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)

EXHIBIT B

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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 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’ SECOND 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’ SECOND 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 and Michael Hurley v. Facebook,
Inc.; Case No. C 13-5996 PJH (N. Dist. 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’ SECOND 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’ SECOND SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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(k)

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

(l)

“Plaintiff” and “Plaintiffs” refer to the named plaintiffs in this Action, and any reference

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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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(m)

“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.
(n)

“Relate(s) o,” “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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(o)

“Share Object(s)” refers to the term “share objects,” as used by You in Defendant
Facebook, Inc.’s Responses and Objections to Plaintiffs’ First Set of Interrogatories.

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(p)

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

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(q)

“Transmission,” “Transmit,” and “Transmitting” refer to any intentional act by one

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party which results in the possession, by at least one other party, of a Document or item of

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ESI. Such acts include but are not limited to mailing (via the U.S. Post Office or other

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Third Party carriers such as FedEx or UPS), faxing, emailing, hand-delivering, and

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causing to be delivered via courier service any Document and/or, where applicable, item

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of ESI.

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(r)

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

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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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RULES OF CONSTRUCTION
1.

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.
5.

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 Requests for Production section have been

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inserted for the purpose of convenience and ready reference. They do not purport to, and are not

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intended to, define, limit, or extend the scope or intent of the Requests to 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.

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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

original Document and ESI together with a copy of all non-identical copies and drafts of that
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PLAINTIFFS’ SECOND SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

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Document. If the original of any Document and ESI cannot be located, a copy shall be provided

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in lieu thereof, and shall be legible and bound or stapled in the same manner as the 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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7.

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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8.

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

1

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. 41:
All Documents and ESI relied upon, reviewed, or referenced by You in answering

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Interrogatory No. 8.

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REQUEST FOR PRODUCTION NO. 42:

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All Documents and ESI related to Communications related to using Share Objects

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associated with URLs to increase the “Like” count of Third Party websites.

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REQUEST FOR PRODUCTION NO. 43:

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All Documents and ESI related to Communications related to using data or Metadata

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created from URLs in Private Messages (including but not limited to Share Objects) for purposes

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other than increasing the “Like” count of Third Party websites.

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REQUEST FOR PRODUCTION NO. 44:

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All Documents and ESI related to Communications related to “receiv[ing] data” (as the

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term is used in Your Data Use Policy updated on November 15, 2013) or “collect[ing]…content”

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(as the term is used in Your present Data Use Policy) from Private Messages.

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REQUEST FOR PRODUCTION NO. 45:

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All Documents and ESI sufficient to identify all changes made to Your Data Use Policy

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since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 46:

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All Documents and ESI sufficient to identify any changes to Your Data Use Policy that
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PLAINTIFFS’ SECOND SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO DEFENDANT
CASE NO. C 13-5996 PJH

1

were considered or proposed but not ultimately adopted, since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 47:

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All Documents and ESI sufficient to identify all changes made to Your Statement of

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Rights and Responsibilities since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 48:

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All Documents and ESI sufficient to identify any changes to Your Statement of Rights

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and Responsibilities that were considered or proposed but not ultimately adopted, since the

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initiation of this Action.

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REQUEST FOR PRODUCTION NO. 49:

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All Documents and ESI sufficient to identify all changes made to the section of Your Help

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Center titled “How to Post and Share” since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 50:

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All Documents and ESI sufficient to identify any changes to the section of Your Help

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Center titled “How to Post and Share” that were considered or proposed but not ultimately

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adopted, since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 51:

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All Documents and ESI sufficient to identify all changes made to the section of Your Help

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Center titled “Messages” since the initiation of this Action.

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REQUEST FOR PRODUCTION NO. 52:

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All Documents and ESI sufficient to identify any changes to the section of Your Help

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Center titled “Messages” that were considered or proposed but not ultimately adopted, since the

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initiation of this Action.

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

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Dated: May 26, 2015

Respectfully submitted,
CARNEY BATES & PULLIAM, PLLC

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By:

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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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/s/ Hank Bates

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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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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Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ SECOND 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 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 AND
U.S. MAIL

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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 AND U.S. MAIL
CASE NO. C 13-5996 PJH

1

I am a citizen of the United States and employed in Pulaski County, Arkansas. I am over

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

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2800 Cantrell Rd., Suite 510, Little Rock, Arkansas 72202.

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I am readily familiar with Carney Bates & Pulliam, PLLC’s practice for collection and

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

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to an email and sent to the recipient’s email account.

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I am also readily familiar with this firm’s practice for collection and processing of

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correspondence for mailing with the United States Postal Service. Following ordinary business

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practices, the envelope was sealed and placed for collection and mailing on this date, and would,

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in the ordinary course of business, be deposited with the United States Postal Service on this date.

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On May 26, 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 AND U.S. MAIL

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on the following parties in this action through their respective counsel:
Christopher Chorba
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Email: [e-mail]
Joshua Aaron Jessen
Gibson Dunn & Crutcher LLP
3161 Michelson Drive, Suite 1200
Irvine, CA 92612
Email: [e-mail]

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Executed on May 26, 2015, at Little Rock, Arkansas.
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/s/ David F. Slade
David F. Slade

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PROOF OF SERVICE BY EMAIL AND U.S. MAIL
CASE NO. C 13-5996 PJH