Campbell et al v. Facebook Inc.

Filing 114

RESPONSE (re 109 MOTION for Extension of Time to File Plaintiffs' Motion for Extension of Class Certification and Summary Judgment Deadlines ) filed byFacebook Inc.. (Attachments: # 1 Declaration Joshua Jessen, # 2 Proposed Order)(Jessen, Joshua) (Filed on 9/21/2015)

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISON

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,
v.
FACEBOOK, INC.,

Case No. C 13-05996 PJH (MEJ)
DECLARATION OF JOSHUA JESSEN IN
SUPPORT OF DEFENDANT FACEBOOK,
INC.’S OPPOSITION TO PLAINTIFFS’
MOTION TO ENLARGE TIME AND
EXTEND DEADLINES

Defendant.

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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I, Joshua Jessen, declare as follows:
1.

I am an attorney admitted to practice law before this Court. I am a partner in the law

firm of Gibson, Dunn & Crutcher LLP, and I am one of the attorneys responsible for representing
Defendant Facebook, Inc. (“Facebook”) in the above-captioned action. I submit this declaration in
support of Facebook’s Opposition to Plaintiffs’ Motion to Enlarge Time and Extend Deadlines (Dkt.
109; the “Motion”). Unless otherwise stated, the following facts are within my personal knowledge
and, if called and sworn as a witness, I could and would testify competently to these facts.
I. Scheduling In This Action And Other Email “Scanning” Class Actions
2.

Plaintiffs filed this action on December 30, 2013 (Dkt. 1). They filed their

Consolidated Amended Complaint on April 25, 2014 (Dkt. 25). A hearing is currently scheduled on
Plaintiffs’ motion for class certification and Facebook’s motion for summary judgment (as to the

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named Plaintiffs) on February 17, 2016 (Dkt. 62), which is more than two years after Plaintiffs

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initially filed suit.

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3.

By comparison, in the two e-mail “scanning” lawsuits that inspired this lawsuit against

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Facebook—In re Google Inc. Gmail Litig., Case No. 13–MD–02430–LHK (N.D. Cal.) (“Gmail”),

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and In re Yahoo Mail Litig., Case No. 13-CV-04980-LHK (N.D. Cal.) (“Yahoo”)—orders regarding

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class certification already have been entered. The District Court rendered its decision on class

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certification in Gmail on March18, 2014, and in Yahoo on May 26, 2015. See Gmail, No. 13-MD-

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02430-LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014); Yahoo, No. 13-CV-04980-LHK, 2015

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WL 3523908 (N.D. Cal. May 26, 2015). The consolidated complaint in Gmail was filed on May 16,

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2013, so less than a year passed between that event and a ruling on class certification. The first

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Yahoo case (ultimately several were filed and consolidated) was filed less than three months before

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the present case, and approximately fifteen months elapsed between the filing of a consolidated

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complaint in that case (on February 12, 2014) and a ruling on class certification (on May 26, 2015).

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4.

If Plaintiffs’ Motion is granted, a decision on class certification and summary

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judgment in this matter likely will not be made until mid 2016—approximately two and half years

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after Plaintiffs filed suit.

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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II. The Parties’ Dispute Regarding The Scope Of Discovery In This Action
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This Court held a Case Management Conference on March 12, 2015 (Dkt. 62). In

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advance of that Conference, the parties filed a Joint Case Management Statement (Dkt. 60). In that

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Joint Statement, Plaintiffs “stat[ed] that the parties have conferred as required by Rule 26(f) and

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accordingly discovery is open for all purposes.” (Id. at 9.) In contrast, Facebook “submit[ted] that

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the parties should focus their discovery on class certification issues and the issues identified in this

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Court’s ruling on the Motion to Dismiss.” (Id.) During the Case Management Conference, the Court

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stated that it “agree[d]” with Facebook. (There is no transcript of that conference, but I was present

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and recall the Court’s statement.)

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6.

Since the Case Management Conference, Plaintiffs have not focused their discovery

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efforts on class certification issues and the issues identified in this Court’s ruling on the Motion to

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Dismiss. On the contrary, they have propounded and pursued wide-ranging discovery on topics

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having nothing to do with their claims. The current discovery disputes they cite in their brief

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(discussed in greater detail below) are illustrative. The reason there are disputes pending before

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Magistrate Judge James on discovery that Plaintiffs served in the past few months is not because

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Facebook has refused to produce information relevant to Plaintiffs’ claims (it has produced such

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information), but rather because Plaintiffs have requested a vast amount of information that is not

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relevant to their claims (such as information about the “monetary value” of Facebook users in general

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and technical information not tethered to the challenged conduct). (See Dkt. 112, 113 (two pending

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discovery letter briefs).) Plaintiffs also wasted time filing a motion to compel communications

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between Facebook’s European affiliate (Facebook Ireland) and a foreign regulator (the Irish Data

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Protection Commissioner) that were irrelevant to Plaintiffs’ claims, which the Magistrate properly

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denied. (Dkt. 101.)

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7.

To date, Plaintiffs have taken only one deposition (of Facebook employee Jiakai Liu

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on June 30, 2015).

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A.

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8.

Source Code
As acknowledged in Plaintiffs’ Motion and the supporting declaration of David T.
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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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Rudolph (Dkt. 109-2), Plaintiffs were aware of Facebook’s objection to producing source code in this

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action in advance of the March 12 Case Management Conference. In fact, Plaintiffs raised the issue

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during the Case Management Conference, and this Court referred the parties to Magistrate Judge

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James (Dkt. 62).

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9.

Contrary to Mr. Rudolph’s statement, Facebook’s objection to producing source code

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was not based on the “time and effort requir[ed] to negotiate the terms of a protective order providing

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for source code production.” (Dkt. 109-2, ¶¶ 7, 14.) Rather, Facebook’s objection was that

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production of its valuable and sensitive source code was not warranted in a consumer class action and

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that Plaintiffs had less intrusive means of obtaining the information they needed for their case. Given

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this position, Facebook objected to including provisions regarding the production of source code in

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the initial Stipulated Protective Order (which could have been read to assume that source code was

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proper for production in this case). Plaintiffs, on the other hand, were unwilling to agree to a

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Stipulated Protective Order that did not contain source code provisions.

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10.

During the April 13 Discovery Conference, Magistrate Judge James agreed with

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Facebook that the parties should initially enter into a protective order that did not contain provisions

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governing the treatment of source code. Accordingly, the parties filed a Stipulated Protective Order

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without such provisions, and they included this additional statement regarding their dispute: “The

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parties disagree about the relevance of source code in this action, and they agree that should the

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production of source code become necessary, they will need to amend or supplement the terms of this

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Order. To the extent production of source code becomes necessary in this case, the parties will work

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expeditiously to propose amendments to this Order to cover any production of source code.” (Dkt.

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76.) This had been Facebook’s suggestion all along—defer the dispute over source code so that

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Facebook could prioritize (and begin producing) other materials. This Court signed the Stipulated

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Protective Order on April 17, 2015. (Id.)

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11.

Mr. Rudolph’s statement that “Facebook has repeatedly stipulated to protective orders

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providing for the production of source code” (Dkt. 109-2 ¶ 8) is misleading and shows just how

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unusual Plaintiffs’ request for source code here was. The three protective orders that he attaches to

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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his declaration are all from patent cases. (Id., Exs. 3-5.)
12.

During the April 13 Discovery Conference, Magistrate Judge James also agreed with

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Facebook that Plaintiffs first should explore less intrusive means of discovery. To that end, she set a

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schedule for Facebook to “produce technical and other relevant documents in response to Plaintiffs’

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source code discovery requests, which will include a declaration explaining why the produced

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documents respond to Plaintiffs’ requests without producing the source code itself.” (Dkt. 68.) This

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thoughtful and reasonable approach also required the parties to meet and confer after that production,

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and established a briefing schedule for Plaintiffs’ motion to compel (only if necessary), which would

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be heard on August 13, 2015. (Id.)

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13.

Pursuant to the Magistrate’s Order, Facebook produced a significant number of

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documents on June 1, 2015, including many technical documents, as well as the core e-mails relevant

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to Plaintiffs’ claims. In addition, and pursuant to the Magistrate’s Order, Facebook provided a

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declaration from a senior Facebook Engineering Director (Alex Himel) (the “Himel Declaration”),

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which explained in detail the processes and functionality at issue and attached key technical

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documents explaining relevant portions of the source code (while redacting the source code itself).

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The parties subsequently met and conferred in June, and during that process, in the

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interests of compromise and to avoid wasteful motion practice and further delay, Facebook agreed to

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make the source code available. Plaintiffs’ assertion that Facebook resisted making Mr. Himel

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available for a deposition (Dkt. 109 at 1) is incorrect. The only issue was when the deposition would

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take place given the demands of Mr. Himel’s schedule. (Dkt. 85.) Plaintiffs had not requested a

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deposition as part of the briefing schedule, and so the parties had not incorporated it into the

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schedule. (Id.) This was one of the reasons Facebook ultimately relented to provide its source

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code—Plaintiffs were manufacturing new disputes and the entire process was wasting time.

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The parties then negotiated an amended protective order containing detailed

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provisions to govern the treatment of source code, which this Court entered on July 1, 2015. (Dkt.

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93.) Shortly after the amended protective order was entered, my colleagues and I began the process

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of working to gather the source code relevant to Plaintiffs’ claims (which is not all of Facebook’s

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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source code but only certain code for the period of time from September 2009 to December 2012)

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and make it accessible for review on a secured, non-networked computer. This was a time-

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consuming process, and Mr. Rudolph’s statement that the “production of source code was not

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forthcoming in a timely manner” (Dkt. 109-2, ¶ 15) is baseless. In fact, as I informed Mr. Rudolph

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on July 17, we anticipated that the source code would be ready for inspection by July 29. In fact, it

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turned out to be ready for inspection during the week of July 20. But Plaintiffs’ expert did not begin

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reviewing the code until August 4, 2015. This was still more than a week before the hearing that

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Magistrate Judge James had initially set on any motion by Plaintiffs to compel production of source

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code. (Dkt. 68.)

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Since August 4, Plaintiffs have had three different experts collectively spend four

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weeks reviewing the source code, and the review is continuing this week. It is surprising that the

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review has lasted this long, especially given that Plaintiffs and their experts have the Himel

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Declaration to guide them.

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B.

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Facebook’s Responses To Plaintiffs’ Initial Discovery Requests, Facebook’s
Document Production, And Facebook’s Use Of Predictive Coding
On January 26, 2015, Plaintiffs served their First Set of Requests for Production of

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Documents to Facebook, which consisted of forty document requests. (Dkt. 109-4, Ex. 2.) The

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requests were incredibly overbroad and burdensome when compared to the reasonably discrete

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practice challenged in Plaintiffs’ Consolidated Amended Complaint, so Facebook affirmatively and

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proactively reached out to Plaintiffs—even before its written responses were due—to engage

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Plaintiffs in a constructive dialogue regarding the proper scope of discovery in this case. During a

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lengthy telephone conference on February 11, 2015, to begin discussing Facebook’s concerns about

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the breadth of the requests, Plaintiffs suggested that Facebook serve its written responses and

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objections (including proposed compromises on these requests) on March 9 (which Facebook did),

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after which point the parties would meet and confer. The parties continued to dispute the proper

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scope of discovery, and Facebook noted its concerns in the parties’ Joint Case Management

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Statement. (Dkt. 60 at 10-11.) As noted above, at the March 12 Case Management Conference, this

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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Court stated that it “agree[d]” with Facebook that the parties should focus their discovery efforts on

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the open issues from the Motion to Dismiss ruling and information necessary for class certification.

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Shortly after the Case Management Conference, on March 17, Facebook engaged in a

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lengthy, four-hour telephonic conference with Plaintiffs to discuss the document requests, during

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which time Plaintiffs refused to provide answers to several straightforward questions—including,

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most fundamentally, whether the class definition alleged in the Complaint (which is limited to

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Facebook users who sent URLs in messages between December 2011 and the end of 2012) accurately

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reflected the purported class that Plaintiffs seek to represent in this lawsuit. Specifically, Plaintiffs

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refused to answer the following question: Is a Facebook user who sent a Facebook message that did

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not contain a URL part of the putative class?
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The parties continued to confer, including in Magistrate Judge James’ courtroom after

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the April 13 Discovery Conference. During that discussion, Plaintiffs’ counsel dismissed Facebook’s

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concerns about the breadth of the discovery requests by stating “You know how the game is played.”

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(See also Dkt. 109-2, Ex. 12.)

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20.

On April 1, 2015, Facebook served its Responses to Plaintiffs’ First Set of

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Interrogatories. Those Responses were extremely detailed and provided a narrative description of

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how the challenged practice operated.

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21.

To date, Facebook has produced more than 2,000 documents totaling 6,713 pages.

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This volume of documents is not surprising given that Plaintiffs challenge a very discrete practice

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that ended nearly three years ago. Nonetheless, Facebook has undertaken extensive searches for

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relevant materials, identifying more than twenty document custodians, collecting more than two

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million documents, and then using search terms (to which both parties agreed) and predictive coding

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to narrow the reviewed universe to approximately 275,000 documents. Facebook anticipates that its

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document production will be substantially complete by the end of September. (This is one of the

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reasons Facebook has agreed to a more modest extension of 30 days.)

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22.

Throughout this process, Plaintiffs have critiqued Facebook’s extensive efforts (most

recently by challenging predictive coding), but, despite Facebook’s repeated attempts to affirmatively
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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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and proactively engage with them, Plaintiffs have never offered a counter proposal for how else

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Facebook should conduct a proportional and time-effective document review in this matter. Instead,

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Plaintiffs have consistently attempted to misrepresent the history of the parties’ exchanges and

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manufacture disputes about the process. (Dkt. 109-2, Exs. 12, 17.) For example, in Facebook’s June

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19 letter to Plaintiffs, Facebook’s counsel recounted the relevant history and noted:

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[I]t is only in the last few weeks that we have been able to reach agreement on the
custodians, search terms, and date range for Plaintiffs’ document requests.
Accordingly, your complaints about the volume of the production to date, and your
assertion that there has been ‘five months’ of delay, plainly misstates the record.
Over the last several weeks, we have worked diligently and at great expense to our
client to continue to collect responsive materials from the custodians identified in our
May 13 and June 12 correspondence.

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(Dkt. 109-2 Ex. 12.)
23.

More recently, at the beginning of September, Plaintiffs have challenged the

combination of predictive coding and Facebook’s use of search terms, stating that “Facebook’s
counsel did not indicate in [a] May 13, 2015 letter”—the same letter in which Facebook proposed a
set of search terms for Plaintiffs’ consideration (Id. Ex. 10)—“that Facebook intended to implement
predictive coding as part of its document collection and review process.” (Id. ¶ 24.). But it was not
until after Facebook’s May 13 letter—when Plaintiffs agreed to the search terms and offered no new
ones (on May 27 (id. Ex. 11))—that Facebook could proceed to process all of the documents it had
collected to determine the volume of potentially responsive documents for review. When the
application of the agreed-upon search terms resulted in 600,000 documents for review from (at the
time) 17 custodians, it became clear that further steps were needed to effect a timely, proportional,
and cost-efficient review. At this juncture, Facebook informed Plaintiffs on June 19 of its intent to
use predictive coding to cull this large volume of material to a reasonable volume for review. (Id. Ex.
12.) Plaintiffs made no objection.
24.

Facebook repeatedly encouraged an open discussion and engagement on the predictive

coding process, including by offering—during a meet-and-confer conference on June 30, 2015—to
arrange a call between its technical e-discovery personnel and Plaintiffs’ technical team to facilitate a
dialogue and address any concerns. When this call occurred on July 17, 2015, Plaintiffs’ counsel
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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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posed a number of queries about the size of the potential review population discussed in Facebook’s

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June 19 letter (id.), and what that population did or did not include, while Facebook instead attempted

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to advance the discussion with an explanation of its predictive coding process.

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Plaintiffs then sent Facebook a letter on July 23, 2015, containing over 25 substantive

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inquiries about various aspects of Facebook’s predictive coding process (most of which were new

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and had not been raised during the July 17 call). (Id. Ex. 13.) This exchange required Facebook to

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work with various e-discovery technical staff members to draft a response that would sufficiently

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clarify several of Plaintiffs’ misconceptions and substantially address their various technical queries.

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Facebook ultimately provided a 7-page letter on August 20, 2015, that substantively responded to all

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of Plaintiffs’ various multi-part queries about the predictive coding process and once again affirmed

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that its goal was to engage in a productive discussion with Plaintiffs to make the discovery process

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proportionate and efficient. (Id. Ex. 15.)

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Plaintiffs did not propose any alternative and instead responded with additional

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queries and demands regarding predictive coding. Facebook responded on September 15, and just

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this evening, as we were finalizing Facebook’s Opposition, Plaintiffs’ counsel announced that they

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intend to file yet another letter brief with Magistrate Judge James on this issue—bringing their total

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to 5 discovery briefs (and 4 briefs in the last few weeks since they requested an extension to the

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schedule).

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27.

Further, as noted above, Facebook’s production of around 2,000 documents totaling

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nearly 7,000 pages in this case—what Plaintiffs call a “relatively small set”—is a result not of

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predictive coding, but of the fact that Plaintiffs’ claims in this case concern the functionality

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underlying the Facebook Messages product, which Plaintiffs have argued (Dkt. 109-2, ¶ 7) is

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contained in Facebook’s source code and other technical documentation, not in custodial emails and

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their attachments.

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28.

Yet, rather than productively engaging with Facebook to understand the process and

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its results, or at least providing alternative solutions to make the discovery process as efficient and

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effective as possible, Plaintiffs have initiated a number of needless sideshows—demanding

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production of non-responsive documents, attempting to rescind their previous agreement regarding

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the use of search terms, and moving to compel the production of irrelevant materials.

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C.

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Facebook’s Responses To Plaintiffs’ Interrogatory No. 8 And Request For
Production No. 41
On June 29, 2015, Facebook served its responses and objections to Plaintiff’s

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Interrogatory No. 8 and Plaintiffs’ Second Set of Requests for Production (which included Request

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for Production No. 41). Those requests sought a vast amount of technical information about the

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messages containing URLs that Plaintiffs had sent on Facebook’s platform. Specifically,

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Interrogatory No. 8 asked Facebook to:

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Identify all facts relating to the Processing of each Private Message sent or received
by Plaintiffs containing a URL, including, for each Private Message:

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(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;

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(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;

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(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;

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(D) the database names and table names in which each Association and Object is
stored;

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(E) each application or feature in Facebook that uses the Objects or Associations
created for each Private Message; and

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(F)

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

(Dkt. 109-2 Ex. 18.)
30.

Request for Production No. 41, in turn, sought the production of “[a]ll Documents and

ESI relied upon, reviewed, or referenced by [Facebook] in answering Interrogatory No. 8.” (Id.)
31.

In its written responses, Facebook offered to meet and confer with Plaintiffs on the

proper scope of these overly broad and ambiguous requests, and the parties subsequently discussed
them in July and August. During this process, Plaintiffs narrowed the requests to a subset of 19
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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
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messages sent by Plaintiffs. Facebook then searched for these 19 messages, located 16 of them (after

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considerable time and effort), and produced to Plaintiffs the objects and associations (if any) related

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to the URLs included in those on September 1, 2015. Facebook also produced other technical

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information for each message and served supplemental interrogatory responses. The production

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totaled almost 700 pages. Plaintiffs thus are now in possession of the “objects” and “associations”

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that are relevant to their claims regarding purported URL “scanning.”

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32.

Unsatisfied, Plaintiffs also demanded the production of any “objects” and

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“associations” related to these 16 messages, regardless of the fact that they have no conceivable

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relevance to Plaintiffs’ allegations of “scanning” URLs to increase the “like” counter. As Facebook

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explained in the pending letter brief on this issue, extracting the data comprising objects and

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associations into producible form—which Facebook’s systems were never designed to do—

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especially for objects that are irrelevant to Plaintiffs’ claims, is overbroad and unduly burdensome.

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(Dkt. 113.) Nonetheless, on September 18, Facebook produced additional objects associated with

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these messages that it located after a reasonable search. But Plaintiffs have no need for this irrelevant

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information (or any additional information about these messages) to prepare their motion for class

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certification or to oppose Facebook’s future motion for summary judgment.

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33.

Additionally, for the record, Mr. Rudolph is incorrect that “[d]uring [an] August 11,

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2015 meet and confer, Facebook’s counsel stated that Facebook would produce the requested

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documents within two weeks.” In fact, there was no “meet and confer” on August 11. There was a

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meet-and-confer conference on August 10, but Mr. Rudolph was not part of it. Rather, I spoke with

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other Plaintiffs’ attorneys (Hank Bates and Allen Carney) and told them that accessing the requested

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data (to the extent it existed) for the 19 messages was a time-consuming process and that Facebook

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hoped to have it gathered (to the extent is was accessible) within two weeks. I will not comment on

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Mr. Rudolph’s statement regarding discussions that occurred during the August 19 mediation (as

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those discussions are confidential), except to say that it misstates what Facebook’s counsel told the

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mediator.

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D.
34.

Damages Documents
On August 3, 2015, Facebook served its responses and objections to Plaintiff’s Third

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Set of Requests for Production, which Plaintiffs had served on June 29 and which they now assert are

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relevant to their purported damages for their Wiretap Act and California Invasion of Privacy Act

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claims. As Facebook explained in the pending letter brief on this issue, however, the majority of

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Plaintiffs’ requests are overbroad and untethered to Plaintiffs’ two surviving claims and the damages

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they are permitted to seek pursuant to those laws, which are limited to (1) statutory damages, (2)

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actual damages, and (3) “profits made by [Facebook] as a result of the [alleged] violation” under

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ECPA (see Cal. Pen. Code § 632.7(a); 18 U.S.C. § 2520(b)-(c)). (See Dkt. 112.) In yet another

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example of Plaintiffs not focusing their discovery efforts on issues relevant to class certification,

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Plaintiffs are seeking to compel the production of documents related to the theoretical “monetary

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value” of generic “Facebook users” (and similar categories of irrelevant documents) despite the fact

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that this Court dismissed Plaintiffs’ Unfair Competition Law (Cal. Bus. & Prof. Code § 17200) claim

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with prejudice on the basis that “Plaintiffs argue that they have a property interest in their personal

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information, including the content of their messages, but courts have consistently rejected such a

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broad interpretation of ‘money or property.’” (Dkt. 49 at 19.)

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35.

For the handful of Plaintiffs’ damages discovery requests that arguably seek relevant

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information, Facebook already conducted a reasonable search and diligent inquiry and did not locate

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responsive documents during the relevant time period. (Dkt. 112.) As Plaintiffs know, this is not

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surprising since discovery has shown that Plaintiffs’ core “damages” theory—that Facebook

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previously “scanned” URLs in messages to compile user profiles to deliver “targeted advertising” to

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users during the relevant time period—has no basis in fact.

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E.

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36.

Plaintiffs’ Recently-Served Rule 30(b)(6) Deposition Notice
Plaintiffs did not attempt to notice a Rule 30(b)(6) deposition of Facebook until a few

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weeks ago (on August 28, 2015), when they sent us a proposed Rule 30(b)(6) deposition notice.

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Categories 1 and 2 of the proposed notice ask Facebook to prepare a corporate witness to identify all

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of the relevant source code—the same source code Plaintiffs and their experts have had access to for

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)

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almost two months and have reviewed for four weeks. Preparing a witness to testify regarding

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Facebook’s source code is inappropriate and unduly burdensome, as several cases have recognized.

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The parties are in the process of preparing a letter brief on this dispute, which only recently became

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ripe. As such, this dispute also does not necessitate a lengthy extension to the current schedule.

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III. CONCLUSION

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37.

Facebook does not object to a 30-day extension of the case schedule (adjusted slightly

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to account for the holidays), but given the foregoing, Facebook submits that Plaintiffs have not met

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their burden to show good cause for a 90-day extension that would push the resolution of this case

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into mid-2016, continue to increase the already extensive costs on Facebook, and reward Plaintiffs’

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failure to abide by this Court’s instruction to focus their discovery efforts on the key issues in the

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case.

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I declare under penalty of perjury under the laws of the United States of America and the

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State of California that the foregoing is true and correct, and that I executed this Declaration in Irvine,

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California, on September 21, 2015.

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/s/ Joshua Jessen
Joshua Jessen

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO ENLARGE TIME AND EXTEND DEADLINES
Case No. C 13-05996 PJH (MEJ)