In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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JOINT STATEMENT CONCERNING CASE SCHEDULE filed by Facebook Inc.. (Gutkin, Jeffrey) (Filed on 7/27/2012) Modified on 7/30/2012 (cv, COURT STAFF).
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COOLEYLLP
MICHAEL G. RHODES (116127)
(rhodesmg@cooley.com)
MATTHEW D. BROWN (196972)
(brownmd@cooley.com)
JEFFREY M. GUTKIN (216083)
Ggutkin@cooley.com))
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
(415) 693-2000
Facsimile:
(415) 693-2222
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Attorneys for Defendant FACEBOOK, INC.
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(Additional counsel on signature page)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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In re: Facebook Internet Tracking Litigation
Case No. 12-md-02314 EJD
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JOINT STATEMENT CONCERNING CASE
SCHEDULE
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JUDGE:
COURTROOM:
TRIAL DATE:
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Edward J. Davila
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Not Set
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Plaintiffs Perrin Davis, Cynthia Quinn, Brian Lentz, and Matthew Vickery (collectively,
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"Plaintiffs") and Defendant Facebook, Inc. ("Face book") (Plaintiffs and Facebook collectively,
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the "Parties"), by and through their respective counsel, jointly submit this Joint Statement
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Concerning Case Schedule pursuant to the Court's Minute Entry following the Case Management
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Conference held on June 29, 2012, which requires the Parties to submit a joint case management
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statement two weeks after the Rule 26(f) conference that proposes a schedule for the case.
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The Parties have met and conferred concerning a proposed schedule for this case. The
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Parties agree on all aspects of the case schedule, with the exception of: (1) whether discovery
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should be bifurcated between matters relevant to class certification and matters relevant only to
COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
1.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No. 12-MD-02314 EJD
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the merits and (2) the limitation on the number of depositions. Immediately below, Plaintiffs
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provide a short statement explaining why they believe discovery should not be bifurcated, and
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Facebook provides a short statement explaining why it believes discovery should be bifurcated.
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Next, Plaintiffs state their proposal for an expansion of the 10 deposition limit set forth in Rule 30
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(a)(2)(A)(i), and Facebook states its bases for opposing that expansion. Following these
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statements, the Parties provide the proposed schedule, which is a joint proposal except for two
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entries as noted, which reflect Facebook's position that discovery should be bifurcated.
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Plaintiffs' Statement Concerning Bifurcation of Discovery:
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The Federal Rules of Civil Procedure do not provide for a stay of merits discovery
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pending class certification. This Court advised the parties at the last status conference that it saw
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no reason to stay discovery. The plaintiffs believe that issues related to class certification and
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issues related to the merits of the case are so intertwined as to make any bifurcation of discovery
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impractical. As stated in Newberg on Class Actions§ 7:8 (4th ed.), "Discovery on the merits
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should not normally be stayed pending so-called class discovery, because class discovery is
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frequently not distinguishable from merits discovery, and classwide discovery is often necessary
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as circumstantial evidence even when the class is denied. Such a discovery bifurcation will often
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be counterproductive in delaying the progress of the suit for orderly and efficient adjudication."
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Of course, the Court has broad discretion to issue protective orders to control discovery
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but in this case defendant cannot demonstrate the "strong showing" necessary to warrant a partial
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stay of discovery. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9 1h Cir. 1975); Gray v. First
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Winthrop Corp., 133 F.R.D. 39, (N.D. Cal. 1990). Defendant has suggested staying discovery on
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"knowledge and intent" issues but such a broad and vague description would allow defendant to
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withhold discovery on a wide array of issues important to class certification. And the Court will
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retain the authority to address any discovery limitations that the defendant believes are
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appropriate in response to specific discovery requests. A blanket stay of broad classes of
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discovery at this stage is neither justified nor necessary.
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
2.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No. 12-MD-02314 EJD
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In the event the Court wishes to consider any sort of discovery bifurcation that would
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change the Court's previous statement that discovery should not be stayed, the plaintiffs request
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an opportunity to fully brief the issue.
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Face book's Statement Concerning Bifurcation of Discovery:
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Facebook believes that discovery should be bifurcated, with discovery relevant to class
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certification first and discovery that relates solely to the merits of Plaintiffs' claims to be
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conducted only after the Court issues a decision on class certification. Phased discovery of this
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sort is contemplated by the federal Manual for Complex Litigation (see, e. g., §§ 21.11, 21.14),
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which states that allowing full merits discovery before a decision on certification "can create
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unnecessary and extraordinary expense and burden" (id. § 21.14). Of course, class determination
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frequently "entail[s] some overlap with the merits of the plaintiff's underlying claim." Wal-Mart
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Stores, Inc. v. Dukes, 131 S. Ct. 2541,2551 (2011). Even so, federal courts frequently allow
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bifurcation in class actions. See Hager v. Vertrue, Inc., No. 09-11245-GAO, 2011 WL 4501046,
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at* 1 (D. Mass. Sept. 28, 2011) (acknowledging bifurcation of class and merits discovery); Harris
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v. Option One Mortg. Corp., 261 F.R.D. 98, 111 (D.S.C. 2009) (granting bifurcation on the
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ground that doing so "will promote the interests of fairness and efficiency"); Am. Nurses' Assoc.
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v. Illinois, 1986 WL 10382, at *2-3 (N.D. Ill. Sept. 12, 1986) (granting bifurcation because it
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would "expedite the decision on class certification in accord with Federal Rule 23").
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Bifurcating class certification discovery from merits discovery is necessary here to avoid
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imposing the costs and burdens of full (and potentially needless) merits discovery on Facebook
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before the Court determines whether this case may proceed as a class action. See NOW,
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Farmington Valley Chapter v. Sperry Rand Corp., 88 F.R.D. 272, 277 (D. Conn. 1980) (ordering
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bifurcation of discovery because, in pre-certification stage, "the defendant must be protected from
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discovery which is overly burdensome, irrelevant, or which invades privileged or confidential
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areas") (citation omitted); see also, e.g., Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering
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Sec. Litig.), 471 F.3d 24, 41 (2d Cir. 2006) ("[A] district judge has ample discretion to
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circumscribe ... the extent of discovery concerning Rule 23 requirements ... in order to assure
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that a class certification motion does not become a pretext for a partial trial of the merits."). For
COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
3.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.l2-MD-02314 EJD
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example, although Facebook expects that the parties will need to explore the operation of
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Facebook's HTTP cookies in order to resolve whether class certification is appropriate,. the
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parties need not expend the significant time and resources required to explore certain other
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substantive issues. In particular, Facebook's intent in implementing its practices with respect to
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HTTP cookies or knowledge of any alleged misconduct 1 are likely to have no bearing on class
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certification, and discovery on these topics need not be undertaken at this time. Moreover, this
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Court's ruling on Plaintiffs' anticipated motion for class certification may significantly narrow or
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reshape the issues the Parties must address in merits discovery by denying certification or
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changing the scope of the case. "If class certification is denied, the scope of permissible
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discovery may be significantly narrowed; if a class is certified, defining that class should help
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determine the limits of discovery on the merits." Am. Nurses' Assoc., 1986 WL 10382, at *3.
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Plaintiffs' Statement Concerning Depositions:
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Because of the size and complexity of these consolidated MDL cases, plaintiffs believe
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that the limit of 10 depositions set forth in Rule 30 (a)(2)(A)(i) is impractical. Plaintiffs suggest
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that the number of depositions per side be initially limited to 20, absent a showing of good cause,
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and that Rule 30(b)(6) deposition notices count as one deposition regardless of how many
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individual witnesses are designated by a party to testify in response to such notice. Defendant
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Facebook opposes this suggestion.
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Facebook's Statement Concerning Depositions:
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Plaintiffs have not demonstrated good cause to expand the number of depositions of
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Facebook witnesses in this case beyond the limit set forth in Federal Rule of Civil Procedure
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Establishing Facebook's intent and knowledge will be an element of several of Plaintiffs' claims
at the merits stage. See Federal Wiretap Act, 18 U.S.C. § 2511(1) (requiring defendant to act
"intentionally"); Stored Communications Act, 18 U.S.C. § 2701(a) (same); Computer Fraud and
Abuse Act, 18 U.S.C. § 1030 (requiring defendant to act "knowingly" or "intentionally"); Cal.
Penal Code§ 502(c) (requiring defendant to act "knowingly"); Cal. Penal Code§ 631(a)
(requiring defendant to act "intentionally"); Invasion of Privacy, Medical Laboratory
Management Consultants v. ABC, Inc., 306 F.3d 806, 812 (9th Cir. 2002) (same); Conversion,
Bank of New York v. Fremont General Corp., 523 F.3d 902, 914 (9th Cir. 2008) (conversion is an
"intentional tort"); Trespass to Chattels, Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350-51 (2003)
(trespass requires an "intentional interference").
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
4.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE NO.l2-MD-02314 EJD
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30(a)(2)(A)(i). Expanding the limit would be inconsistent with Rule 26(b)(2) and would impose
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undue burden on Facebook. Further, Plaintiffs' request for a modification of the limits set forth
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by the Federal Rules of Civil Procedure is inconsistent with the position they took at the most
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recent CMC. At that time, they agreed with the Court's conclusion that discovery should not be
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stayed pending resolution of Facebook's motion to dismiss because the case was not so different
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from other cases in federal court that it warranted deviation from the default provisions of the
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Federal Rules. Today, Plaintiffs take the inconsistent position (not raised at the CMC) that the
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case is so different that the Federal Rules need to be modified to allow Plaintiffs to take more
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depositions than they would otherwise be permitted to take. Plaintiffs' request lacks merit, and a
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general reference to the "size and complexity" of the case is not a sufficient showing. Similarly,
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there is no reason to count each Rule 30(b)(6) deposition notice as only one deposition, regardless
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of the number and variety of topics included in the notice and regardless of the number of
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Facebook witnesses that reasonably must be made available to testify on those topics (for
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example, a deposition notice containing 15 topics that results in 3 depositions of 3 different
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Facebook employees). Plaintiffs' request should be denied.
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
5.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.12-MD-02314 EJD
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Jointly Proposed Schedule:
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Event
Proposed Date
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Rule 26(a)(1) Initial Disclosures
July 27, 2012
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Answer
IfFacebook's Motion to Dismiss is (1) denied in its
entirety or (2) denied in part and granted in part without
giving Plaintiffs leave to amend, Facebook shall file its
answer no later than 3 0 days after the decision on
Facebook's Motion to Dismiss?
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If Facebook's Motion to Dismiss is (1) denied in part and
granted in part and Plaintiffs are given leave to amend or
(2) granted entirely with leave to amend, Facebook shall
file either an answer or a renewed motion to dismiss 30
days after amendment of the complaint. If the Motion to
Dismiss was granted only in part and no amendment is
filed, Facebook shall file an answer 30 days after the
deadline to file an amendment passes. If Facebook files a
renewed motion to dismiss after amendment of the
complaint, Facebook's deadline to answer will be
continued until set by further order of the Court.
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The date on which Facebook files its answer, if that
occurs, shall be deemed the "Answer Date."
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Deadline for Disclosure of
Plaintiffs' Class Certification
Expert Witnesses (name, address,
qualifications, resume, and written
report)
14 days before deadline to file motion to certify class
Deadline to File Motion to Certify
Class
150 days after Answer Date
Deadline for Con1pletion of Class
Certification Fact Discovery,
Including Fact Witness
Depositions
Facebook: 150 days after Answer Date
Plaintiffs: N/A
Deadline for Disclosure of
Facebook's Class Certification
Expert Witnesses (name, address,
qualifications, resume, and written
report)
60 days after deadline to file motion to certify class
Deadline to File Any Opposition
to Motion to Certify Class
60 days after deadline to file motion to certify class
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If any deadline provided for in this schedule falls on a weekend or Court holiday, the deadline
will be continued until the next Court day.
COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
6.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.12-MD-02314 EJD
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Event
Proposed Date
Deadline to File Any Reply in
Support of Motion to Certify Class
3 0 days after deadline to file opposition to motion to
certify class
Hearing on Class Certification
Motion
At Court's convenience
First Day for Serving of Merits
Discovery
Facebook: Day of decision on class certification motion
Plaintiffs: N/A
Deadline for Completion of Fact
Discovery, Including Fact Witness
Depositions
180 days after decision on class certification motion
Parties to Meet and Confer to
Propose a Schedule for Pre-trial
Conference, Pre-trial Motions, and
Trial
180 days after decision on class certification motion
Deadline for Disclosure of
Plaintiffs' Expert Witnesses to be
Presented at Trial (name, address,
qualifications, resume, and written
report)
3 5 days after completion of merits fact discovery
Deadline for Disclosure of
Facebook's Expert Witnesses to be
Presented at Trial (name, address,
qualifications, resume, and written
report)
42 days after disclosure of Plaintiffs' expert witnesses to
be presented at trial
Deadline for Completion of Merits
Expert Discovery, including
Expert Depositions
21 days after disclosure of Facebook's expert witnesses to
be presented at trial
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Last Day to File Motion for
Summary Judgment
30 days after close of merits expert discovery
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Deadline to File Any Opposition
to Motion for Summary Judgment
3 5 days after deadline to file motion for summary
judgment
Deadline to File Any Reply in
Support of Motion for Summary
Judgment
21 days after deadline to file opposition to motion for
summary judgment
Hearing on Summary Judgment
Motion
At Court's convenience
Pre-trial Conference, Pre-trial
Motions, and Trial
To be determined
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
7.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.l2-MD-02314 EJD
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Respectfully submitted,
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Dated: July 27, 2012
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Is/ Jeffrey M Gutkin
JEFFREY M. GUTKIN
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Attorneys for Defendant FACEBOOK, INC.
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COOLEYLLP
Dated: July 27, 2012
BARTIMUS, FRICKLETON, ROBERTSON, &
GORNY,P.C.
Is/ Edward D. Robertson, Jr.
EDWARD D. ROBERTSON, JR.
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BARTIMUS, FRICKLETON, ROBERTSON, &
GORNY,P.C.
EDWARD D. ROBERTSON, JR.
(chipro b@earthlink.net)
JAMES P. FRICKLETON
STEPHEN M. GORNY
MARY D. WINTER
EDWARD D. ROBERTSON III
11150 Overbook Road, Suite 200
Leawood, KS 66211
Telephone:
(913) 266-2300
Facsimile:
(913) 266-2366
STEWARTS LAW US LLP
DAVID A. STRAITE
RALPHN. SIANNI
MICHELE S. CARINO
LYDIA E. YORK
1201 North Orange Street
Wilmington, DE 19801
Telephone:
(302) 298-1200
Facsimile:
(302) 298-1222
Attorneys for Plaintiffs
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
8.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.12-MD-02314 EJD
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ATTESTATION
In accordance with Northern District of California Civil Local Rule 5-1(i)(3), I hereby
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attest that I have obtained concurrence in the filing of this document from each of the other
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signatories.
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Is/ Jeffrey M Gutkin
JEFFREY M. GUTKIN
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
9.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE NO.l2-MD-02314 EJD
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PROOF OF SERVICE
(FRCP 5)
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I hereby certify that on July 27, 2012, I filed the foregoing document with the Clerk of
Court using the CM/ECF system:
Joint Statement Concerning Case Schedule
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This document was served on all counsel who are deemed to have consented to electronic
service via the CM/ECF system in this action.
This document and the notice of electronic filing were also served via U.S. Mail on the
following:
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Stephen Sullivan
Keefe Bartels LLC
170 Monmouth Street
Red Bank, NJ 07701
Ph: (732) 224-9400
Email: ssulivan@keefebartels.com
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Executed on July 27, 2012, at Seattle, Washingto ,:
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Kristi Peterson
2635706/ST
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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO
10.
JOINT STATEMENT
CONCERNING CASE SCHEDULE
CASE No.12-MD-02314 EJD
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