Campbell et al v. Facebook Inc.

Filing 126

NOTICE of Filing of Proportionality Declaration by Facebook Inc. re 118 Minute Entry. (Attachments: # 1 Declaration of Dale Harrison on Behalf of Defendant Facebook, Inc.)(Jessen, Joshua) (Filed on 10/6/2015) Modified on 10/7/2015 (kcS, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 11 12 13 GIBSON, DUNN & CRUTCHER LLP JOSHUA A. JESSEN, SBN 222831 JEANA BISNAR MAUTE, SBN 290573 ASHLEY M. ROGERS, SBN 286252 1881 Page Mill Road Palo Alto, California 94304 Telephone: (650) 849-5300 Facsimile: (650) 849-5333 GIBSON, DUNN & CRUTCHER LLP GAIL E. LEES, SBN 90363 CHRISTOPHER CHORBA, SBN 216692 333 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 Attorneys for Defendant FACEBOOK, INC. 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 19 20 21 22 MATTHEW CAMPBELL, MICHAEL HURLEY, and DAVID SHADPOUR, Plaintiffs, v. FACEBOOK, INC., Case No. C 13-05996 PJH (MEJ) PUTATIVE CLASS ACTION DEFENDANT FACEBOOK, INC.’S NOTICE OF FILING OF PROPORTIONALITY DECLARATION PURSUANT TO DKT. NO. 118 Defendant. 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DEFENDANT FACEBOOK, INC.’S NOTICE OF FILING OF PROPORTIONALITY DECLARATION PURSUANT TO DKT. NO. 118; Case No. C 13-05996 PJH (MEJ) 1 Pursuant to the Court’s Minute Entry following the Telephonic Discovery Hearing on 2 September 29, 2015 (Dkt. 118), Defendant Facebook, Inc. (“Facebook”) respectfully submits the 3 attached Declaration of Dale Harrison (“Harrison Declaration”) in support of its opposition to 4 Plaintiffs’ request to compel additional information in response to Plaintiffs’ Interrogatory No. 8 and 5 Request for Production No. 41 (Dkt. 113). As explained in the Harrison Declaration, it would be a 6 significant burden for Facebook to be required to search for any additional information in response to 7 Plaintiffs’ requests. (Harrison Decl. ¶¶ 1, 9, 12, 19, 20.) Moreover, as explained in Facebook’s 8 portion of the parties’ joint letter (Dkt. 113), that burden would vastly outweigh the potential 9 relevance of any additional information that might be located after additional searching. Plaintiffs’ Complaint challenges a very specific practice—namely, the alleged “scanning” of 10 11 URLs sent in “private messages” to increase the “like” counter on third-party websites before the end 12 of 2012. Specifically, Plaintiffs allege that: 13 [A]t least until October 2012, Facebook has scanned private messages to produce ‘Likes’ for websites with an embedded ‘Like’ button, where the private message contains that website’s URL. After scanning the content of private messages that include a link to a third-party website, Facebook has searched for information profiling the message-sender’s web activity, and manipulated code in the third-party website to increase the number of ‘Likes’ indicated on the website’s Facebook plugin. 14 15 16 17 (Dkt. No. 25 (Plaintiff’s Consolidated Amended Compl.) ¶ 27.) 1 Plaintiffs have referred to “Likes” being generated through the alleged process of “scanning” 18 19 URLs in messages as “passive likes.” (See, e.g., Dkt. No. 112-1 at 4 (“‘Passive Likes’ means any 20 Likes that were not generated by Facebook Users affirmatively clicking on a Like button Social 21 PlugIn, and were instead generated as a result of Facebook scanning URLs contained within Private 22 Message (i.e., generated through the behavior described in the Wall Street Journal article “How 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP (See also id. ¶ 2 (alleging that “when [Plaintiffs’] ostensibly private messages contained links to other websites, also known as ‘URLs,’ Facebook scanned those messages and then analyzed the URL in the link. If the website contained a Facebook ‘Like’ button, Facebook treated the content of Plaintiffs’ private messages as an endorsement of the website, adding up to two ‘Likes” to the pages count”); id. ¶ 59 & n.3 (seeking to represent a proposed class of “[a]ll natural-person Facebook users located within the United States who have sent or received private messages that included URLs in their content, from within two years before the filing of this action [December 30, 2011] up through and including the date when Facebook ceased its practice,” which Plaintiffs allege was “at some point after it was exposed in October 2012”).) 1 1 DEFENDANT FACEBOOK, INC.’S NOTICE OF FILING OF PROPORTIONALITY DECLARATION PURSUANT TO DKT. NO. 118; Case No. C 13-05996 PJH (MEJ) 1 Private Are Your Private Facebook Messages [dated October 3, 2012])”).) As explained in 2 Facebook’s portion of the joint letter and the Harrison Declaration, Facebook has already spent 3 considerable time and effort searching for, extracting, and producing (where available) the technical 4 message information relevant to Plaintiffs’ claims. (Dkt. 113; Harrison Decl. ¶¶ 4-8, 13-18.) 5 Plaintiffs also have been given access to Facebook’s extremely valuable and sensitive source code for 6 the relevant period of time (ending in December 2012), which they and their experts have now spent 7 over six weeks reviewing. Under any proportionality analysis, Plaintiffs’ request for additional 8 information should be denied. (See Fed. R. Civ. P. 26(b)(2)(C); N.D. Cal. ESI Discovery Guideline 9 1.03.) 10 During the September 29 telephonic hearing, Plaintiffs attempted to walk away from their 11 Complaint and claim that their allegations went beyond the alleged scanning of URLs in connection 12 with Facebook’s social plug-in functionality. Those assertions are belied by their own Complaint and 13 several other representations Plaintiffs have made, including in their portion of the parties’ Joint Case 14 Management Statement. (Dkt. 60 at 3 (“Plaintiffs allege that Facebook scans the content of class 15 members’ private messages, and if there is a link to a web page contained in that message, Facebook 16 treats it as a ‘like’ of the page, and increases the page’s ‘like’ counter by one. Plaintiffs further allege 17 that Facebook uses this data regarding ‘likes’ to compile user profiles, which it then uses to deliver 18 targeted advertising to its users.”).) Indeed, their Complaint’s focus on the alleged “scanning” of 19 URLs is the only conceivable reason why Plaintiffs’ proposed class is limited to Facebook users 20 “who have sent or received private messages that included URLs . . . .” (Dkt. No. 25 ¶ 59 (emphasis 21 added).) In short, if a putative class member did not send a Facebook message containing a URL, 22 that person is not a member of the class identified in the Complaint. In response to Facebook’s 23 request, and over Plaintiffs’ objection, Judge Hamilton set a deadline of March 31, 2015, to amend 24 the pleadings, and that deadline passed several months ago. 2 (Dkt. No. 62.) 25 26 27 28 Gibson, Dunn & Crutcher LLP Defendants are entitled to rely on the proposed class as alleged in mounting a defense. 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”). 2 2 DEFENDANT FACEBOOK, INC.’S NOTICE OF FILING OF PROPORTIONALITY DECLARATION PURSUANT TO DKT. NO. 118; Case No. C 13-05996 PJH (MEJ) 1 Given the foregoing, Facebook respectfully requests that Plaintiffs’ request be denied. In the 2 event the Court feels it is necessary to determine the proper scope of Plaintiffs’ claims to resolve this 3 issue and does not have sufficient information to do so, Facebook respectfully requests that the Court 4 refer the issue to Judge Hamilton. Plaintiffs have indicated that they plan to file several additional 5 letter briefs implicating the scope of discovery in this action, so clarity on the scope of Plaintiffs’ 6 claims will be important, especially with the November 13 class certification and summary judgment 7 motion deadlines nearing and Judge Hamilton’s recent order that this deadline will not be extended 8 again. 3 (Dkt. No. 117.) 9 Dated: October 6, 2015 10 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP 11 /s/Joshua A. Jessen Joshua A. Jessen By: 12 Attorneys for Defendant FACEBOOK, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP During the September 29 telephonic hearing, Plaintiffs also suggested that their claims challenge current—as opposed to historical—conduct. Again, this assertion is belied by the allegations in their own Complaint (alleging that the challenged conduct ceased in 2012), as well as by the parties’ agreement in this case that no Facebook documents created after the filing of Plaintiffs’ lawsuit (in December 2013) need be produced. Moreover, as noted above, by agreement of the parties, Plaintiffs have only been given access to Facebook’s source code during the relevant period (i.e., through the end of 2012). The fact that, in the interests of compromise and at the request of Plaintiffs, Facebook produced technical data on a handful of Plaintiffs’ messages sent or received after the filing of Plaintiffs’ suit can hardly be held against Facebook (or used to require Facebook to produce presentday documents). On the contrary, it is yet another illustration of Facebook’s willingness to compromise being used against it by Plaintiffs. (See, e.g., Plaintiffs’ attempt to compel Facebook to produce a 30(b)(6) witness to explain its source code (Dkt. 122)—after Facebook compromised by making the source code available and provided an explanatory declaration—and Plaintiffs’ forthcoming attempt to amend the stipulated protective order to allow its experts to bring networked and recordable electronic devices into the secured source code review room.) This conduct by Plaintiffs is contrary to the spirit of the Federal Rules and the Rules of this Court, which encourage compromise and cooperation among the parties. 3 3 DEFENDANT FACEBOOK, INC.’S NOTICE OF FILING OF PROPORTIONALITY DECLARATION PURSUANT TO DKT. NO. 118; Case No. C 13-05996 PJH (MEJ)

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