Campbell et al v. Facebook Inc.

Filing 133

MOTION for Relief from Nondispositive Order of Magistrate Judge re 130 Discovery Order filed by Facebook Inc.. Responses due by 10/28/2015. (Attachments: # 1 Declaration of Christopher Chorba In Support Of Facebook, Inc.'s Motion for Relief from Nondispositive Order of Magistrate Judge, # 2 Exhibit 1 to Declaration of Christopher Chorba, # 3 Proposed Order)(Jessen, Joshua) (Filed on 10/28/2015)

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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 DIVISION

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

Case No. C 13-05996 PJH (MEJ)
DECLARATION OF CHRISTOPHER
CHORBA IN SUPPORT OF DEFENDANT
FACEBOOK, INC.’S MOTION FOR
RELIEF FROM NONDISPOSITIVE
PRETRIAL ORDER OF MAGISTRATE
JUDGE REGARDING CERTAIN OF
PLAINTIFFS’ REQUESTS FOR
PRODUCTION OF DOCUMENTS (DKT.
130)

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Gibson, Dunn &
Crutcher LLP

DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF FACEBOOK, INC.’S MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
Case No. C 13-05996 PJH (MEJ)

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I, Christopher Chorba, declare as follows:

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1.

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

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firm of Gibson, Dunn & Crutcher LLP, and I am one of the attorneys responsible for representing

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Defendant Facebook, Inc. (“Facebook”) in the above-captioned action. I submit this declaration in

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support of Facebook’s Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge

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Regarding Certain of Plaintiffs’ Requests for Production of Documents (Dkt. 130). Unless otherwise

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stated, the following facts are within my personal knowledge and, if called and sworn as a witness, I

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could and would testify competently to these facts.

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2.

On March 12, 2015, this Court held a Case Management Conference. (Dkt. 62.) In

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

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portion of the Statement, Plaintiffs asserted that “discovery is open for all purposes,” while Facebook

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“submit[ted] that the parties should focus their discovery on class certification issues and the issues

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identified in this Court’s ruling on the Motion to Dismiss.” (Id. at 9.) At the conference, which I

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attended, the Court stated that it “agree[d]” with Facebook and that the parties should focus their

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discovery efforts on class certification and the open issues from the Motion to Dismiss order.

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3.

On October 14, 2015, Magistrate Judge James issued an order that addressed three

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separate discovery letter briefs, including the above-referenced joint letter brief regarding Request for

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Production Nos. 53-60. (Dkt. 130.) Relevant to the accompanying Motion, the order granted

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Plaintiffs’ Motion to Compel Facebook’s responses to Request for Production Nos. 53-60 and

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required Facebook to respond to these and other discovery requests by October 28, 2015. (Id. at 13,

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18.) Magistrate Judge James also instructed the parties that “given the impending motions

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deadlines,” they may stipulate regarding the timeline for production. (Id. at 18.)

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4.

On Monday, October 19, 2015, I received a call from Michael Sobol, counsel for

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Plaintiffs. Mr. Sobol inquired as to whether Facebook intended to appeal Magistrate Judge James’

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order. I explained that Facebook was still analyzing the order, but that we already identified a few

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areas of concern. During this discussion, I identified Request for Production No. 53, which seeks “all

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documents and ESI” concerning efforts to assign a “monetary value” to “Facebook Users” generally,

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF FACEBOOK, INC.’S MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
Case No. C 13-05996 PJH (MEJ)

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and Request for Production No. 60, which seeks “all documents and ESI” relating to Facebook’s

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efforts to “increase and/or maximize the presence of the Like Social Plugin on Third Party websites.”

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I explained to Mr. Sobol that these requests, in particular the demand for “all documents and ESI”

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were overbroad, and that these particular requests were unrelated to Plaintiffs’ claims. Mr. Sobol

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cautioned that he was unable to commit to any compromises on the call, but he pledged to discuss

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with his colleagues and respond to my request. 1

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5.

On Tuesday, October 20, Mr. Sobol wrote to me to respond to my request that

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Plaintiffs consider a potential compromise surrounding Request Nos. 53 and 60. He wrote, in

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relevant part: “This will also confirm Plaintiffs have considered the idea of a schedule prioritizing

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compliance with the different discovery compelled by the order. Plaintiffs’ view is that the discovery

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compelled fits well within the proper scope of discovery and should be fully produced forthwith.”

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6.

After conferring with Facebook, I responded to Mr. Sobol’s email a few days later.

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After confirming that Facebook would produce its Rule 30(b)(6) witness on October 28, I discussed a

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potential compromise regarding Request Nos. 53 and 60:

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Separately, we do have some concerns about some of Plaintiffs’ damages RFPs,
which we will need to raise with the District Court unless we can work out a
compromise with you. In particular, certain of Plaintiffs’ RFPs seek the production
of large categories of information that are not tied to Plaintiffs’ claims or the damages
permitted by those claims, yet those RFPs seek the production of “all documents and
ESI” relating to these broad categories.

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For example, Request for Production No. 60, which we discussed on our call, seeks
the production of “[a]ll Documents and ESI relating to Your efforts, or efforts by
Third Parties on Your behalf—whether undertaken or contemplated but not
undertaken—to increase and/or maximize the presence of the Like Social Plugin on
Third Party websites.” This request seeks a large amount of irrelevant information
and, on its face, would seem to call for the production of every document generated
from April 2010 – December 2013 encouraging a third-party website to implement a
Like button social plugin. Moreover, it is not disputed that Facebook made efforts
during the relevant time period to encourage website developers to implement the
Like button social plugin. We are willing to search for and produce representative
documents sought by this request, or possibly to enter into a stipulation to obviate

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During this conversation, we also discussed other issues relating to the discovery order that do not
bear on this appeal, including Plaintiffs’ insistence that Facebook produce a Rule 30(b)(6) witness to
testify as to its source code by no later than October 28.
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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF FACEBOOK, INC.’S MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
Case No. C 13-05996 PJH (MEJ)

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Plaintiffs’ need for this request, but responding to this overly broad request as written
will necessitate an appeal.

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We also have concerns about Request for Production No. 53, which seeks the
production of “[a]ll Documents and ESI relating to Your efforts, or efforts by Third
Parties on Your behalf—whether undertaken or contemplated but not undertaken—to
assign a monetary value to Facebook Users, or to determine the monetary value of
data received or content collected by You from Facebook Users (and/or any
additional information derived therefrom), or to determine the revenue or profits
made from data received or content collected by You from Facebook Users (and/or
any additional information derived therefrom).” Facebook does report on average
revenue per user in its SEC filings, which is a simple calculation of total revenue
divided by the number of users. We assume Plaintiffs neither want nor need the
underlying data and calculations that go into this figure, but the language of the
request is not so limited.

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During our conversation earlier this week, you expressed a willingness to consider
reasonable compromises to avoid further motions practice. I hope you will consider
this request to minimize further disputes. In addition, during the meet-and-confer that
preceded Plaintiffs’ damages letter brief, Hank Bates suggested to Josh Jessen that
there likely were a handful of documents Plaintiffs truly needed for their damages
analysis. If Plaintiffs are able to identify those documents or otherwise narrow the
above requests, or to propose a stipulation on certain issues, we may be able to reach
a compromise to avoid an appeal.

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7.

Mr. Sobol responded the next day (Saturday) and rejected this proposed compromise,

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stating “we have considered the request you made regarding Facebook producing only a portion of

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the documents the court has compelled Facebook to produce, and our position remains that they are

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well within the proper scope of discovery and that they should be produced forthwith.” I responded

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and explained that Facebook would raise these issues with the Court. Mr. Sobol responded by

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requesting “a proposal that is concrete instead of talking in hypothetical conjecture,” ignoring the

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specific (and detailed) proposal discussed in the previous paragraph and Plaintiffs’ rejection of that

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proposed compromise. A true and correct copy of this October 20-24 email exchanged is attached to

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this Declaration as Exhibit 1.

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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 Los

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Angeles, California, on October 28, 2015.

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Gibson, Dunn &
Crutcher LLP

/s/ Christopher Chorba
Christopher Chorba
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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF FACEBOOK, INC.’S MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
Case No. C 13-05996 PJH (MEJ)

ATTORNEY ATTESTATION

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I, Joshua A. Jessen, attest that concurrence in the filing of this Declaration of Christopher
Chorba has been obtained from the signatory. I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct. Executed this 28th day of October,
2015, in Irvine, California.

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Dated: October 28, 2015

/s/ Joshua A. Jessen
Joshua A. Jessen

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF FACEBOOK, INC.’S MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
Case No. C 13-05996 PJH (MEJ)