Campbell et al v. Facebook Inc.

Filing 128

RESPONSE to re 126 Declaration of Dale Harrison by Matthew Campbell, Michael Hurley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sobol, Michael) (Filed on 10/8/2015) Modified on 10/9/2015 (vlkS, COURT STAFF).

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[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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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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Attorneys for 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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OAKLAND DIVISION
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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,

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Case No. C 13-05996 PJH (MEJ)
PLAINTIFFS’ RESPONSE TO
DECLARATION OF DALE HARRISON

Plaintiff,
Judge:

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Honorable Maria-Elena James

v.
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FACEBOOK, INC.,
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Defendant.
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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Pursuant to this Court’s Order of September 28, 2015 (Dkt. No. 118), Plaintiffs hereby

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submit this Response to the Declaration of Dale Harrison.

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I.

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Introduction
Facebook’s position as articulated in the Declaration of Dale Harrison is not plausible. It

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asserts that only the

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counter can be produced without undue burden. Quite conveniently, according to Facebook, any

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production that goes beyond Facebook’s blatantly self-serving mischaracterization of the

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Complaint is too burdensome.

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concerning the incremental increase in the Like

The

Plaintiffs seek are essential to their claims because they

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show: (1) what content Facebook acquires from users’ private messages, (2) where that content is

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stored, and (3) how that content is used. Rather than establish the burden in producing this

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information, Facebook seeks to limit its production to the

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associated with the Like counter. This Court, during the hearing on

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this motion, and in a prior ruling in this case, has rejected the notion that Plaintiffs’ claims are

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limited to the incremental changes in the Like counter. The all-too-convenient line Facebook

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attempts to draw on what is too burdensome to produce in this case falls on exactly this

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erroneous, and previously rejected, rewriting of Plaintiffs’ Complaint. However, when Facebook

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complained in prior briefing of Plaintiffs’ challenge to “any ‘interception’ of messages containing

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URLs for any purpose,” the Court found that “Facebook does not explain or cite anything in the

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record that would indicate that Plaintiffs are changing theories or fundamentally altering their

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position.” Discovery Order at p. 7 (Dkt. No. 83) (emphasis original). Instead, the Court held that

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Plaintiffs’ claims, which relate to all message scanning and content acquisition violative of ECPA

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and CIPA, were substantiated by the CAC’s “detailed factual allegations.” Id. (citing CAC ¶¶ 63,

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64, 73, 78-82, 86-67, 94, 96, 104-109).

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Facebook offers no factual basis for why other

beyond those

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concerning incrementing the Like counter would be too burdensome too produce. If the Court is

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to accept Facebook’s position, Facebook will have successfully avoided production of

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information critical to Plaintiffs’ allegations that Facebook obtained data from users’ private
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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messages “for the current or future objective of accumulating and analyzing user data and

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thereafter refining user profiles and/or enhancing its targeted advertising efforts.” Consolidated

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Amended Complaint (“CAC”) at ¶ 30 (Dkt. No. 25).

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Per the Court’s Order on September 29, 2015, the purpose of the Declaration of Dale

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Harrison on behalf of Defendant Facebook, Inc. (“Declaration”) was to “explain the burden of

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extracting the information as discussed on the record.” (Dkt. No. 118).

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demonstrated that it is too burdensome to supplement its response to Plaintiffs’ Interrogatory No.

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8 and Request for Production No. 41 (“Requests”). Indeed, the seven-page Declaration contains

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only two paragraphs (nineteen and twenty) focused on this topic, and those paragraphs contain

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only conclusory statements (the rest of the Declaration explains Facebook’s production to date.).

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The Declaration fails to substantiate that it would be too difficult to respond to Plaintiffs’

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Requests. Moreover, as discussed in Section III, infra, Facebook concedes that there would be no

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burden in collecting many of the documents Plaintiffs seek. Thus, Facebook fails to carry its

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burden, and Plaintiffs are entitled to responses disclosing all content Facebook acquires from

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messages, how that content is used, and how that content is stored.

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II.

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Facebook has not

Facebook has not identified any burden substantial enough to justify its refusal to
respond to Plaintiffs’ Requests.
The presumption of discoverability is Facebook’s to rebut—if a requesting party shows

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that it both sought relevant documents and then made a good faith effort to meet and confer with

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its opponent, “the resisting party then carries a ‘heavy burden’ of demonstrating why discovery

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should be denied.” In re Mgm Mirage Secs. Litig., 2014 U.S. Dist. LEXIS 165486, at *10-11 (D.

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Nev. Nov. 25, 2014) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975));

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see also La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal.

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2012) (“[T]he party opposing discovery has the burden of showing that discovery should not be

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allowed, and also has the burden of clarifying, explaining and supporting its objections with

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competent evidence.”).

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Facebook’s Declaration lacks the requisite specificity, and thus fails to carry this burden.
In a conclusory fashion, Facebook’s declarant states that it
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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Declaration at ¶ 19 (emphasis added). Mr. Harrison further states that he

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Id. Put another way, Mr. Harrison takes the position that he cannot
identify or produce

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This is simply a restatement of what Plaintiffs’ asked Facebook to do through
their Requests; it is not a suitable articulation of burden.1

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Moreover, even where Mr. Harrison departs from generalities, his statements are always
conditional:

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Declaration at ¶ 19 (emphasis added). Such conclusory

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allegations, and nothing more, fail to rebut the presumption of discoverability and the

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proportionality of Plaintiffs’ Requests. La. Pac. Corp., 285 F.R.D. at 485.

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The fundamental problem with Facebook’s Declaration is that it sets up a false dichotomy
between Facebook’s minimal production to date and the purportedly

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Plaintiffs are not asking the impossible, but they are asking

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for a production that goes beyond Facebook’s intentionally and impermissibly narrow reading of

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Plaintiffs’ claims. The Declaration does not

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Similarly, in Paragraph 20, Mr. Harrison states that it would be

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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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Facebook nonetheless can and should conduct further
investigation to respond to Plaintiffs’ Requests.
Further, Facebook’s methodology in identifying

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Id. at ¶ 19 (emphasis
original). However, Mr. Harrison does not say

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Id. at ¶ 18. On its face, the

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Declaration suggests that further, reasonable investigation would enable Facebook to identify and

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produce

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In contrast to the conclusory statements offered by Facebook in regard to its purported

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burden, Plaintiffs’ need for the information at issue in the Requests is specific, immediately

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apparent, and pressing. The extent to which Facebook acquires message content and the manner

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in which is does so is critical to the issues at play in Facebook’s impending Motion for Summary

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Judgment and Plaintiffs’ impending Motion for Class Certification. See, Order re Motion to

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Enlarge Deadlines (Dkt. No. 117) (setting a deadline of November 13, 2015). Accordingly,

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pursuant to the proportionality analysis required by Fed. R. Civ. Proc. 26, Plaintiffs’ need for

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relevant discovery outweighs Facebook’s conclusory and implausible statements regarding

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burden, and Facebook should be compelled to provide fulsome responses to Plaintiffs’ Requests.

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Munoz v. PHH Corp., 2013 U.S. Dist. LEXIS 24671, *17 (E.D. Cal. Feb. 22, 2013) (finding

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relevance outweighed minimal burden, where resisting party made “generalized assertions and

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suggestions devoid of any tangible detail.”); Ramirez v. Trans Union, LLC, 2013 U.S. Dist.
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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LEXIS 34916, *4-5 (N.D. Cal. Mar. 13, 2013) (“Under the proportionality analysis called for by

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Federal Rule of Civil Procedure 26 the Court must weigh Plaintiff's need for this information

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against the burden on Defendant of providing this discovery.…Defendant conceded it did not

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know how long it would take to compile the requested information….Given Plaintiff's need for

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this information and in the absence of evidence regarding any specific burden, the Court grants

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Plaintiff's request to compel responses to these interrogatories.”).

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III.

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In addition, Plaintiffs are entitled to the already-identified information and
documents that Facebook concedes impose no additional burden to produce.

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Plaintiffs have identified, and requested production of, several specific items of

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information that Facebook concedes are not burdensome to produce. Moreover, these items of

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information are referenced conspicuously in Facebook’s current production, and therefore directly

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relate to documents that Facebook concedes are relevant. In addition to the information and

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documents referenced above, Plaintiffs are entitled to receive the following items of information:

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Each of the above-described documents relates to information that Facebook concedes is
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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discoverable and responsive to Plaintiffs’ Requests. Each of these documents contains content

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related to how

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In response, Facebook contends that

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As

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Plaintiffs seek injunctive relief related to Facebook’s message scanning practices, having an

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understanding of the depth and breadth of

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Moreover,

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If other documents purport to provide additional

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clarification—as the above-referenced documents do—then they must be produced. Even taking

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Facebook’s statements at face value, it is nonetheless clear that the content of

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Refusal to produce relevant documents in this instance is particularly egregious, as these

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documents are clearly responsive to prior Requests for Production propounded by Plaintiffs on

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January 26, 2015. See Plaintiffs’ First Set of Requests for Production, Requests Nos. 6,3 18,4 19,5

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The messages provided to Facebook spanned a date range of 2009 to 2014.
Seeking “[a]ll Documents and ESI related to each Process and/or piece of Architecture involved
in the acquisition of data, metadata, or other content from Private Messages, for purposes of
creating, augmenting, or otherwise maintaining Facebook User Data Profiles.” Ex. 3 at p. 10.
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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and 216 (Ex. 3).

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Accordingly, the above-described documents, and any prior versions thereof, should be
produced.

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created from private messages. In terms of identifying how

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Id. at ¶ 20.

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Therefore, consistent with Plaintiffs’ Requests, Facebook should provide an explanation of the

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purpose of each

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This does not require Facebook to identify any new information, but simply requires Facebook to

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contextualize what it has so far produced. Doing so would, in Facebook’s words, allow Plaintiffs

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to

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thus far produced.

Id. at ¶ 6. Accordingly, this information should be produced.
Identification of

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The Declaration makes reference to

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Footnote continued from previous page
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Seeking “[a]ll Documents and ESI sufficient to identify each Process and/or piece of
Architecture involved in the creation, augmentation, or maintenance of Facebook User Data
Profiles.” Ex. 3 at p. 12.
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Seeking “[a]ll Documents and ESI relating to how You use any Private Message Content,
including for purposes related to Facebook User Profiles and/or Targeted Advertising.” Ex. 3 at p.
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Seeking “[a]ll Documents and ESI relating to the use of Passive Likes – or any data, metadata,
or other information generated therefrom – as data points in Facebook User Data Profiles.” Ex. 3
at p. 12.
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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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Such clarification would not be burdensome to Facebook, but would

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be highly relevant to Plaintiffs, and accordingly it should be produced.

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IV.

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Conclusion
Plaintiffs’ Requests—which seek to identify the content Facebook acquires from users’

private messages, where that content is stored, and how that content is used—ask for information

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that is foundational to this litigation. In contrast, Facebook’s argument against fulsome

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production is nothing more than a return to its consistently unsuccessful attempt to reframe this

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litigation to the narrowest possible portion of its conduct. Since Facebook’s Declaration provides

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no substantive evidence of burden from identifying

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it should be compelled to fully respond to Plaintiffs’ Requests. In addition,

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Plaintiffs are entitled to the information identified in Section III, supra, as Facebook has already

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conceded that it would face no burden in collecting those documents.

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Dated: October 8, 2015

Respectfully submitted,

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

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/s/ Michael W. Sobol
Michael W. Sobol

Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)

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Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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CARNEY BATES & PULLIAM, PLLC
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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ RESPONSE TO DECLARATION
OF DALE HARRISON
CASE NO. 13-CV-05996-PJH (MEJ)