Perkins et al v. LinkedIn Corporation
Filing
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ORDER re 34 Discovery Dispute Joint Report #1. Signed by Magistrate Judge Howard R. Lloyd on 3/17/2014. (hrllc1, COURT STAFF) (Filed on 3/17/2014) Modified text on 3/18/2014 (dhmS, COURT STAFF).
*E-Filed: March 17, 2014*
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
NOT FOR CITATION
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United States District Court
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SAN JOSE DIVISION
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PAUL PERKINS, ET AL.,
Plaintiffs,
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v.
No. C13-04303 LHK (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORT #1
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LINKEDIN CORPORATION,
[Re: Docket No. 34]
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Defendant.
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In this putative class action, Plaintiffs sue defendant LinkedIn Corporation (“LinkedIn”) for
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allegedly wrongfully accessing their contacts from external email accounts and spamming them with
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invitations to join LinkedIn. This challenged feature is called “Add Connections.” LinkedIn moved
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to dismiss Plaintiffs’ First Amended Complaint (“FAC”) on the basis that Plaintiffs lack standing
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because they have not suffered a cognizable injury. In doing so, LinkedIn asserted that certain
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public statements of Reid Hoffman, LinkedIn’s Executive Chairman and Co-Founder, relied on by
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Plaintiffs to establish standing were misquoted. Shortly after opposing the motion in mid-January
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2014, Plaintiffs noticed Hoffman’s deposition for March 18, 2014. On February 24, counsel for the
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parties met and conferred by telephone to discuss LinkedIn’s objection to the deposition. Unable to
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resolve the dispute after approximately 30 minutes, the parties filed the instant Discovery Dispute
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Joint Report (“DDJR”) in which LinkedIn seeks a protective order pursuant to the “apex doctrine”
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preventing the deposition of Reid Hoffman.
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“The party seeking a protective order bears the burden of showing good cause for the order
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by ‘demonstrating harm or prejudice that will result from the discovery.’” Apple Inc. v. Samsung
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Elecs. Co., 282 F.R.D. 259, 262-263 (N.D. Cal. 2012) (quoting Rivera v. NIBCO, Inc., 364 F.3d
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1057, 1063 (9th Cir. 2004)). “When a party seeks the deposition of a high-level executive (a so-
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called “apex” deposition), courts have observed that such discovery creates a tremendous potential
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for abuse or harassment.” Id. at 263 (internal quotation marks omitted). “In determining whether to
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allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-
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repetitive knowledge of facts at issue in the case and (2) whether the party seeking the deposition
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has exhausted other less intrusive discovery methods.” Id. Absent extraordinary circumstances, it is
For the Northern District of California
United States District Court
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very unusual for a court to prohibit the taking of a deposition. Id. “When a witness has personal
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knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to
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deposition.” Id. A claimed lack of knowledge, by itself is insufficient to preclude a deposition. Id.
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Plaintiffs assert that Hoffman has unique first-hand knowledge of matters directly relevant to
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the standing issues raised by Defendants in their motion to dismiss because Hoffman purportedly
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conceived of the “Add Connections” feature. Moreover, Hoffman is the only person who can
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explain the meaning behind his public statements about the feature, which the parties dispute.
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LinkedIn alleges that Plaintiffs are abusing the discovery process by misquoting Hoffman, thereby
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fabricating a dispute in order to justify taking a deposition to which it would otherwise not be
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entitled. Additionally, Plaintiffs fail the second prong of the “apex doctrine” inquiry because they
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have not obtained any other discovery in the case. On the other hand, Plaintiffs argue that LinkedIn
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cannot challenge the veracity of the quoted statements in its motion to dismiss and then deny
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Plaintiffs their only means of authenticating the statements. Moreover, in the meet and confer,
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LinkedIn failed to suggest any other means of discovering the relevant information.
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While it seems likely that Hoffman has significant first-hand knowledge of relevant
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information, the Court is concerned by Plaintiffs lack of any other discovery prior to seeking to
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depose the Executive Chairman. However, the Court is also concerned with LinkedIn’s failure to
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propose any alternative means of discovery in lieu of deposing Hoffman that might allow Plaintiffs
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to discover relevant information about the conception and development of Add Connections. In
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other words, the Court is not convinced that the parties’ meet and confer was at all meaningful, and
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the 30 minute phone call did not adequately substitute for the in-person meet and confer between
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lead counsel “for as long as and as often as is needed to reach full agreement” required by the
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undersigned’s Standing Order re: Civil Discovery Disputes.
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Accordingly, lead counsel for each party shall meet and confer in person, and if the dispute
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remains unresolved, file a Supplemental DDJR #1 within five days from the date of this order, not to
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exceed four pages, in which the parties address any proposed alternative discovery methods. The
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Hoffman deposition shall be stayed during this time and pending judicial resolution of the
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Supplemental DDJR, if filed.
For the Northern District of California
United States District Court
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IT IS SO ORDERED.
Dated: March 17, 2014
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
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C13-04303-LHK (HRL) Notice will be electronically mailed to:
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Daniel Paul Hipskind
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Dorian Seawind Berger
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Jerome Cary Roth
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Larry C. Russ
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Larry Craig Russ
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Rosemarie Theresa Ring , Esq rose.ring@mto.com, erika.eberline@mto.com,
jonathan.blavin@mto.com, steven.uhrig@mto.com, william.edelman@mto.com
dhipskind@irell.com, dhipskind@raklaw.com
dberger@raklaw.com, kdepangher@raklaw.com, tvogt@raklaw.com
Jerome.Roth@mto.com, susan.ahmadi@mto.com
lruss@raklaw.com
lruss@raklaw.com, earambula@raklaw.com, lcdiaz@raklaw.com
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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.
For the Northern District of California
United States District Court
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