Campbell et al v. Facebook Inc.

Filing 112

Joint Discovery Letter Brief re Plaintiffs' Third Set of Requests for Production filed by Matthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobol, Michael) (Filed on 9/18/2015) Modified on 9/21/2015 (vlkS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,

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ATTESTATION IN SUPPORT OF JOINT
LETTER REGARDING FACEBOOK’S
RESPONSES TO PLAINTIFFS’ THIRD
SET OF REQUESTS FOR PRODUCTION

Defendant.

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Case No. C 13-05996 PJH (MEJ)

Date:
TBD
Time:
TBD
Location: San Francisco Courthouse
Courtroom B – 15th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

v.
FACEBOOK, INC.,

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Pursuant to the Discovery Standing Order for Magistrate Judge Maria-Elena James,

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undersigned counsel hereby attest that they met and conferred in person in a good faith attempt to

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resolve their disputes prior to filing the below joint letter.

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Dated: September 18, 2015

Respectfully submitted,
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:

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/s/ Michael W. Sobol
MICHAEL W. SOBOL

Attorneys for Plaintiffs

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Joshua A. Jessen
JOSHUA A. JESSEN

Attorneys for Defendant Facebook, Inc.

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ATTESTATION IN SUPPORT OF JOINT LETTER REGARDING FACEBOOK’S RESPONSES TO
PLAINTIFFS’ THIRD SET OF REQUESTS FOR PRODUCTION
Case No. C 13-05996 PJH (MEJ)

September 18, 2015
VIA ECF
The Honorable Maria-Elena James, Chief Magistrate Judge
United States District Court, Northern District of California
San Francisco Courthouse, Courtroom B - 15th Floor
450 Golden Gate Avenue, San Francisco, CA 94102
Re:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH (MEJ)

To The Hon. Maria-Elena James:
The parties jointly submit this letter brief pursuant to the Court’s Discovery Standing Order.
I.

Background

A dispute has arisen over Plaintiffs’ Third Requests for Production (“RFPs”), comprising
eight RFPs numbered 53-60 (the “Requests”).
These Requests (i) concern efforts by Facebook or third parties to value Facebook users
generally, or the information collected from them, or to determine the revenues or profits
attributable to such information (RFP 53); (ii) concern efforts by Facebook or third parties to
value the information derived from Facebook messages (RFP 54); (iii) seek to identify the
number of web pages with “Like” social plugins, on a monthly basis (RFP 55); (iv) seek to
identify the number of “Likes” generated on a monthly basis (RFP 56); (v) seek to identify
the number of “Passive Likes” (defined as “Likes” generated as a result of Facebook
allegedly “scanning” URLs contained in messages) generated on a monthly basis (RFP 57);
(vi) seek documents and ESI correlating the acquisition of “Likes” by third parties with
spending by such third parties on Facebook ad buys (RFP 58); (vii) concern efforts by
Facebook or third parties to value the presence of “Like” buttons on third party websites, to
value data received therefrom, or to determine revenues attributable to the presence of such
“Like” buttons (RFP 59); and (viii) concern efforts by Facebook or third parties to increase
or maximize the presence of “Like” plugins on third party websites (RFP 60).
In response to these Requests, Facebook agreed to produce responsive documents to RFP
Nos. 55 and 57 (to the extent they could be located after a reasonable search) ; objected and
offered to meet and confer on RFP Nos. 53, 54, and 59; and objected to RFP Nos. 56, 58, and
60. Facebook subsequently informed Plaintiffs that it had conducted a reasonable search and
diligent inquiry for documents responsive to RFP Nos. 55 and 57 (as well as RFP No. 54,
following a meet-and-confer), but had not located any documents responsive to those
Requests during the relevant time period. As for the other Requests, Facebook stands on its
objections. Having conferred in person, the parties are now at an impasse and submit this
joint letter pursuant to the Court’s Discovery Standing Order.

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II.

Plaintiffs’ Position

RFPs 53-60 seek discovery relevant to damages in this action. Alternately standing on
objections that the Requests are too broad, or interpreting them so narrowly as to exclude all
responsive documents, Facebook refuses to produce a single document responsive to
Plaintiffs’ damages RFPs. Facebook appears to be applying a unilaterally restrictive
standard to its searches, which no documents in Facebook’s possession can satisfy, but
Plaintiffs have reason to believe that responsive documents exist, and should be produced.1
This suit arises under the California Invasion of Privacy Act (“CIPA”), and the Electronic
Communications Privacy Act (“ECPA”). CIPA provides for actual damages, or statutory
damages of $5,000. Cal. Penal Code § 637.2. ECPA provides for a variety of “appropriate
relief,” including (1) the sum of actual damages plus profits made by the violator as a result
of the violation, (2) statutory damages of $10,000, or $100 per day of violation; and/or (3)
other equitable relief “as may be appropriate.” 18 U.S.C. § 2520(b)-(c). Plaintiffs are
pursuing damages under each allowable measure, including appropriate equitable relief.
The unlawful scanning alleged here occurs at the intersection of several activities beneficial
to Facebook, including (1) promoting social plugins to third-party websites, and generating
“Likes” of such sites which, among other things, constitutes advertising for Facebook, and
allows it to track users’ browsing activity; (2) encouraging users to engage with Facebook by
enabling private messaging; and (3) processing data gleaned from such users’ engagement
for research or to improve targeted advertising efforts. As long as Facebook refuses to
produce documents relevant to how these activities generate revenue, Plaintiffs are impeded
from identifying how Facebook benefited from its decision to scan private messages for
URLs and increment the associated Like counts. This discovery is critical to establishing
Facebook’s unjust enrichment or profits from the alleged violations of ECPA.
The Requests’ overarching purpose is to discover how Facebook generates profits in order to
analyze the role played by private messages, social plugins, and Likes, and, specifically, the
interception of private messages, generation of passive Likes, and derivative activities, in
Facebook’s income stream. Objecting that many Requests are too broad, Facebook has
withheld all responsive documents. Conversely, for highly specific Requests, Facebook
claims it cannot produce responsive documents, in part, because it does not value users,
messages, or Likes in the specific way those Requests are framed. At this early stage of
discovery, Plaintiffs apparently have not applied Facebook’s specific internal terminology
for valuing inputs to its business. A good-faith search, however, would provide documents
showing how Facebook categorizes such inputs, whether by user, by activity, by data source,
by information type, or in some other way, so that Plaintiffs could accurately model the
profits attributable to the challenged conduct. Instead, Facebook has produced nothing and
instead faulted Plaintiffs for the scope – both breadth and narrowness – of the Requests.
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Facebook also contends that this briefing is premature. However, this discovery was served on June 29, 2015.
The deadline for both class certification and summary judgment motions is October 14, less than one
month from the date of this filing. Facebook’s position that it will provide responsive documents at an
unspecified future time unduly prejudices Plaintiffs in their efforts to prepare for these impending
deadlines.

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III.

Facebook’s Position

This letter brief illustrates just how far Plaintiffs have strayed from the District Court’s clear
instruction at the March 12, 2015 case management conference that the parties should focus
their discovery efforts on issues relevant to class certification and the open issues from the
Court’s motion-to-dismiss order. The majority of Plaintiffs’ requests are overbroad and
untethered to Plaintiffs’ two surviving claims and the damages they are permitted to seek
pursuant to those laws. Contrary to Plaintiffs’ argument, it is not that Plaintiffs “have not
applied Facebook’s specific internal terminology for valuing inputs to its business” or that
Facebook has interpreted Plaintiffs’ requests “too broad[ly]”; rather, it is that the majority of
Plaintiffs’ requests seek information that simply has nothing to do with Plaintiffs’ claims.5
Plaintiffs allege that prior to the end of 2012, Facebook “scanned” the content of Plaintiffs’
messages, and if a URL was in the message and the webpage corresponding to the URL
displayed a “Like” button social plugin with an anonymized, aggregate “counter,” that “like
counter” increased by one (which Plaintiffs refer to as a “passive like”). Plaintiffs also allege
that this “passive like” data was used to compile user profiles in order to deliver targeted
advertising to users. Notably, Plaintiffs do not challenge any conduct related to a Facebook
user affirmatively clicking on a “like” button (which likewise increased the counter and
which Plaintiffs have termed “active likes”) or to the use of the “like” button in general.
Plaintiffs’ stated purpose behind RFPs 53-60, i.e., “to discover how Facebook generates
profits,” is fundamentally flawed and overbroad. Plaintiffs are not entitled to general
documents about how Facebook “generates profits.” Rather, they are entitled to documents
(if any) relevant to their specific claims and the permissible damages under those claims (i.e.,
documents showing that Plaintiffs suffered damages or that Facebook “profited” from the
alleged “interceptions”). But as Plaintiffs know from discovery to date, their core theory
about how Facebook allegedly “profited” during the relevant time period—i.e., by using
“passive likes” to compile user profiles to deliver targeted advertising to users—has no basis
in fact. Accordingly, it is not surprising that Facebook has not located any documents
showing that Facebook “profited” by the alleged conduct.
Plaintiffs’ request should be denied for two overarching reasons:
1. Facebook Already Agreed To Produce Documents Related To Plaintiffs’ Claims. Only
RFP Nos. 54,6 55,7 and 57 seek documents that are arguably relevant to Plaintiffs’ claims.
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Notably, the District Court dismissed Plaintiffs’ UCL claim with prejudice, holding that Plaintiffs had not
alleged any “lost money or property” as a matter of law. (Dkt. 43 at 19). Plaintiffs can only seek three
varieties of monetary relief under their remaining claims: (1) statutory damages, (2) “actual damages,” and
(3) “profits made by [Facebook] as a result of the [alleged] violation” under ECPA. See Cal. Pen. Code §
632.7(a); 18 U.S.C. § 2520(b)-(c). “Unjust enrichment” is not an available form of damages, nor are other
forms of money damages available under the provision of ECPA permitting, in certain cases, “such
preliminary and other equitable or declaratory relief as may be appropriate.” 18 U.S.C. § 2520(b)(1).

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Because this Request seeks only information about the amorphous and theoretical “monetary value” of
information contained in messages (a theory rejected by the District Court, supra n. 5), it is overbroad.

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In an attempt to support RFP No. 55, Plaintiffs cite a previously produced blog post dated nearly a year
after the alleged practices ceased. The post does not suggest that the information sought by RFP 55 is
available for the time period relevant to Plaintiffs’ claims, but Facebook will renew its search for the data.

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For these RFPs, Facebook already conducted a reasonable search and diligent inquiry, but it
did not locate responsive documents during the relevant time period. Plaintiffs’ insistence
that “responsive documents exist” is speculation and reveals a lack of understanding about
the already produced documents cited in Plaintiffs’ portion of this brief. If Facebook
subsequently locates documents responsive to these requests from the relevant time period, it
will produce them.
2. The Remaining RFPs Seek Documents That Are Unrelated To Plaintiffs’ Claims. The
balance of Plaintiffs’ requests are not tethered to their claims or the damages recoverable
under those claims.
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RFP No. 53 does not concern “private messages” at all, much less the “profits” made by
allegedly “intercepting” such messages, and instead seeks extremely general information
regarding the “monetary value” of all “Facebook users” and their data. These documents,
even if they existed, have no connection to Plaintiffs’ claims or alleged injuries.8

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RFP No. 56 seeks information about “active likes.” Recognizing that such requests are
overbroad and irrelevant, Plaintiffs have withdrawn similar previous discovery requests.

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RFP Nos. 58 and 59 seek generic information about the value of the “like” button social
plugin and have nothing to do with the specific practice challenged in this action.
Further, they are overbroad because they seek information that includes (1) “active
likes,” and (2) the theoretical “monetary value” of information (a theory rejected by the
District Court), not any “profits made by [Facebook] as a result of the [alleged]
violation” (the alleged “scanning” of messages containing URLs). 18 U.S.C. § 2520(c)
(emphasis added). Even if there were responsive documents, those documents would not
have anything to do with the “damages” recoverable by the putative class in this case.9

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Finally, RFP No. 60 is also irrelevant to Plaintiffs’ claims and any possible damages
recoverable under those claims. The publicly-available white paper cited by Plaintiffs
concerns “active likes” (see supra n. 3 (“clicks on the like button”))—something that
Plaintiffs have repeatedly conceded is not at issue in this case.

For the above reasons, Plaintiffs have not met their “initial burden of establishing that [their]
request[s] satisf[y] the relevancy requirements of Rule 26(b)(1).” Ellis v. J.P. Morgan Chase
& Co., No. 12-cv-03897, 2014 WL 1510884, at *3 (N.D. Cal. Apr. 1, 2014). Their requests
are irrelevant and overbroad, and to the extent any of the requests are relevant, Facebook has
conducted a reasonable search for responsive documents. Facebook therefore respectfully
requests that the Court deny Plaintiffs’ requested relief.

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The Facebook Investor Relations document Plaintiffs cite in support of their position (supra n. 2) reveals
just how overbroad RFP 53 is—it explains that “a revenue-generating activity” consists of (1) payments
and other fees and (2) advertising. Neither is relevant to the challenged conduct.

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Plaintiffs claim that two previously produced documents evidence a
or
that
“[i]ncreasing the Like count appears to have motivated the alleged ECPA violations.” (Supra n. 4.) Like
the blog post discussed above, Plaintiffs mischaracterize these documents and they are irrelevant since they
do not discuss generating revenue, increasing profits, or assigning a monetary value to each “Like.”

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