In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
162
MOTION to Dismiss Plaintiffs Third Amended Consolidated Class Action Complaint filed by Facebook Inc.. Motion Hearing set for 11/16/2017 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 10/13/2017. Replies due by 10/27/2017. (Attachments: #1 Declaration of Matthew D. Brown In Support of Defendant Facebook, Inc.s Motion to Dismiss Plaintiffs Third Amended Consolidated Class Action Complaint, #2 Exhibit 1 to Brown Declaration, #3 Exhibit 2 to Brown Declaration, #4 Exhibit 3 to Brown Declaration, #5 Exhibit 4 to Brown Declaration, #6 Exhibit 5 to Brown Declaration, #7 Exhibit 6 to Brown Declaration, #8 Proposed Order)(Brown, Matthew) (Filed on 9/8/2017)
Exhibit 2
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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
09:59AM
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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;
10:13AM
7
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
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DESIGNATIONS SO THAT IF AND WHEN WE GET PAST THE MOTION TO
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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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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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BECAUSE WE WERE NOT ABLE TO MEET AND CONFER LAST WEEK.
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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
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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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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.
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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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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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MOTION TO COMPEL IS GRANTED IN PART AND IN OUR FAVOR, ACTUALLY
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COLLECT AND REVIEW AND PRODUCE DOCUMENTS BEFORE AUGUST 25TH
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WHICH IS WHEN THEIR COMPLAINT IS DUE.
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CENTER PAGE ISSUE.
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NEED IN ORDER TO FILE THEIR COMPLAINT, BUT THERE'S REALLY VERY
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LITTLE BURDEN ON THE PLAINTIFFS TO SIMPLY WAIT UNTIL YOUR HONOR
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RULES ON THE NEXT ROUND OF MOTION TO DISMISS AND SEE IF
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ANYTHING ACTUALLY GETS THROUGH BEFORE WE UNDERTAKE ALL OF THIS
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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.
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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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THE COURT:
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MR. STRAITE:
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GUESSING ABOUT THE RELIEF PART.
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THE COURT:
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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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ASSIST YOU IN GETTING SOME CLARITY ON THE CASE, AND I THINK WE
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HAVE DONE THIS OVER THE LAST FOUR YEARS.
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AT LEAST TWO DISCRETE ISSUES.
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YOU'RE GOING TO CONTINUE TO MEET AND CONFER AS TO THE
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INFORMATION ON THE HELP CENTER PAGES THAT I THINK COULD ASSIST
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YOU AND INFORM YOU AS TO HOW AND HOW YOU SHOULD FILE YOUR THIRD
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AMENDED COMPLAINT IN THIS CASE.
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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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I HOPE YOU CAN GET THIS DONE IN THAT TIME.
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BEEN COLLEAGUE OPPOSITES HERE FOR QUITE SOME TIME AND WORKING
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TOGETHER ON THIS CASE, AND I APPRECIATE YOUR CONTINUED EFFORTS
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IN THAT REGARD.
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MR. STRAITE:
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THE COURT:
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MR. STRAITE:
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HOUSEKEEPING ISSUES.
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THE COURT:
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MR. STRAITE:
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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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THEY'RE UPWARDS OF 20 OR 30 INDIVIDUAL CASES THAT WERE
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CONSOLIDATED HERE.
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AND WE'VE BEEN WORKING WITH THEM, BUT THERE ARE TWO PLAINTIFFS,
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I UNDERSTAND, IN TWO CONSOLIDATED CASES REPRESENTED BY TWO
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DIFFERENT FIRMS THAT WE'VE NEVER WORKED WITH, AND WE HAVE NEVER
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GIVEN THEM WORK FOR REASONS UNRELATED TO THE MERITS OF THE
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CASE.
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I'LL FACILITATE THAT.
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THAT THESE MIGHT BE COMING IN THE NEXT WEEK OR TWO OR THREE,
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MR. BROWN:
NOTHING FROM ME.
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THE COURT:
THANK YOU VERY MUCH.
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MR. STRAITE:
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MR. BROWN:
THANK YOU.
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THE CLERK:
COURT IS ADJOURNED.
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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
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