Campbell et al v. Facebook Inc.

Filing 105

REPLY (re 96 MOTION to Dismiss Claims and Withdraw David Shadpour as Putative Class Representative ) filed byMatthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Declaration of Melissa Gardner)(Gardner, Melissa) (Filed on 8/3/2015)

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1 2 3 4 5 6 7 8 9 10 11 Michael W. Sobol (State Bar No. 194857) msobol@lchb.com Melissa A. Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 16 Attorneys for Plaintiffs and the Proposed Class 18 Patrick V. Dahlstrom pdahlstrom@pomlaw.com POMERANTZ, LLP 10 S. La Salle Street, Suite 3505 Chicago, Illinois 60603 Telephone: 312.377.1181 Facsimile: 312.377.1184 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 17 Jeremy A. Lieberman Lesley F. Portnoy info@pomlaw.com POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212.661.1100 Facsimile: 212.661.8665 [Additional Counsel listed on Signature page] 12 13 14 15 19 UNITED STATES DISTRICT COURT 20 NORTHERN DISTRICT OF CALIFORNIA 21 22 23 MATTHEW CAMPBELL, MICHAEL HURLEY, and DAVID SHADPOUR, on behalf of themselves and all others similarly situated, Plaintiffs, 24 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO WITHDRAW PUTATIVE CLASS REPRESENTATIVE AND DISMISS CLAIMS WITHOUT PREJUDICE v. FACEBOOK, INC., Case No. C 13-05996 PJH 27 Defendant. Date: Time: Crtrm: Judge: September 9, 2015 9:00 a.m. 3, Third Floor Honorable Phyllis J. Hamilton 28 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 I. 2 INTRODUCTION Plaintiffs’ interim class counsel file this Reply in support of their motion for an order (i) 3 permitting putative Class representative David Shadpour to be dismissed as a party to this 4 litigation; (ii) withdrawing Mr. Shadpour’s claims without prejudice as to his rights as an absent 5 member of the putative Class; (iii) declaring that Mr. Shadpour need not appear for a noticed 6 deposition nor complete document production in this action; and (iv) prohibiting Defendant 7 Facebook, Inc. (“Facebook”) from propounding further discovery as to Mr. Shadpour. Facebook 8 has failed to establish that it will suffer any legal prejudice from such a result. Accordingly, 9 Plaintiffs’ interim class counsel respectfully submit that the Court should grant their motion. 10 11 12 13 II. ARGUMENT A. Facebook Has Not Established Plain Legal Prejudice Should Mr. Shadpour’s Claims Be Withdrawn Without Discovery Conditions The Ninth Circuit is clear: the standard for applying discovery conditions upon the 14 withdrawal of a putative class representative is demonstration by the defendant of “plain legal 15 prejudice.” “[A] district court should grant a motion for voluntary dismissal unless a defendant 16 can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 17 972, 975 (9th Cir. 2001) (quoting Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)). 18 Facebook has not established such prejudice. Neither Facebook’s assertion that Mr. Shadpour 19 may have information “relevant” to Facebook’s opposition to class certification (Defendant 20 Facebook, Inc.’s Opposition to Plaintiffs’ Motion to Withdraw Plaintiff David Shadpour Without 21 Prejudice (“Facebook’s Opposition”), at 8) nor its claims of Mr. Shadpour’s continued use of the 22 Facebook messaging product at issue in this litigation support the requisite showing. 23 Indeed, the authorities cited in Facebook’s Opposition frame their analysis with the “plain 24 legal prejudice” standard. See Fraley v. Facebook, Inc., No. 11-01726, 2012 WL 893152, at *3 25 (N.D. Cal. Mar. 13, 2012) (“The Ninth Circuit has held that a Rule 41(a)(2) motion for voluntary 26 dismissal should be granted ‘unless a defendant can show that it will suffer some plain legal 27 prejudice as a result.’”) (quoting Smith); Sherman v. Yahoo! Inc., No. 13-0041, 2015 WL 473270, 28 at *7 (S.D. Cal. Feb. 5, 2015) (“[T]he inability to conduct sufficient discovery for a defense can 1 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 amount to legal prejudice. . . A court may, but need not, condition a Rule 41(a)(2) dismissal on a 2 plaintiff’s deposition or production of discovery.”); Pappas v. Naked Juice Co. of Glendora, No. 3 11-8276, 2012 WL 12248744, at *2 n.2 (C.D. Cal. Dec. 7, 2012) (applying “plain legal prejudice” 4 standard to ascertain whether withdrawal of named plaintiff should be conditioned on additional 5 discovery). 6 In the Ninth Circuit, “‘legal prejudice’ means ‘prejudice to some legal interest, some legal 7 claim, some legal argument.’” Sherman, at *2 (quoting Smith). The court in Roberts v. 8 Electrolux Home Prods., Inc., No. 12-1644, 2013 U.S. Dist. LEXIS 115870 (C.D. Cal. Aug. 14, 9 2013), applied this standard. While not expressly citing Federal Rule of Civil Procedure 41, the 10 court relied upon In re Vitamins Antitrust Litig—Id. at *4 (citing 198 F.R.D. 296, 304 (D.D.C. 11 2000) (“[i]n federal practice, [under Federal Rule of Civil Procedure 41], voluntary dismissals 12 sought in good faith are generally granted ‘unless the defendant would suffer prejudice other than 13 the prospect of a second lawsuit or some tactical advantage.’”)—and Doe v. Arizona Hosp. & 14 Healthcare Ass’n—Id. (citing 2009 WL 1423378, at *13 (D. Ariz. Mar. 19, 2009) (applying the 15 same standard under Federal Rule of Civil Procedure 41, granting motion for dismissal of 16 putative Class representative’s claims, without discovery conditions)). 17 In an attempt to turn the relevant standard on its head, Facebook relies on Federal Rule of 18 Civil Procedure 30(a) which authorizes the depositions of parties. Mr. Shadpour would no longer 19 be a party to this litigation if Facebook had stipulated to his withdrawal without unnecessary 20 discovery conditions, as Plaintiffs’ counsel requested months before Facebook initiated a letter 21 brief to compel Mr Shadpour’s deposition, and necessitated the involvement of this Court. 22 Facebook also relies upon inapposite cases that were decided in the context of a motion for a 23 protective order by a named plaintiff who had not yet formally sought to withdraw from the case. 24 See e.g., Pappas v. Naked Juice Co. of Glendora, No. 11-8276, 2012 WL 12248744, at *3 (C.D. 25 Cal. Dec. 7, 2012) (denying, in part, motion for protective order who stated he had not sought to 26 withdraw because he was still negotiating a stipulation for dismissal with defense counsel). 27 28 Here, like the defendants in Electrolux, and Arizona Hospital, no “plain legal prejudice” to Facebook’s defenses would result if Facebook is not allowed to condition Mr. Shadpour’s 2 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 withdrawal on his deposition and additional discovery. Facebook incorrectly contends that it 2 needs Mr. Shadpour’s document production and deposition testimony in order to defend against 3 the upcoming motion for class certification. To establish plain legal prejudice in this context, a 4 defendant must show that without the discovery sought, the plaintiff’s withdrawal would result in 5 an “inability to conduct sufficient discovery for a defense.” Sherman, 2015 WL 473270, at *7. 6 Facebook cannot demonstrate plain legal prejudice. Instead, Facebook claims that Mr. 7 Shadpour, who no longer seeks to represent the Class, may have information “relevant” to 8 Facebook’s opposition to class certification. (Facebook Opposition at 8). Substantively, 9 Facebook points to indications that Mr. Shadpour continued to use the Facebook messaging 10 product and other social media after filing his complaint (as, for example, did Plaintiff Matthew 11 Campbell), and to the Plaintiffs’ common allegations regarding Facebook’s public disclosures 12 about private messages. As discussed in the opening brief on this motion, that is not the type of 13 individualized, otherwise unobtainable, information that defendants have been entitled to obtain 14 from withdrawing plaintiffs in cases like Dysthe v. Basic Research, LLC, 273 F.R.D. 625, (C.D. 15 Cal. 2011); Fraley v. Facebook, Inc., No. 11-1726, 2012 WL 555071 (N.D. Cal. Feb. 21, 2012) 16 (Grewal, M.J.); and Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-02757, 17 2011 WL 5865059 (D. Colo. Nov. 22, 2011). Rather, the generalized information that Facebook 18 purports to need from Mr. Shadpour regarding putative Class members’ use of Facebook and 19 other social media has already been obtained from Plaintiffs Campbell and Hurley during their 20 depositions on June 19 and July 9, respectively. 21 Facebook relies on authority that is both procedurally and substantively inapposite. Nilon 22 v. Natural-Immunogenics Corporation, for example, concerned a defendant’s motion to compel 23 the deposition of the sole lead plaintiff extremely late in the litigation—after the fact discovery 24 deadline had passed—and who had failed to appear for, or canceled, his noticed deposition 25 several times over the course of fourteen months before the defendant filed the motion to compel. 26 No. 12- 00930, 2014 WL 3779006, at *1-*3 (S.D. Cal. July 31, 2014). Unlike this case, where 27 the record reflects interim Class counsel’s efforts to dismiss Mr. Shadpour’s claims by agreement 28 going back to the first months of fact discovery, in Nilon, Plaintiff’s counsel provided “no 3 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 explanation” for why they did not seek to substitute a new named plaintiff until after the 2 defendant brought a motion to compel. Id. at *4. Likewise, Funke v. Life Financial Corporation 3 also does not support Facebook here. No. 99-11877, 2003 WL 21182763 (S.D.N.Y. May 20, 4 2003). Funke concerned enforcement of an existing order to appear for a deposition against a 5 lead plaintiff whose deposition had been ordered before the plaintiff filed a notice of withdrawal, 6 and who had made “no mention” of his intent to withdraw when the issue had been briefed just 7 weeks before. Id. at *2. 8 B. 9 Facebook’s Claim That Discovery Has Been Asymmetrical Is Neither Correct Nor Availing 10 Contrary to Facebook’s claim that discovery in this action has been “asymmetrical,” 11 (Facebook Opposition at 11) the discovery propounded by Facebook has been exceptionally 12 invasive and burdensome. In this case brought to enforce the right to privacy in private 13 correspondence, Plaintiffs Campbell and Hurley have responded to Facebook’s document 14 requests by producing partially redacted copies of all of the non-privileged private messages 15 containing URLs stored in their password-protected Facebook accounts. Declaration of Melissa 16 Gardner (“Gardner Decl.”), ¶ 2. For Mr. Campbell, this required divulging nearly 200 pages of 17 personal correspondence. Id. ¶ 3. In response to Facebook’s Interrogatories, they provided not 18 only the names of the friends and acquaintances with whom they had shared these private 19 communications, but also links to those absent Class members’ Facebook profiles. Id. ¶ 4. 20 Subsequently, in July 2015, Facebook served subpoenas on four of those parties, noticing the 21 depositions of two individuals who had sent or received messages from Mr. Campbell, and of two 22 who had sent or received messages from Mr. Hurley.1 Id. ¶ 5. 23 Facebook has failed to show why, given that Mr. Shadpour has made no unique 24 allegations in the operative Complaint, and no longer seeks to represent the Class, Facebook 25 cannot make its implied consent or other arguments against class certification without obtaining 26 additional specific details about Mr. Shadpour’s private messaging history, contacts, and use of 27 1 28 Three of those depositions are scheduled to take place in the first two weeks of August. Gardner Dec. ¶ 6. 4 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 social media. Thus, Facebook has not met its burden to show that Mr. Shadpour’s dismissal 2 without discovery conditions would result in plain legal prejudice to its legal arguments, claims, 3 or defenses. Smith, 263 F.3d at 976. 4 III. CONCLUSION 5 Accordingly, for the foregoing reasons and for the reasons stated in their opening brief, 6 Plaintiffs’ interim Class counsel respectfully request that this Court dismiss Mr. Shadpour as a 7 party, and deny Facebook’s request that such dismissal be conditioned upon his deposition or any 8 additional discovery responses. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Dated: August 3, 2015 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP By: /s/ Melissa A. Gardner Melissa A. Gardner Michael W. Sobol (State Bar No. 194857) msobol@lchb.com Melissa A. Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 20 21 22 23 24 25 26 27 28 6 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH 1 2 3 4 Jeremy A. Lieberman Lesley F. Portnoy info@pomlaw.com POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: 212.661.1100 Facsimile: 212.661.8665 5 6 7 8 Patrick V. Dahlstrom pdahlstrom@pomlaw.com POMERANTZ, LLP 10 S. La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: 312.377.1181 Facsimile: 312.377.1184 9 10 11 12 Jon Tostrud (State Bar No. 199502) jtostrud@tostrudlaw.com TOSTRUD LAW GROUP, PC 1925 Century Park East, Suite 2125 Los Angeles, CA 90067 Telephone: 310.278.2600 Facsimile: 310.278.2640 13 14 Attorneys for Plaintiffs and the Proposed Class 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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