Campbell et al v. Facebook Inc.

Filing 113

Joint Discovery Letter Briefon Plaintiffs Request for Production No. 41 and Interrogatory No. 8 filed by Matthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Sobol, Michael) (Filed on 9/18/2015)

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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,

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ATTESTATION IN SUPPORT OF JOINT
LETTER REGARDING FACEBOOK’S
RESPONSES TO PLAINTIFFS’
INTERROGATORY NO. 8 AND REQUEST
FOR PRODUCTION NO. 41

Plaintiffs,

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Case No. C 13-05996 PJH (MEJ)

v.
FACEBOOK, INC.,

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

Defendant.

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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,

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:

/s/ Michael W. Sobol
MICHAEL W. SOBOL

Attorneys for Plaintiffs

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GIBSON, DUNN & CRUTCHER LLP

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By:

/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’ INTERROGATORY NO. 8 AND REQUEST FOR PRODUCTION NO. 41
Case No. C 13-05996 PJH (MEJ)

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:
Plaintiffs and Defendant Facebook, Inc. jointly submit this letter brief pursuant to the Court’s
Discovery Standing Order.
I.

Background

A dispute has arisen in this action over Plaintiffs’ Interrogatory No. 8 and Request for
Production No. 41. Interrogatory No. 8 asks Facebook to:
Identify all facts relating to the Processing of each Private Message sent or received
by Plaintiffs containing a URL, including, for each Private Message:
(A)
all Objects that were created during the Processing of the Private Message,
including the (id) and the Object Type for each Object, as well as any Key -> Value
Pair(s) contained in each Object;
(B)
all Objects that were created specifically when the embedded URL was
shared, including the (id) and the Object Type for each Object, as well as any Key ->
Value Pair(s) contained in each Object;
(C)
all Associations related to each Private Message, identified by the Source
Object, Association Type, and Destination Object, as well as any Key -> Value
Pair(s) contained in each Association;
(D)
the database names and table names in which each Association and Object is
stored;
(E)
each application or feature in Facebook that uses the Objects or Associations
created for each Private Message; and
(F)

how each Object associated with the Private Message was used by Facebook.

(Ex. A.) Request for Production No. 41, in turn, seeks the production of “[a]ll Documents
and ESI relied upon, reviewed, or referenced by [Facebook] in answering Interrogatory No.
8.” (Ex. B.)
In its responses, Facebook offered to meet and confer with Plaintiffs on these requests
(Exs. C & D), and the parties met and conferred several times thereafter. During that
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process, Plaintiffs narrowed the requests to 19 of Plaintiffs’ messages. Facebook then
searched for these 19 messages, located 16 of them, and produced to Plaintiffs the objects
and associations (if any) related to the URLs included in those 16 messages on September 1,
2015. (Ex. E) Plaintiffs consider this a partial production. Having conferred in person, the
parties are now at an impasse and submit this joint letter pursuant to the Court’s Discovery
Standing Order.
II.

Plaintiffs’ Position

These discovery requests seek information directly related to the essential issues in
this case: what content Facebook acquires when it intercepts private messages, where
Facebook stores that content, and how Facebook uses that content. Information relating to
the Objects and Associations1 created from Plaintiffs’ messages is not only critical to
Plaintiffs’ claims, but also to Facebook’s defenses.
Facebook’s principal argument is not that this information should not be produced—
rather, it argues this brief is premature. However, the brief is the culmination of three-and-ahalf month process that included four in-person meet and confers and seven letters
exchanged between the parties, after which time Facebook provided only partial, inadequate
responses.2 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 fulsome responses at an unspecified time in the future unduly prejudices Plaintiffs in
their efforts to prepare for these impending, critical deadlines.3
Despite stating that it will, eventually, produce the information sought, Facebook
simultaneously—and contradictorily—challenges the relevance of Plaintiffs’ discovery
requests, claiming that only Objects and Associations directly related to URLs should be
produced. Facebook knows this position is untenable, as it already has agreed to provide “all
source code related to the private message function from creation through end storage,
including any scanning or acquisition of private message content and any data structures
that connect or associate users to messages or message content, and messages to attachments
or URLs.”4 The source code enables Plaintiffs to understand the processes Facebook
employs for its messaging functionality, thereby giving Plaintiffs an overview of how and
when messages are scanned. The information sought in these requests is a corollary to that
source code; here, Plaintiffs wish to learn what specific data were generated by Facebook,
from only nineteen of their own messages, and how that data was used and stored.
Further, while Facebook is correct that Plaintiffs do not challenge the message
scanning it conducts “for criminal conduct, illegal pornography, [and] viruses,” it omits the
fact that Facebook, itself, intends to rely on these scanning activities in support of its
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Objects and Associations are metadata structures that Facebook generates to catalog its users’ online activity.
See Declaration of David T. Rudolph in Support of Plaintiffs’ Motion to Enlarge Time and Extend Dedlines at
¶¶ 29-32 (Dkt. No. 109-2).
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This delay has been typical of Facebook’s response across the entire discovery spectrum, forcing Plaintiffs to
file an opposed motion with Judge Hamilton seeking a 90-day extension to the October 14 deadlines. See
Plaintiff’s Motion to Extend Time and Enlarge Deadlines (Dkt. No. 109).
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E-mail from J. Jessen, Facebook Counsel, to H. Bates, Plaintiffs Counsel (Jun. 25, 2015, 11:01 PM CST).
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extracted after a reasonable search. Plaintiffs have no need for this irrelevant information to
prepare their motion for class certification or to oppose Facebook’s future motion for
summary judgment.
Plaintiffs also have demanded a variety of other pieces of information, such as (i) “each
application or feature in Facebook that uses the Objects or Associations,” and (ii) “how each
Object associated with the Private Message was used.” But Facebook is a massive social
network, and processing, routing, and storing content from billions of user actions per day
requires generation of an enormous amount of data that are not accessible in the way that
Plaintiffs imagine. Facebook’s technical architecture is complicated and vast, and there is no
readily identifiable list of this information—nor can any list be assembled without significant
undue burden (though it likely cannot be assembled at all). And again, Plaintiffs’ request is
not limited to the subject matter of their claims—URLs contained in messages.10
Facebook already gave Plaintiffs direct access to all the relevant source code—the “black
box” they told this Court they needed to understand Facebook’s messages product. (Dkt.
92.) To date, Plaintiffs have had three different experts spend almost four weeks analyzing
that source code (which Facebook provided, reluctantly and unusually, in this consumer
class action as a compromise, not as a concession of relevance, as Plaintiffs incorrectly
suggest). Yet Plaintiffs continue to demand more. This request represents an extreme
burden on Facebook, whose busy and valuable technical employees must take considerable
time away from their normal job duties to search for information that is not readily accessible
(if it is accessible at all), and not even remotely related to Plaintiffs’ claims. Plaintiffs are no
longer seeking information relevant to their claims—they are improperly fishing for a new
basis for their meritless lawsuit. See, e.g., Hughes v. LaSalle Bank, N.A., 2004 WL 414828,
at *1-2 (S.D.N.Y. Mar. 4, 2004) (affirming order limiting discovery to the putative class
alleged in the complaint); Flores v. Bank of America, 2012 WL 6725842, at *2-4 (S.D. Cal.
Dec. 27, 2012) (denying motion to compel discovery that fell outside the class definition;
such discovery “constitutes a ‘fishing expedition’ which would be unduly burdensome for
Defendants”). Facebook respectfully requests that the Court deny Plaintiffs’ request.

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Plaintiffs’ suggestion that Facebook is obligated to either answer an overbroad and unduly burdensome
interrogatory, or undertake an overbroad and unduly burdensome collection and production in order to satisfy
its discovery obligations, is contrary to Rule 33. See, e.g., Kaufman v. Am. Family Mutual Ins. Co., 2007 WL
1430105, at *1 (D. Colo. May 11, 2007) (“[I]nterrogatories that require a party to make extensive
investigations, research, or compilation or evaluation of data for the opposing party are in many circumstances
improper.”); Iridex Corp. v. Synergetics, Inc., 2007 WL 781254, at *4 (E.D. Mo. Mar. 12, 2007) (finding that
party’s production of business records containing some, but not all, of the information requested was sufficient
where providing such additional information would be unduly burdensome).

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