

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FACEBOOK PROMISE THAT THEY WOULD NOT MONITOR POST-BROWSING

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LOGOUT AND DID THEY IN FACT BREACH THAT CONTRACT OR BREACH THAT

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IMPLIED TERM OR BREACH THE IMPLIED COVENANT OF GOOD FAITH AND

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FAIR DEALING?

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WHETHER OR NOT IT ACTUALLY HAPPENED WILL STILL BE RELEVANT SO

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THERE'S A SIGNIFICANT CHUNK OF THE DOCUMENTS THAT WE REQUESTED

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BEFORE TO UNDERSTAND WHAT ACTUALLY HAPPENED DURING THE CLASS

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PERIOD THAT ARE STILL RELEVANT.

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WE OFFERED TO MEET AND CONFER LAST WEEK WITH MATT

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REGARDING THE SCOPE OF THOSE DOCUMENT REQUESTS, WHICH ONE WE

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CAN CUT OUT.

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THAT MEET AND CONFER AFTER TODAY'S HEARING AND SO WE DEFERRED

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THAT CONVERSATION FURTHER.

WE CAN'T FIND A SINGLE CASE THAT GIVES A

THE COURT:

SO THE INFORMATION YOU NEED NOW WOULD BE

MR. STRAITE:

YES AND NO, YOUR HONOR.

CERTAINLY WE

WOULD NOT -- NO LONGER SEEK DISCOVERY RELATED TO ANY DISMISSED
CLAIM, SOLELY RELATED TO THAT DISMISSED CLAIM.
HOWEVER, THE QUESTION IN THE CONTRACT CLAIM IS DID

SO MOST OF THE DOCUMENTS WE REQUESTED BEFORE REGARDING

MATT SUGGESTED IT WOULD BE MORE EFFICIENT TO HAVE

SO I KNOW NOTHING FURTHER SPECIFIC

UNITED STATES COURT REPORTERS

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10:29AM

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BECAUSE WE WERE NOT ABLE TO MEET AND CONFER LAST WEEK.

10:29AM

2

10:29AM

3

ANYTHING.

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OBJECTIONS AS WELL AS COMMITMENTS TO PRODUCE CERTAIN CATEGORIES

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OF THINGS.

THEY DIDN'T ALWAYS SEE EYE TO EYE WITH OUR

10:29AM

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RESPONSES.

WE HAD EXTENSIVE MEET AND CONFERS, AND THAT

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RESULTED THEN IN THE MOTION TO COMPEL THAT THEY FILED.

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10:30AM

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THAT THE PARTIES WERE AT LOGGERHEADS ON WHETHER WE WOULD HAVE

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ADDITIONAL OBLIGATIONS OR NOT.

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TO COLLECT FROM ADDITIONAL CUSTODIANS IF THEY HAD BEEN

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REASONABLE IN MEET AND CONFERS, BUT THEY INSTEAD TOOK A VERY

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HARDLINE POSITION THAT THERE WERE THESE 20-PLUS ADDITIONAL

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CUSTODIANS THAT WE HAD TO COLLECT FROM WHICH WAS JUST A

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NONSTARTER.

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LITIGATING A MOTION TO COMPEL IN AN ODD WAY AT THIS CMC, BUT

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THERE'S A LONG HISTORY HERE.

10:30AM

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THE RECORD IS CLEAR THAT WE HAVE NOT BEEN SORT OF REFUSING TO

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DO ANYTHING.

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BEEN CRYSTALLIZED.

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10:30AM

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MR. BROWN:

YEAH, WE HAVE NOT REFUSED TO DO

WE HAVE -- WE RESPONDED TO THEIR RFP'S WITH SOME

SO ALL OF THE ISSUES THERE HAVE BEEN CRYSTALLIZED.
NOT AS THOUGH WE HAVE BEEN REFUSING TO DO ANYTHING.

IT'S

IT'S JUST

AND I WOULD TELL YOU, FOR INSTANCE, THAT WE WERE WILLING

SO THERE'S A WHOLE HISTORY HERE, AND I FEEL LIKE WE'RE

AND I JUST WANT TO MAKE SURE THAT

IT'S JUST THAT ALL OF THE ISSUES HAVE ALREADY

MY CONCERN IS THAT, I MEAN, THERE'S GOING TO BE NO WAY
THAT WE CAN GET MOTIONS TO COMPEL BRIEFED AND HEARD AND IF THE

UNITED STATES COURT REPORTERS

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10:31AM

1

MOTION TO COMPEL IS GRANTED IN PART AND IN OUR FAVOR, ACTUALLY

10:31AM

2

COLLECT AND REVIEW AND PRODUCE DOCUMENTS BEFORE AUGUST 25TH

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3

WHICH IS WHEN THEIR COMPLAINT IS DUE.

10:31AM

4

10:31AM

5

CENTER PAGE ISSUE.

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NEED IN ORDER TO FILE THEIR COMPLAINT, BUT THERE'S REALLY VERY

10:31AM

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LITTLE BURDEN ON THE PLAINTIFFS TO SIMPLY WAIT UNTIL YOUR HONOR

10:31AM

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RULES ON THE NEXT ROUND OF MOTION TO DISMISS AND SEE IF

10:31AM

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ANYTHING ACTUALLY GETS THROUGH BEFORE WE UNDERTAKE ALL OF THIS

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10:31AM

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10:31AM

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VERY IMPORTANT POINT.

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PARALLEL IS THE BURDEN THAT HE'S REFERRING TO, AND I THINK HE'S

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RIGHT.

10:31AM

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10:31AM

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FILE A MOTION TO COMPEL UNTIL SEPTEMBER 8TH, AND THAT WAY HE'S

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NOT BRIEFING DOCUMENTS IN PARALLEL WITH THAT.

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ACCEPTABLE?

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10:31AM

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10:31AM

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THE COURT:

10:32AM

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MR. STRAITE:

10:32AM

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GUESSING ABOUT THE RELIEF PART.

10:32AM

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THE COURT:

10:32AM

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SO ALL I'M SAYING IS THAT I HEAR YOUR HONOR ON THE HELP
THAT WOULD GIVE THEM WHAT THEY SAY THEY

OTHER BURDEN AND DOCUMENT PRODUCTION.
MR. STRAITE:

AND, YOUR HONOR, I THINK MATT HIT ON A
THE IDEA OF BRIEFING TWO BRIEFS IN

AND IF IT WOULD HELP YOUR HONOR, WE ARE WILLING TO NOT

MR. BROWN:

WOULD THAT BE

NO, THAT WAS NOT QUITE WHAT I WAS

GETTING AT.
A BIG SIGH OF RELIEF.
IT WAS A BIG SIGH OF RELIEF.

I'M

WELL, I APPRECIATE THE POSITIONS THAT

YOU'RE BOTH IN, AND I HOPE YOU APPRECIATE MINE.

UNITED STATES COURT REPORTERS

I'M TRYING TO

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10:32AM

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ASSIST YOU IN GETTING SOME CLARITY ON THE CASE, AND I THINK WE

10:32AM

2

HAVE DONE THIS OVER THE LAST FOUR YEARS.

10:32AM

3

AT LEAST TWO DISCRETE ISSUES.

10:32AM

4

YOU'RE GOING TO CONTINUE TO MEET AND CONFER AS TO THE

10:32AM

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INFORMATION ON THE HELP CENTER PAGES THAT I THINK COULD ASSIST

10:32AM

6

YOU AND INFORM YOU AS TO HOW AND HOW YOU SHOULD FILE YOUR THIRD

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AMENDED COMPLAINT IN THIS CASE.

10:32AM

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10:32AM

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NEED, AND I'M HOPING THAT FACEBOOK CAN PROVIDE AS MUCH AS YOU

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FEEL YOU CAN PROVIDE WITHOUT GOING TO JUDGE COUSINS AND TRYING

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TO GET ADDITIONAL DISCOVERIES.

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10:32AM

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I HOPE YOU CAN GET THIS DONE IN THAT TIME.

10:33AM

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BEEN COLLEAGUE OPPOSITES HERE FOR QUITE SOME TIME AND WORKING

10:33AM

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TOGETHER ON THIS CASE, AND I APPRECIATE YOUR CONTINUED EFFORTS

10:33AM

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IN THAT REGARD.

10:33AM

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MR. STRAITE:

10:33AM

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THE COURT:

10:33AM

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MR. STRAITE:

10:33AM

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HOUSEKEEPING ISSUES.

10:33AM

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THE COURT:

10:33AM

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MR. STRAITE:

10:33AM

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CIRCULATED TO FACEBOOK, I NEGLECTED TO NOTIFY YOU OF TWO SMALL

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ADDITIONAL MOTIONS THAT WILL BE COMING YOUR WAY.

I THINK YOU KNOW MY POSITION.

THE CASE IS DOWN TO

I'D LIKE YOU BOTH TO MEET

AND CONFER AND TO PROVIDE AS MUCH AS YOU CAN, ASK FOR WHAT YOU

I'M NOT GOING TO DISTURB THE TIMING THAT I JUST GAVE YOU.
AND I KNOW YOU'VE

THANK YOU, YOUR HONOR.

ALL RIGHT.
IS THERE IS ONE -- A COUPLE OF

YES.
IN THE DRAFT CMC STATEMENT THAT WE

UNITED STATES COURT REPORTERS

YOU KNOW THAT

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10:33AM

1

THEY'RE UPWARDS OF 20 OR 30 INDIVIDUAL CASES THAT WERE

10:33AM

2

CONSOLIDATED HERE.

10:33AM

3

AND WE'VE BEEN WORKING WITH THEM, BUT THERE ARE TWO PLAINTIFFS,

10:33AM

4

I UNDERSTAND, IN TWO CONSOLIDATED CASES REPRESENTED BY TWO

10:33AM

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DIFFERENT FIRMS THAT WE'VE NEVER WORKED WITH, AND WE HAVE NEVER

10:33AM

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GIVEN THEM WORK FOR REASONS UNRELATED TO THE MERITS OF THE

10:33AM

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CASE.

10:33AM

8

I'LL FACILITATE THAT.

10:33AM

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THAT THESE MIGHT BE COMING IN THE NEXT WEEK OR TWO OR THREE,

10:33AM

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10:34AM

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10:34AM

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MR. BROWN:

NOTHING FROM ME.

10:34AM

14

THE COURT:

THANK YOU VERY MUCH.

10:34AM

15

10:34AM

16

MR. STRAITE:

10:34AM

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MR. BROWN:

THANK YOU.

10:34AM

18

THE CLERK:

COURT IS ADJOURNED.

10:34AM

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COUNSEL WERE APPOINTED TO LEADERSHIP ROLES,

THEY'VE ASKED ME IF IT WOULD BE OKAY TO WITHDRAW AND
AND I JUST WANTED TO GIVE YOU A HEADS UP

BUT THEY'RE NOT RELATED TO THE MERITS.
THE COURT:

OKAY.

THANK YOU.

I APPRECIATE THAT.

ANYTHING FURTHER?

BOTH.
THANK YOU.

(COURT CONCLUDED AT 10:34 A.M.)

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UNITED STATES COURT REPORTERS

GOOD SEEING YOU

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED

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STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,

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280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:
THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

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A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

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ABOVE-ENTITLED MATTER.

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______________________________
IRENE RODRIGUEZ, CSR, RMR, CRR
CERTIFICATE NUMBER 8074

DATED:

JULY 31, 2017

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UNITED STATES COURT REPORTERS