Campbell et al v. Facebook Inc.

Filing 103

RESPONSE (re 96 MOTION to Dismiss Claims and Withdraw David Shadpour as Putative Class Representative ) Defendant Facebook, Inc.'s Opposition to Plaintiffs' Motion to Withdraw Plaintiff David Shadpour Without Prejudice filed byFacebook Inc.. (Attachments: # 1 Declaration of Christopher Chorba In Support of Defendant Facebook, Inc.'s Opposition to Plaintiffs' Motion to Withdraw Plaintiff David Shadpour Without Prejudice, # 2 Exhibit 1 to Chorba Decl. ISO Facebook's Opposition, # 3 Exhibit 2 to Chorba Decl. ISO Facebook's Opposition, # 4 Exhibit 3 to Chorba Decl. ISO Facebook's Opposition, # 5 Exhibit 4 to Chorba Decl. ISO Facebook's Opposition, # 6 Exhibit 5 to Chorba Decl. ISO Facebook's Opposition (Filed Under Seal), # 7 Exhibit 6 to Chorba Decl. ISO Facebook's Opposition)(Chorba, Christopher) (Filed on 7/27/2015)

1
2
3
4
5
6
7
8
9
10
11
12
13

GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FACEBOOK, INC.

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17
18
19
20
21
22

MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,

Case No. C 13-05996 PJH

Plaintiffs,

DEFENDANT FACEBOOK, INC.’S
OPPOSITION TO PLAINTIFFS’ MOTION
TO WITHDRAW PLAINTIFF DAVID
SHADPOUR WITHOUT PREJUDICE

Defendant.

Date:
September 9, 2015
Time:
9:00 a.m.
Location: Courtroom 3, Third Floor
The Honorable Phyllis J. Hamilton

v.
FACEBOOK, INC.,

23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

TABLE OF CONTENTS

1

Page

2
3

I.

INTRODUCTION AND SUMMARY OF ARGUMENT ....................................................... 1

4

II.

STATEMENT OF ISSUE TO BE DECIDED .......................................................................... 2

5

III.

FACTUAL BACKGROUND ................................................................................................... 2

6

IV.

THE COURT SHOULD REQUIRE MR. SHADPOUR TO COMPLY WITH HIS
DISCOVERY OBLIGATIONS BEFORE PERMITTING HIS WITHDRAWAL .................. 4

V.

TO THE EXTENT IT GRANTS PLAINTIFFS’ REQUEST, THE COURT SHOULD
DISMISS MR. SHADPOUR’S CLAIMS WITH PREJUDICE AND AMEND ITS
INTERIM CLASS COUNSEL ORDER ................................................................................. 10

VI.

CONCLUSION ....................................................................................................................... 11

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

i

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

TABLE OF AUTHORITIES

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Page(s)
Cases
Aguilar v. Boulder Brands, Inc.,
No. 12-01862, 2014 WL 4352169 (S.D. Cal. Sept. 2, 2014) ........................................................ 9
Blankenship v. Hearst Corp.,
519 F.2d 418 (9th Cir. 1975) ......................................................................................................... 5
Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co.,
No. 09-2757, 2011 WL 5865059 (D. Colo. Nov. 22, 2011) ...................................................... 5, 9
Dysthe v. Basic Research, LLC,
273 F.R.D. 625 (C.D. Cal. 2011) ....................................................................... 5, 6, 7, 8, 9, 10, 11
Fraley v. Facebook, Inc.,
No. 11-1726-LHK, 2012 U.S. Dist. LEXIS 21501 (N.D. Cal. Feb. 21, 2011) ................. 5, 6, 8, 9
Funke v. Life Fin. Corp.,
No. 99-11877, 2003 WL 21182763 (S.D.N.Y. May 20, 2003) ..................................................... 5
In re Google Inc. Gmail Litig.,
No. 13-MD-02430, 2014 U.S. Dist. LEXIS 36957 (N.D. Cal. Mar. 18, 2014)............................. 7
In re Urethane Antitrust Litig.,
No. 04-MD-1616, 2006 WL 8096533 (D. Kan. June 9, 2006)...................................................... 8
In re Wellbutrin XL,
268 F.R.D. 539 (E.D. Pa. 2010)..................................................................................................... 5
James v. UMG Recordings,
No. 11-1613-SI, 2012 WL 4859069 (N.D. Cal. Oct. 11, 2012) .................................................. 10
Mashek v. Silberstein,
20 F.R.D. 421 (S.D.N.Y. 1957) ..................................................................................................... 5
McConnell v. Red Robin Int’l,
No. 11-3026-WHA, 2012 WL 1357616 (N.D. Cal. Apr. 17, 2012) ............................................ 10
Nilon v. Natural-Immunogenics Corp.,
No. 12-930, 2014 WL 3779006 (S.D. Cal. July 31, 2014) ............................................................ 5
Pappas v. Naked Juice Co.,
No. 11-8276, 2012 WL 12248744 (C.D. Cal. Dec. 7, 2012) ......................................................... 5
Roberts v. Electrolux Home Prods.,
No. 12-1644, 2013 WL 4239050 (C.D. Cal. Aug. 14, 2013) ........................................................ 9
Sherman v. Yahoo! Inc.,
No. 13-0041, 2015 WL 473270 (S.D. Cal. Feb. 5, 2015)................................................ 5, 7, 8, 10
U.S. ex rel. Meyer v. Horizon Health Corp.,
No. 00-1303, 2006 WL 1490216 (N.D. Cal. May 25, 2006)......................................................... 9
Waller v. Fin. Corp. of Am.,
828 F.2d 579 (9th Cir. 1987) ..................................................................................................... 2, 9
Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011)................................................................................................................... 7

28
i

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1
2
3
4
5
6
7

Statutes
Cal. Penal Code § 631 ............................................................................................................................ 2
Rules
Civil Local Rule 30-1 ............................................................................................................................. 4
Fed. R. Civ. P. 21 ................................................................................................................................... 4
Fed. R. Civ. P. 23 ................................................................................................................................. 11
Fed. R. Civ. P. 30 ............................................................................................................................... 1, 9
Fed. R. Civ. P. 41 ............................................................................................................................... 4, 9

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

I.

1
2

INTRODUCTION AND SUMMARY OF ARGUMENT

Defendant Facebook, Inc. respectfully requests that the Court order Plaintiff David Shadpour

3

to sit for his noticed deposition and complete the document production that he promised in early

4

March 2015 before he is dismissed and/or permitted to withdraw from this action.

5

This is a modest imposition and a routine condition that courts regularly impose before

6

permitting the withdrawal of named plaintiffs in putative class actions. Here, Plaintiffs have offered

7

no justification to excuse Mr. Shadpour from his discovery obligations, and there are compelling

8

grounds for requiring his compliance:

9

•

At the time of the briefing before Magistrate Judge James, Mr. Shadpour was (and still is)
a party to this case. Federal Rule of Civil Procedure 30 authorizes the deposition of any
party, and the Ninth Circuit requires a “strong showing . . . before a party will be denied
entirely the right to take a deposition.” (Infra p. 5.)

•

Plaintiffs have made no such showing here (let alone a “strong showing”)—at no point
during this dispute have Plaintiffs offered any evidence explaining why Mr. Shadpour
cannot complete his document production and sit for the noticed deposition, which
Facebook is willing to take at a mutually convenient time in Mr. Shadpour’s hometown.

•

Mr. Shadpour has served substantial affirmative discovery on Facebook, and he (along
with his fellow named plaintiffs) even served two additional sets of document requests
after his counsel indicated that he intended to withdraw from this action and after
Facebook sought to compel his deposition and document production.

•

Instead of seeking an order from this Court to dismiss Mr. Shadpour, Plaintiffs sought this
relief through the procedurally improper means of Facebook’s discovery letter brief,
which caused Magistrate Judge James to refer the issue to this Court and which further
delayed Facebook’s ability to secure basic discovery from Plaintiffs in this case.

10
11
12
13
14
15
16
17
18
19
20

In their Motion, Plaintiffs assert (without any supporting evidence) that the “testimony,

21

discovery responses, or documents that Mr. Shadpour might possess are equally available from the

22

other Plaintiffs.” (Dkt. 96 at 5.) But this conclusory assertion ignores both the law and the facts—

23

first, it misstates the law by assuming the answer to the Rule 23 inquiry that this Court must conduct;

24

and second, the evidence and testimony provided to date reveals varying degrees of the named

25

plaintiffs’ usage and understanding of Facebook (including the Facebook Messages product at issue

26

in this case). In particular, Mr. Shadpour’s limited discovery responses to date reveal that he sent and

27

received Facebook messages containing URLs even after filing his initial (and distinct) complaint in

28

these consolidated actions, and that Mr. Shadpour used other social networking and/or email services
1

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

that purportedly “scan” messages during the class period (which is relevant to the issue of implied

2

consent). Accordingly, Mr. Shadpour possesses information relevant to the parties’ claims and

3

defenses in this case, and Facebook is entitled by Rule to his deposition and document production.

4

Moreover, Facebook need not show that it would suffer “plain legal prejudice” before it is

5

permitted to take this routine discovery from a party, and the case Plaintiffs cite (Waller v. Fin. Corp.

6

of Am., 828 F.2d 579 (9th Cir. 1987)) stands for no such proposition. Nonetheless, Facebook’s

7

efforts to gather evidence to oppose Plaintiffs’ forthcoming motion for class certification would be

8

impaired if Mr. Shadpour, who filed suit against Facebook more than 18 months ago, were allowed to

9

withdraw from the case without satisfying his minimal discovery obligations. In sum, district courts

10

in this Circuit regularly require named plaintiffs to sit for depositions in putative class actions before

11

dismissal or withdrawal, and Facebook respectfully requests that relief here.

12

II.

STATEMENT OF ISSUE TO BE DECIDED

13

Should this Court require Plaintiff David Shadpour to complete his promised document

14

production and noticed deposition before granting his request to withdraw from the case, which

15

conditions courts regularly impose pursuant to Federal Rules of Civil Procedure 21 and 41(a)(2)?

16

III.

FACTUAL BACKGROUND

17

In this putative class action, Plaintiffs allege that for a certain period of time up to 2012, when

18

a Facebook user sent a “private message” to another user that included a link to a website (a Uniform

19

Resource Locator, or “URL”), Facebook “scanned” the URL and then increased the aggregate “Like”

20

count displayed on that webpage. (Dkt. 25 ¶ 2.) Plaintiffs contend that this alleged “scanning”

21

violates the federal Wiretap Act and Cal. Penal Code Section 631. (Id.) Two of the named plaintiffs

22

(Matthew Campbell and Michael Hurley) filed their initial complaint on December 30, 2013, and the

23

third Plaintiff (David Shadpour) filed a separate lawsuit on January 21, 2014. This Court

24

consolidated the actions, appointed interim class counsel, and ordered the filing of a consolidated

25

complaint. (Dkt. 17, 24, 25.) Mr. Shadpour’s attorneys at Pomerantz, LLP were appointed as part of

26

“Plaintiffs’ Executive Committee” and “Interim Class Counsel” on April 15, 2014. (Dkt. 24.)

27
28
Gibson, Dunn &
Crutcher LLP

After this Court’s ruling that granted in part and denied in part Facebook’s Motion to Dismiss
(Dkt. 43), the parties exchanged written discovery requests. Along with the two other named
2
DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

plaintiffs, Mr. Shadpour has served substantial discovery on Facebook, including three sets of

2

document requests (60 total requests), two sets of interrogatories, and one set of requests for

3

admission. (Dkt. 89.) Plaintiffs also have insisted on examining Facebook’s source code, which

4

Facebook ultimately agreed to provide (notwithstanding its concerns and the proprietary nature of

5

this code) in order to avoid a protracted discovery dispute over this issue. (Dkt. 92.) The discovery

6

served on Mr. Shadpour has been comparatively minimal—one set of Requests for Production of

7

Documents, one set of Interrogatories, and a deposition notice. Mr. Shadpour provided responses to

8

Facebook’s document requests on March 9, 2015, in which he promised to “produce any responsive,

9

non-privileged documents in his possession, custody, or control, if any” in response to all of

10

Facebook’s Document Requests (Declaration of Christopher Chorba ¶ 7 & Ex. 4), but he has yet to

11

produce a single document in response to those requests.

12

On March 17, 2015, Plaintiffs’ counsel informed Facebook that Mr. Shadpour intended to

13

seek permission to withdraw from the case. (Id. ¶ 2.) Facebook responded that it would evaluate the

14

request, but that it could not stipulate to Mr. Shadpour’s withdrawal unless and until he responded to

15

the outstanding discovery requests, produced documents, and sat for a deposition. (Id.) Two weeks

16

later, in early April, Mr. Shadpour served his responses to Facebook’s interrogatories. (Id. ¶ 8,

17

Ex. 5.) The parties continued to discuss this issue, and Facebook confirmed that it would require

18

Mr. Shadpour’s deposition and complete document production before it would agree to stipulate to

19

his dismissal from the action. (Id. ¶¶ 4-5.) Facebook then served a proposed notice for the named

20

plaintiffs’ depositions (including Mr. Shadpour) in mid-April (id. ¶ 3 & Ex. 1), and two weeks later

21

(and three days after Plaintiffs served Supplemental Initial Disclosures reiterating that Mr. Shadpour

22

was in possession of relevant information), Plaintiffs’ counsel sent a draft stipulation to dismiss

23

Mr. Shadpour from the case (id. ¶ 4 & Ex. 2). Facebook again explained that it could not stipulate to

24

the dismissal unless Mr. Shadpour agreed to produce the documents that he agreed to produce in his

25

written discovery responses, and sit for the noticed deposition. (Id.) Plaintiffs’ counsel did not file

26

any motion to dismiss Mr. Shadpour (id. ¶ 5), and Facebook sought dates for his deposition on at

27
28
3

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

least six separate occasions in May (id. ¶ 3). 1 During this time, Mr. Shadpour (along with his co-

2

Plaintiffs) continued to serve additional discovery on Facebook, including additional document

3

requests served on May 26, 2015 (after his counsel notified Facebook that Mr. Shadpour intended to

4

withdraw), and even more document requests on June 29, 2015 (after the parties briefed Facebook’s

5

motion to compel his deposition and document production). (Id. ¶ 6.)

6

The parties were unable to resolve this dispute, and pursuant to the Court’s Discovery

7

Standing Order, they submitted a joint discovery letter brief to Magistrate Judge James on June 18,

8

2015 (Dkt. 89), in which Facebook requested an order compelling Mr. Shadpour’s deposition and

9

responses to the outstanding discovery requests. In their portion of the brief, Plaintiffs improperly

10

sought an order from Magistrate Judge James dismissing Mr. Shadpour from this action. (Id.) On

11

July 2, 2015, Magistrate Judge James issued the following order:

12

17

Pending before the Court is the parties’ Joint Discovery Letter, in which
Plaintiffs seek an Order allowing co-Plaintiff David Shadpour to withdraw from
the case pursuant to Federal Rules of Civil Procedure 21 or 41(a)(2), while
Defendant Facebook Inc. seeks an Order compelling Mr. Shadpour to sit for
deposition and provide discovery responses to outstanding requests before
withdrawing from this action. Dkt. No. 89. Having reviewed the parties’
requests, the undersigned finds these matters go beyond the scope of the
discovery referral in this case and are therefore DENIED WITHOUT
PREJUDICE to Plaintiffs noticing a motion before the presiding judge, the
Honorable Phyllis J. Hamilton, pursuant to Civil Local Rule 7.

18

(Dkt. 94.) Plaintiffs have now filed a motion to dismiss Mr. Shadpour without prejudice, and without

19

any requirement that he complete his promised document production and requested deposition.

13
14
15
16

20

IV.

21

THE COURT SHOULD REQUIRE MR. SHADPOUR TO COMPLY WITH HIS
DISCOVERY OBLIGATIONS BEFORE PERMITTING HIS WITHDRAWAL
Facebook is entitled, and has been entitled for several months, to Mr. Shadpour’s responsive

22
23

documents and his deposition pursuant to the Federal Rules of Civil Procedure. Rule 30(a)

24

authorizes the deposition of any party, and the Ninth Circuit requires a “strong showing . . . before a

25

Accordingly, the only reason that “[n]o date for such a deposition has been set” (Dkt. 96 at 3:2-3)
is because Plaintiffs’ counsel refused to provide one in response to Facebook’s multiple inquiries.
And, pursuant to Civil Local Rule 30-1, Facebook was required to meet and confer with Plaintiffs’
counsel regarding proposed dates before serving a formal deposition notice with a specific date.
Plaintiffs’ counsel should not be permitted to use Facebook’s compliance with this Local Rule as a
basis for precluding the noticed deposition.

26
27
28

1

4

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

party will be denied entirely the right to take a deposition.” Blankenship v. Hearst Corp., 519 F.2d

2

418, 429 (9th Cir. 1975). Plaintiffs have made no such showing at all—at no point in the briefing

3

before Magistrate Judge James or in their moving papers before this Court have they offered a

4

declaration or any other evidence from Mr. Shadpour attesting to any burdens he would face in sitting

5

for deposition or completing his promised document production. Facebook has offered to take

6

Mr. Shadpour’s deposition in his hometown of Los Angeles at a mutually convenient time. (Chorba

7

Decl. ¶ 3.) At the time of the briefing before Magistrate Judge James, and as of this filing,

8

Mr. Shadpour is still a party to this lawsuit, and “[i]t is beyond dispute that Defendant[] [is] entitled

9

to take the deposition of a party.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-

10

2757, 2011 WL 5865059, at *1 (D. Colo. Nov. 22, 2011).

11

The district courts in this Circuit routinely require that class representatives sit for deposition,

12

even if they seek to withdraw from a lawsuit. See, e.g., Fraley v. Facebook, Inc., No. 11-1726-LHK,

13

2012 U.S. Dist. LEXIS 21501, at *6-10 (N.D. Cal. Feb. 21, 2011) (ordering deposition of plaintiff

14

seeking dismissal); Dysthe v. Basic Research, LLC, 273 F.R.D. 625, 628-30 (C.D. Cal. 2011)

15

(ordering the deposition of named plaintiff who sought withdrawal, in part because he had been a

16

plaintiff since the beginning of the suit and through several amendments to complaint and because his

17

anticipated testimony was relevant to both class certification issues and the merits of the plaintiffs’

18

claims); Pappas v. Naked Juice Co., No. 11-8276, 2012 WL 12248744, at *1, *3 (C.D. Cal. Dec. 7,

19

2012) (ordering deposition of named plaintiff/putative class representative who sought to dismiss his

20

claims with prejudice); Sherman v. Yahoo! Inc., No. 13-0041, 2015 WL 473270, at *7 (S.D. Cal.

21

Feb. 5, 2015) (holding that a named plaintiff’s withdrawal “should be conditioned on [the defendant]

22

being entitled to depose” him); Nilon v. Natural-Immunogenics Corp., No. 12-930, 2014 WL

23

3779006, at *4 (S.D. Cal. July 31, 2014) (ordering deposition of named plaintiff/putative class

24

representative who sought to substitute a new plaintiff). 2

25
26
27
28

See also Funke v. Life Fin. Corp., No. 99-11877, 2003 WL 21182763, at *2-3 (S.D.N.Y. May 20,
2003) (ordering deposition of withdrawing plaintiff); Mashek v. Silberstein, 20 F.R.D. 421, 422
(S.D.N.Y. 1957) (same); In re Wellbutrin XL, 268 F.R.D. 539, 544 (E.D. Pa. 2010) (conditioning
dismissal upon compliance with discovery by plaintiff who filed one of the original complaints).
2

5

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

Fraley is directly on point. In that right of publicity case against Facebook, one named

2

plaintiff (Fraley) sought to withdraw “at least in part based on privacy concerns and potential

3

embarrassment that she will suffer by her ‘posts or decisions regarding pages or posts where [she]

4

click[ed] “Like” on Facebook’ being made public in the class certification motion.” 2012 U.S. Dist.

5

LEXIS 21501, at *3. In response, Facebook cited Ms. Fraley’s status as a named plaintiff and the

6

relevance of her testimony to plaintiffs’ motion for class certification. Id. at *4. The court ordered

7

the deposition because the existing protective order was sufficient to address any privacy concerns,

8

and “[i]f anything, the fact that Fraley may soon be dismissed from the lawsuit makes even more

9

relevant Facebook’s discovery into the basis for Fraley’s allegations that will be a part of the record

10
11

in this case.” Id. at *7-9.
Similarly, in Dysthe, one of the original named plaintiffs sought to dismiss his claims with

12

prejudice because “he [did] not wish to subject himself to the ‘rigor of litigation,’ including discovery

13

requests involving personal information.” 273 F.R.D. at 627. Defendant sought to compel the named

14

plaintiff’s deposition, and the plaintiff sought to voluntarily dismiss his claims with prejudice. Id.

15

The plaintiff in Dysthe contended that he should not be subject to deposition because by withdrawing

16

from the case, he would no longer serve as a putative class member, and the defendant would not

17

suffer any prejudice. Id. at 627-28. (Here, by contrast, Mr. Shadpour seeks to dismiss his claims

18

without prejudice, and share in any classwide recovery. (Dkt. 96 at 1.)) The district court in Dysthe

19

compelled the plaintiff’s deposition, because although his “dismissal may be likely, it is not

20

automatic,” and the defendant was “certainly entitled” to depose a party pursuant to Rule 30(a). Id.

21

at 628. Further, the plaintiff “claims to have been a consumer of the products challenged by Plaintiffs

22

in this lawsuit,” and “[h]is testimony regarding his experience with [those products] is therefore

23

highly likely to be relevant to class certification issues, including commonality and the typicality of

24

the class representative’s claims, even if he no longer wishes to be burdened with this litigation.” Id.

25

at 629 (citing the plaintiff’s “unique status” as a named plaintiff “since the filing of the original

26

Complaint” and “through several amendments of the Complaint,” and the defendant “properly

27

noticed [plaintiff]’s deposition before [plaintiff] filed his motion for voluntary dismissal”).

28
Gibson, Dunn &
Crutcher LLP

In contrast to the plaintiffs in Fraley and Dysthe, Plaintiffs here do not offer any evidence
6

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

from Mr. Shadpour or any explanation for why he seeks to withdraw, other than their conclusory

2

statement that he “no longer seeks to carry on the duties and obligations as a class representative.”

3

(Dkt. 96 at 1.) Plaintiffs also assert that any evidence regarding Mr. Shadpour is common and

4

“equally available” from the other putative class representatives. (Id. at 5.) But they have not

5

supported this conclusory assertion with any evidence—nor could they, given Mr. Shadpour’s refusal

6

to produce documents or sit for deposition.

7

Additionally, Plaintiffs’ entire argument assumes the answer to the very inquiry that must be

8

conducted—through a “rigorous analysis”—pursuant to Rule 23(a). Wal-Mart Stores, Inc. v. Dukes,

9

131 S. Ct. 2541, 2551 (2011). Plaintiffs cannot simply announce that they are all similarly situated,

10

declare this key Rule 23 issue undisputed, and thereby foreclose Facebook’s right to discover grounds

11

to oppose class certification. As the Supreme Court has held, “Rule 23 does not set forth a mere

12

pleading standard,” and the moving party must establish through evidence all of the elements of this

13

Rule. Id. As one district court observed, the Federal Rules “clearly provide that parties may obtain

14

discovery regarding matters relevant to the action . . . [and] commonality is an issue that is relevant to

15

Plaintiffs’ class certification efforts.” Dysthe, 273 F.R.D. at 628-29. As a named plaintiff and

16

putative class member, Mr. Shadpour’s testimony is relevant to the parties’ claims and defenses. See,

17

e.g., Sherman, 2015 WL 473270, at *7 (the withdrawing plaintiff’s “testimony regarding his

18

experience with [defendant] is likely to be relevant to class certification issues”); Dysthe, 273 F.R.D.

19

at 630 (a putative class representative’s deposition testimony is “relevant to the commonality and the

20

typicality of the class representative’s claims, whether or not [the withdrawing plaintiff] is himself a

21

putative or absent class member”). 3

22
23
24
25
26
27
28

Plaintiffs also selectively quote portions of the parties’ Joint Case Management Statement
(Dkt. 96 at 5) to suggest that Facebook somehow conceded that the evidence regarding the named
plaintiffs is “common.” This contention omits Facebook’s explicit and repeated position in that very
Joint Statement that this case is not amenable to class certification because, among other reasons, the
issue of consent, “which is a complete defense [to Plaintiffs’ claims] under both [the Wiretap Act and
the California Invasion of Privacy Act], is an inherently ‘individualized’ issue that will ‘overwhelm
any common questions.’” (Dkt. 60 at 5-6, 8, 12 (quoting In re Google Inc. Gmail Litig., No. 13-MD02430, 2014 U.S. Dist. LEXIS 36957, at *66-67 (N.D. Cal. Mar. 18, 2014).) Plaintiffs may disagree
with this position, but they cannot credibly contend that Facebook has not preserved it, and their
disagreement with it simply underscores why Facebook is entitled to discovery to support its position.
3

7

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

Mr. Shadpour’s discovery responses also indicate that he has information relevant to class

2

issues and the merits of Plaintiffs’ allegations. Specifically, in his written responses, Mr. Shadpour

3

stated that he “will produce any responsive, non-privileged documents in his possession, custody, or

4

control, if any” in response to all of Facebook’s Document Requests. (Chorba Decl., Ex. 4.) To date,

5

however, he has not produced any documents. (Id. ¶ 7.) And his interrogatory responses reveal that

6

Mr. Shadpour sent and received Facebook messages containing URLs even after filing his initial (and

7

distinct) complaint in these consolidated actions, and that he used other social networking and/or

8

email services that purportedly “scan” messages during the class period (which is relevant to the issue

9

of implied consent). (Id. ¶ 8, Ex. 5.) Moreover, in Plaintiffs’ Supplemental Initial Disclosures served

10

on April 27, 2015, Plaintiffs admitted that “Mr. Shadpour has knowledge of facts surrounding his

11

own use of Facebook’s private messages product, and Facebook’s representations to him, as alleged

12

in the [Consolidated Amended Complaint].” (Id. ¶ 9, Ex. 6 at 2-3.) In those same disclosures,

13

Plaintiffs contended that under one of the “multiple potential mechanisms for calculating and

14

awarding damages under both ECPA [the Wiretap Act/Electronic Communications Privacy Act] and

15

CIPA [the California Invasion of Privacy Act],” “Mr. Shadpour . . . would seek statutory damages in

16

the amount of $10,000 [under ECPA] . . . and $5,000 in statutory damages under CIPA.” (Id. at 4.)

17

Any dismissal of Mr. Shadpour can and should be conditioned on providing his responsive

18

documents and relevant testimony. Where, as here, the defendant has answered the complaint, courts

19

may impose “terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). One frequent

20

condition is completing outstanding discovery obligations, including depositions. See, e.g., Fraley,

21

2012 U.S. Dist. LEXIS 21501, at *9; Dysthe, 273 F.R.D. at 629; Sherman, 2015 WL 473270, at *7.

22
23
24

Plaintiffs have cited only two cases (Dkt. 96 at 5-6) involving both a withdrawal request and a
deposition notice, but both are factually and/or legally inapposite:
•

The corporate plaintiff in In re Urethane Antitrust Litig., No. 04-MD-1616, 2006 WL

25

8096533, at *1-2 (D. Kan. June 9, 2006), offered evidence that it was “unable to protect the interests

26

of class members due to its financial difficulties” and defendants had already “obtained [the

27

plaintiff’s] documents.” Here, Mr. Shadpour has not offered any evidence of hardship, and he has

28

not produced any documents to date (despite his promise to do so in his written responses).
8

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

•

Similarly, the plaintiff in Roberts v. Electrolux Home Prods., No. 12-1644, 2013 WL

2

4239050, at *2 (C.D. Cal. Aug. 14, 2013), offered evidence of “personal and family health concerns.”

3

Once again, Mr. Shadpour has not offered any evidence of hardship that would prevent him from

4

sitting for deposition or completing his document production, and this failure is reason enough to

5

deny his request to excuse him from completing his discovery obligations. See, e.g., Aguilar v.

6

Boulder Brands, Inc., No. 12-01862, 2014 WL 4352169, at *11 (S.D. Cal. Sept. 2, 2014) (denying

7

the named plaintiff’s request for a protective order barring her from being deposed in part because

8

she “provid[ed] no detail on the nature and extent of” the purported health issues that she claimed

9

prevented her from sitting for deposition). Further, the court in Roberts also cited Dysthe, Fraley,

10

and Colo. Cross-Disab., noting that, “at best, these decisions stand for the proposition that a named

11

plaintiff cannot avoid the obligation to sit for a deposition merely by filing a request to withdraw.”

12

Id. That is the same relief sought here—Plaintiff Shadpour should not avoid his obligation pursuant

13

to Rule 30(a) to sit for deposition by seeking to withdraw from this action (an action he took only

14

after receiving the deposition notice and only after Facebook sought to compel his deposition from

15

Magistrate Judge James). Moreover, to the extent Roberts suggested that it is improper to condition a

16

named plaintiff’s withdrawal on the plaintiff’s completion of his or her discovery obligations, this

17

holding ignores the plain language of Rule 41(a)(2), which authorizes a dismissal conditioned on

18

“terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). The court in Roberts did not cite or

19

discuss Rule 41, which is the principal Rule upon which Plaintiffs rely in their Motion. 4

20
21

Plaintiffs’ remaining cases involved entirely distinct circumstances and did not even involve a
request for deposition:

22

•

Plaintiffs’ citation to Waller v. Fin. Corp. of Am., 828 F.2d 579 (9th Cir. 1987), is

23
24
25
26
27
28

Plaintiffs also cite the court decision in U.S. ex rel. Meyer v. Horizon Health Corp., No. 00-1303,
2006 WL 1490216 (N.D. Cal. May 25, 2006) (Dkt. 96 at 3, 5), but that brief decision does not
indicate that there were any pending discovery requests directed at the withdrawing plaintiff.
Further, that plaintiff offered “valid medical reasons” for her withdrawal, and the court noted that the
defendant could use third-party subpoenas to obtain the information it needed. Id. at *1. Again,
Plaintiffs have not explained why Mr. Shadpour cannot sit for his deposition and provide responsive
documents, they cannot claim that Facebook may obtain his information from other sources, and they
have not offered to provide the requested discovery in response to a third-party subpoena.
4

9

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

misleading. The legal issue in that case was whether a corporation’s accountant had standing to

2

object to a securities settlement, and the selected excerpt quoted in Plaintiff’s Motion (Dkt. 96 at 4

3

(“a district court should grant a motion for voluntary dismissal unless a defendant can show that it

4

will suffer some plain legal prejudice as a result”)) addressed the dismissal of entire lawsuits, not

5

parties. Obviously, Plaintiffs have not sought to dismiss their entire action; instead, they seek to

6

dismiss Mr. Shadpour as a party (and only without prejudice).

7

•

James v. UMG Recordings, No. 11-1613-SI, 2012 WL 4859069, at *2 (N.D. Cal.

8

Oct. 11, 2012), involved a Rule 15(a) motion to file a consolidated complaint that would have

9

dropped certain named plaintiffs and added others. Of course, Plaintiffs here had an opportunity to

10

file a Consolidated Amended Complaint (see Dkt. 25), and they made the decision to retain Mr.

11

Shadpour as a named plaintiff and putative class representative. Also, James did not involve a

12

pending request for a deposition.

13

•

McConnell v. Red Robin Int’l, No. 11-3026-WHA, 2012 WL 1357616, at *3 (N.D.

14

Cal. Apr. 17, 2012), involved the addition of a new named plaintiff on a noticed motion to amend the

15

complaint, not the withdrawal of a named plaintiff or a pending deposition notice.

16
17
18
19
20

V.
TO THE EXTENT IT GRANTS PLAINTIFFS’ REQUEST,
THE COURT SHOULD DISMISS MR. SHADPOUR’S CLAIMS WITH PREJUDICE
AND AMEND ITS INTERIM CLASS COUNSEL ORDER
Finally, if the Court permits Mr. Shadpour to withdraw from the case, it should impose two
further conditions (in addition to requiring his document production and deposition):
First, the Court should dismiss Mr. Shadpour’s claims with prejudice, and prevent him from

21

later attempting to sue Facebook in another similar action or later seeking to re-join this action as a

22

named plaintiff. See, e.g., Dysthe, 273 F.R.D. at 628 (addressing request by named plaintiff/class

23

representative to dismiss claims with prejudice); Sherman, 2015 WL 473270, at *4 (noting that

24

plaintiffs had expressly requested that the dismissal be conditioned on the named plaintiff refraining

25

from re-filing his individual claims against the defendant, so the defendant was not subject to the risk

26

of additional litigation). To the extent the Court permits Mr. Shadpour to remain in the putative

27

class, then it should permit Facebook to take his deposition as an absent class member. This was the

28
10

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

1

situation presented in Dysthe, and after analyzing the defendant’s right to the deposition of a “party”

2

pursuant to Rule 30(a), the district court concluded that “even if [the party seeking to withdraw] was

3

not a named plaintiff, Defendants have satisfied the heightened requirements applying to the

4

discovery of putative or absent class members” because his use of the products at issue rendered him

5

a “percipient witness” with relevant testimony. 273 F.R.D. at 629. “As such,” the court concluded,

6

“[his] testimony is therefore likely to be relevant to class certification issues.” Id.; id. at 630 (“These

7

experiences are relevant to the commonality and typicality of the class representative’s claims,

8

whether or not [the party seeking to withdraw] is himself a putative or absent class member.”).

9

Second, the Court should amend its Order Relating Actions and Appointing Interim Counsel

10

(see Dkt. 24, ¶¶ 2, 8) to remove Mr. Shadpour’s attorneys at Pomerantz, LLP from “Plaintiffs’

11

Executive Committee” and withdraw these attorneys from serving as “Interim Class Counsel”

12

pursuant to Rule 23(g)(2)(A). This additional condition should not be controversial; to Facebook’s

13

knowledge, these lawyers have had no substantive involvement in this case. (Chorba Decl. ¶ 10.)
VI.

14
15

CONCLUSION

The discovery burdens in any class action weigh more heavily on the defendant, but these

16

burdens are particularly asymmetrical in this case: All of the named plaintiffs—including

17

Mr. Shadpour—have sought substantial discovery from Facebook, while the burdens on the named

18

plaintiffs have been comparatively minimal. Plaintiffs have offered no legal or factual justification

19

for excusing Mr. Shadpour from completing his document production and sitting for his noticed

20

deposition before his withdrawal from the case, and his documents and testimony indisputably are

21

relevant to class certification. Facebook respectfully requests that the Court require Mr. Shadpour to

22

complete his modest discovery obligations, dismiss his claims with prejudice, and amend its order to

23

remove his attorneys as interim class counsel in this case.

24

Dated: July 27, 2015

Respectfully submitted,

25

GIBSON, DUNN & CRUTCHER LLP

26

By:

27
28

/s/ Christopher Chorba
Christopher Chorba

Attorneys for Defendant FACEBOOK, INC.
11

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)