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)

EXHIBIT 1

Chorba, Christopher
From:
Sent:
To:
Subject:

Sobol, Michael W. <[e-mail]>
Saturday, October 24, 2015 4:11 PM
Chorba, Christopher
Re: Campbell v. Facebook

Make a proposal that is concrete instead of talking in hypothetical
conjecture. We have an order from the court. What do you propose as an
alternative? I am waiting to hear.
Sent from my iPhone
> On Oct 24, 2015, at 5:20 PM, Chorba, Christopher
<[e-mail]> wrote:
>
> Ok. We will act accordingly. Clear you don't want to engage at all so we
will proceed with the court.
>
> On Oct 24, 2015, at 2:16 PM, Sobol, Michael W. <[e-mail]> wrote:
>
> Chris, while we won't have to disagree about what FB's position is
currently on the scope of permissible future inquiry of others 30(b)(6)
designees, we disagree with the position it takes thereon. I agree that
you have stated your view and are reserving your rights with regard to
your objections to what you characterize as seriatim topics. As I told you
already, that concern hasn't yet manifested and we can cross that bridge
if and when we come to it and it presents no impediment at the moment.
>
> As my prior note indicates, we have considered the request you made
regarding Facebook producing only a portion of the documents the court has
compelled Facebook to produce, and our position remains that they are well
within the proper scope of discovery and that they should be produced
forthwith.
>
> M
>
> Sent from my iPhone
>
> On Oct 23, 2015, at 8:24 PM, Chorba, Christopher
<[e-mail]<mailto:[e-mail]>> wrote:
>
> Michael—Thank you for your e-mail. As you know, we are working to
comply with the Magistrate Judge’s Order, and by now you’ve seen the
exchanges regarding the Rule 30(b)(6) deposition. Let me reiterate a
point that we discussed on our call, and that we have raised before—
Facebook objects to seriatim Rule 30(b)(6) topics. So the topics that
have been noticed and ordered are the only topics for which Facebook will
be deposed in this action. I don’t want there to be any ambiguities or
concerns or claims weeks or months from now about that.
1

>
> 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.
>
> 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 Plaintiffs’ need for this request, but
responding to this overly broad request as written will necessitate an
appeal.
>
> 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.
>
> 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.
>
> If not, though, we will have little choice but to raise these, and
perhaps other, issues with the District Court.
>
2

> Please let me know.
>
> Christopher Chorba
>
> GIBSON DUNN
>
> Gibson, Dunn & Crutcher LLP
> 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel [phone]
> • Fax [phone]
> [e-mail]<mailto:[e-mail]> •
> www.gibsondunn.com<http://www.gibsondunn.com>
>
> From: Sobol, Michael W. [mailto:[e-mail]]
> Sent: Tuesday, October 20, 2015 12:33 PM
> To: Chorba, Christopher
> Subject: Campbell v. Facebook
>
> Chris,
>
> I am writing to confirm, after our conversation yesterday, Plaintiffs’
view that pursuant to Magistrate Judge James’ October 14th order, Facebook
must produce the 30(b)(6) designee regarding its source code for
deposition no later than October 28, 2015. Please let us know in the next
day or two what dates the deponent will be available.
>
> This will also confirm Plaintiffs have considered the idea of a schedule
prioritizing compliance with the different discovery compelled by the
order. Plaintiffs’ view is that the discovery compelled fits well within
the proper scope of discovery and should be fully produced forthwith.
>
>
> [LCHB]
>
> Michael W. Sobol
> [e-mail]<mailto:[e-mail]>
> t 415.956.1000
> f 415.956.1008
> Lieff Cabraser Heimann & Bernstein, LLP
> 275 Battery Street, 29th Floor
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> www.lieffcabraser.com<http://www.lieffcabraser.com>
>
>
>
>
>
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3