Campbell et al v. Facebook Inc.

Filing 109

MOTION for Extension of Time to File Plaintiffs' Motion for Extension of Class Certification and Summary Judgment Deadlines filed by Matthew Campbell, Michael Hurley. (Attachments: # 1 Proposed Order, # 2 Declaration of David Rudolph, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21)(Sobol, Michael) (Filed on 9/16/2015)

EXHIBIT 19

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street Suite 3505
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: 312.377.1184

Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: 212.661.8665

Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR, on
behalf of themselves and all others
similarly situated,

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Case No. C 13-5996 PJH
PLAINTIFFS’ THIRD SET OF REQUESTS
FOR PRODUCTION OF DOCUMENTS TO
DEFENDANT

Plaintiffs,
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v.
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FACEBOOK, INC.,
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Defendant.
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, the Plaintiffs request

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that Defendant Facebook respond to the following requests for the production of Documents

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(each, a “Request,” collectively the “Requests”) within thirty (30) days of service.

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DEFINITIONS
(a)

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“Action” means the case captioned Matthew Campbell et al. v. Facebook, Inc.; Case No.
C 13-5996 PJH (N.D. Cal.).

(b)

“Communication” means the conveyance (in the form of facts, ideas, thoughts, opinions,

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data, inquiries or otherwise) of information and includes, without limitation,

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correspondence, memoranda, reports, presentations, face-to-face conversations, telephone

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conversations, text messages, instant messages, voice messages, negotiations, agreements,

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inquiries, understandings, meetings, letters, notes, telegrams, mail, email, and postings of

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any type.

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(c)

“Document(s)” means all materials within the full scope of Fed. R. Civ. P. 34 including

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but not limited to: all writings and recordings, including the originals, drafts and all non-

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identical copies, whether different from the original by reason of any notation made on

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such copies or otherwise (including but without limitation to, email and attachments,

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correspondence, memoranda, notes, diaries, statistics, letters, telegrams, minutes,

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contracts, reports, studies, checks, statements, tags, labels, invoices, brochures,

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periodicals, receipts, returns, summaries, pamphlets, books, interoffice and intra-office

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Communications, instant messages, chats, offers, notations of any sort of conversations,

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working papers, applications, permits, file wrappers, indices, telephone calls, meetings or

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printouts, teletypes, telefax, invoices, worksheets, and all drafts, alterations, modifications,

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changes and amendments of any of the foregoing), graphic or aural representations of any

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kind (including without limitation, photographs, charts, microfiche, microfilm, videotape,

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recordings, motion pictures, plans, drawings, surveys), and electronic, mechanical,

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magnetic, optical or electric records or representations of any kind (including without

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limitation, computer files and programs, tapes, cassettes, discs, recordings), including

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Metadata.
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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(d)

“Electronic Media” means any magnetic, optical, or other storage media device used to

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record or access ESI including, without limitation, computer memory, hard disks, floppy

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disks, flash memory devices, CDs, DVDs, Blu-ray disks, cloud storage (e.g., DropBox,

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Box, OneDrive, and SharePoint), tablet computers (e.g., iPad, Kindle, Nook, and Samsung

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Galaxy), cellular or smart phones (e.g., BlackBerry, iPhone, Samsung Galaxy), personal

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digital assistants, magnetic tapes of all types or any other means for digital storage and/or

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transmittal.

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(e)

“ESI” or “Electronically Stored Information” refers to information and Documents (as

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defined within this section) within the full scope of Fed. R. Civ. P. 34 – with all Metadata

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intact – created, manipulated, communicated, stored, and best utilized in digital form, and

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requiring the use of Electronic Media to access. Such information includes emails, email

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attachments, message boards, forums, support tickets, support articles, security alerts,

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pop-ups, videos, discussion boards, data, charts, BETA results, error messages, bug

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reports, source code, investigative reports, monitoring reports, comments, press releases,

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drafts, models, templates, websites, instant messages, chats, and intercompany and intra-

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company Communications.

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(f)

“Facebook User(s)” means Persons who have established a Facebook account.

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(g)

“Identify,” with respect to Documents, means to give, to the extent known, the (a) type

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of Document; (b) general subject matter; (c) date of the Document; (d) author(s), (e)

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addressee(s), and (f) recipient(s).

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(h)

“Identify,” with respect to Persons, means to give, to the extent known, the Person’s full

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name, present or last known address, and when referring to a natural person, additionally,

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the present or last known place of employment. Once a Person has been identified in

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accordance with this subparagraph, only the name of that Person need be listed in

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response to subsequent discovery requesting the identification of that Person.

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(i)

“Including” means “including but not limited to” and “including without limitation.”

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(j)

“Metadata” refers to structured information about an electronic file that is embedded in

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the file, describing the characteristics, origins, usage and validity the electronic file.
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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(k)

“Passive Likes” means any Likes that were not generated by Facebook Users

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affirmatively clicking on a Like button Social PlugIn, and were instead generated as a

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result of Facebook scanning URLs contained within Private Message (i.e., generated

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through the behavior described in the Wall Street Journal article “How Private Are Your

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Private Facebook Messages”).

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(l)

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“Person” means any natural person or any business, legal or governmental entity or
association.

(m)

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“Plaintiff” and “Plaintiffs” refer to the named plaintiffs in this Action, and any reference
to “Plaintiff” or “Plaintiffs” shall be construed disjunctively or conjunctively as necessary

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in order to bring within the scope of the request all responses which otherwise might be

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construed to be outside its scope.

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(n)

“Private Message(s)” means the portion of Facebook’s service designed to transmit

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private messages between Facebook Users – as opposed to posts – and which process is

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engaged by, inter alia, the “Message” button on Facebook Users’ profile pages or via the

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Messenger app.

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(o)

“Relate(s) to,” “Related to” or “Relating to” shall be construed to mean referring to,

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reflecting, concerning, pertaining to or in any manner being connected with the matter

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discussed.

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(p)

“Third Party” refers to any party other than You or Plaintiffs.

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(q)

“You,” “Your,” and “Facebook” shall mean Facebook, Inc. and any of its directors,

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officers, employees, partners, members, representatives, agents (including attorneys,

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accountants, consultants, investment advisors or bankers), and any other person purporting

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to act on its behalf. In the case of business entities, these defined terms include parents,

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subsidiaries, affiliates, predecessor entities, successor entities, divisions, departments,

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groups, acquired entities and/or related entities or any other entity acting or purporting to

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act on its behalf.

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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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RULES OF CONSTRUCTION
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The connectives “and” and “or” shall be construed either disjunctively or

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conjunctively as necessary to bring within the scope of the discovery request all responses that

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might otherwise be construed to be outside of its scope.

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2.

“Any,” “all,” and “each” shall be construed as any, all and each.

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3.

The singular form of a noun or pronoun includes the plural form and vice versa.

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4.

The use of any tense of any verb shall also include within its meaning all other

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tenses of that verb.
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A term or word defined herein is meant to include both the lower and upper case

reference to such term or word.
6.

Any headings which appear in the section entitled Requests for Production of

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Documents have been inserted for the purpose of convenience and ready reference. They do not

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purport to, and are not intended to, define, limit, or extend the scope or intent of the requests to

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which they pertain.

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INSTRUCTIONS
1.

You are requested to produce all Documents and ESI in Your possession, custody,

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or control – as well as Documents and ESI that are in the possession of Your partners, officers,

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employees, attorneys, accountants, representatives, or agents, or that are otherwise subject to

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Your custody or control – that are described below.

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2.

Unless otherwise indicated, the Documents and ESI to be produced include all

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Documents and ESI prepared, sent, dated or received, or those that otherwise came into existence

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any time during the Relevant Time Period, as stated below.

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3.

The production by one person, party, or entity of a Document or item of ESI does

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not relieve another person, party, or entity from the obligation to produce his, her, or its own copy

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of that Document or ESI, even if the two are identical.

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4.

In producing Documents and ESI, You are requested to produce a copy of each

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original Document and ESI together with a copy of all non-identical copies and drafts of such

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Document or ESI. If the original of any Document or ESI cannot be located, a copy shall be
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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provided in lieu thereof, and shall be legible and bound or stapled in the same manner as the

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original.

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5.

Documents and ESI shall be produced as they are kept in the usual course of

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business. All Documents and ESI shall be produced with a copy of the file folder, envelope, or

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other container in which the Documents and ESI are kept or maintained. All Documents and ESI

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shall be produced intact in their original files, without disturbing the organization of Documents

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and ESI employed during the conduct of the ordinary course of business and during the

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subsequent maintenance of the Documents and ESI.

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6.

Documents and ESI not otherwise responsive to this discovery request shall be

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produced if such Documents and ESI mention, discuss, refer to, or explain the Documents and

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ESI which are called for by this discovery request, or if such Documents and ESI are attached to

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Documents and ESI called for by this discovery request and constitute routing slips, transmittal

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memoranda, or letters, comments, evaluations or similar materials.

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Each Document and item of ESI requested herein is requested to be produced in its

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entirety and without deletion or excisions, regardless of whether You consider the entire

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Document or item of ESI to be relevant or responsive to this request. If You have redacted any

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portion of a Document or item of ESI, stamp the word “redacted” on each page of the Document

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or item of ESI that You have redacted.

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If any Document or item of ESI called for by these requests is not produced in full

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or is redacted on the ground that it is privileged or otherwise claimed to be protected against

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production, You are requested to provide the following information with respect to each such

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Document or item of ESI or redaction:

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(a)

its date;

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(b)

its author(s), its signatory(s) and each and every other person who prepared

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or participated in its preparation;

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(c)

the type of Document or item of ESI it is (e.g., letter, chart, memorandum,

(d)

a description of its subject matter and length;

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etc.);

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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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(e)

a list of those persons and entities to whom said Document(s) or item of

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ESI was disseminated, together with their last known addresses and the date or approximate date

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on which each such person or entity received it;

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(f)

a list of all other persons to whom the contents of the Document or item of

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ESI have been disclosed, the date such disclosure took place, the means of such disclosure, and

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the present location of the Document or item of ESI and all copies thereof;

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(g)

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of ESI and all copies thereof; and

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(h)

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each and every person having custody or control of the Document or item

the nature of the privilege or other rule of law relied upon and any facts

supporting Your position in withholding production of each such Document or item of ESI.
9.

If You assert an objection to any request, You must nonetheless respond and

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produce any responsive Documents and ESI that are not subject to the stated objection. If You

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object to part of a request or category, You must specify the portion of the request to which You

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object, and must produce Documents and ESI responsive to the remaining parts of the request.

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10.

Notwithstanding a claim that a Document or item of ESI is protected from

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disclosure, any Document or item of ESI so withheld must be produced with the portion claimed

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to be protected redacted.

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11.

If any Document or ESI is known to have existed but no longer exists, has been

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destroyed, or is otherwise available, You must identify the Document or ESI, the reason for its

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loss, destruction or unavailability, the name of each person known or reasonably believed by You

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to have present possession, custody, or control of the original and any copy thereof (if

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applicable), and a description of the disposition of each copy of the Document or ESI.

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12.

Every Request for Production herein shall be deemed a continuing discovery

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request, and You are to supplement information which adds to or is in any way inconsistent with

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Your initial answers to these Requests.

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13.

Plaintiffs reserve the right to propound additional discovery requests.
RELEVANT TIME PERIOD

The relevant time period for each Document Request is for September 26, 2006 through
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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the present (the “Relevant Time Period”), unless otherwise specifically indicated, and shall

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include all Documents, ESI, and any other information that relate to such period, even though

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prepared or published outside of the relevant time period. If a Document or item of ESI prepared

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before this period is necessary for a correct or complete understanding of any Document or item

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of ESI covered by a request, You must produce the earlier or subsequent Document or item of

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ESI as well. If any Document or item of ESI is undated and the date of its preparation cannot be

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determined, the Document or item of ESI shall be produced if otherwise responsive to the

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production request.

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REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 53:
All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your

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behalf—whether undertaken or contemplated but not undertaken—to assign a monetary value to

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Facebook Users, or to determine the monetary value of data received or content collected by You

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from Facebook Users (and/or any additional information derived therefrom), or to determine the

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revenue or profits made from data received or content collected by You from Facebook Users

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(and/or any additional information derived therefrom).

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REQUEST FOR PRODUCTION NO. 54:

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All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your

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behalf—whether undertaken or contemplated but not undertaken—to assign a monetary value to

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the data contained within, or data received or content collected from, Private Messages, and/or

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any additional information derived therefrom.

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REQUEST FOR PRODUCTION NO. 55:

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All Documents and ESI sufficient to identify the number of web pages with “Like” Social

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Plugins embedded, by month, during the Relevant Time Period.

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REQUEST FOR PRODUCTION NO. 56:

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All Documents and ESI sufficient to identify the number “Likes” generated, by month,

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during the Relevant Time Period.

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REQUEST FOR PRODUCTION NO. 57:
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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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All Documents and ESI sufficient to identify the number of Passive Likes generated, by

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month, during the Relevant Time Period.

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REQUEST FOR PRODUCTION NO. 58:

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All Documents and ESI related to any analysis—for internal or external use—correlating

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the acquisition of “Likes” by Third Parties and the advertising spend of those Third Parties on

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Facebook ad buys.

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REQUEST FOR PRODUCTION NO. 59:

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All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your

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behalf—whether undertaken or contemplated but not undertaken—to assign a monetary value to

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the presence of a “Like” Social Plugin on a Third-Party website, or to determine the value of data

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received or content collected from the presence of a “Like” Social Plugin on a Third-Party

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website (and/or any additional information derived therefrom), or to determine the revenue or

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profits made from the presence of a “Like” Social Plugin on a Third-Party website (and/or any

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additional information derived therefrom).

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REQUEST FOR PRODUCTION NO. 60:

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All Documents and ESI relating to Your efforts, or efforts by Third Parties on Your

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behalf—whether undertaken or contemplated but not undertaken—to increase and/or maximize

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the presence of the Like Social Plugin on Third Party websites.

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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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Dated: June 29, 2015

Respectfully submitted,
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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/s/ Michael W. Sobol

Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ THIRD SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

1
2
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Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street Suite 3505
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: 312.377.1184

Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: 212.661.8665

Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR, on
behalf of themselves and all others
similarly situated,

Case No. C 13-5996 PJH
PROOF OF SERVICE BY EMAIL

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Plaintiffs,
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v.
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FACEBOOK, INC.,
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Defendant.
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PROOF OF SERVICE BY EMAIL
CASE NO. C 13-5996 PJH

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I am a citizen of the United States and employed in San Francisco County, California. I

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am over the age of eighteen years and not a party to the within-entitled action. My business

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address is 275 Battery Street, 29th Floor, San Francisco, California 94111-3339.

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I am readily familiar with Lieff, Cabraser, Heimann & Bernstein, LLP’s practice for

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collection and processing of documents for service via email, and that practice is that the

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documents are attached to an email and sent to the recipient’s email account.

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On June 29, 2015, I caused to be served copies of the following documents:

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1.

PLAINTIFFS’ SECOND SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT; and
this

2.

PROOF OF SERVICE BY EMAIL

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on Defendant in this action through their counsel:
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Christopher Chorba
Gibson, Dunn & Crutcher LLP
[e-mail]
Joshua Aaron Jessen
Gibson Dunn & Crutcher LLP
[e-mail]
Jeana Marie Bisnar Maute
Gibson Dunn & Crutcher LLP
[e-mail]
Ashley Marie Rogers
Gibson Dunn and Crutcher LLP
[e-mail]

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Executed on June 29, 2015, at San Francisco, California.
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/s/ Melissa A. Gardner
Melissa A. Gardner

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PROOF OF SERVICE BY EMAIL
CASE NO. C 13-5996 PJH