Campbell et al v. Facebook Inc.

Filing 134

MOTION for Extension of Time to File Renewed Motion to Continue Class Certification and Summary Judgment Deadlines filed by Matthew Campbell, Michael Hurley. (Attachments: # 1 Declaration of Michael W. Sobol, # 2 Exhibit 1, # 3 Proposed Order)(Sobol, Michael) (Filed on 10/29/2015)

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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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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’ RENEWED MOTION TO
CONTINUE DEADLINES

Plaintiffs,
Judge:

Honorable Phyllis J. Hamilton

v.
FACEBOOK, INC.,
Defendant.

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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)

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I.

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INTRODUCTION
Plaintiffs respectfully submit this motion, pursuant to Civil Local Rules 6-1 and 6-3,

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requesting more time to amass a complete record upon which to base their motion for class

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certification and oppose summary judgment. This motion is based upon the extraordinary

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grounds that Defendant, Facebook, Inc., has failed to honor the representations it made to the

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Court when opposing Plaintiffs’ initial motion to continue the deadlines for class certification and

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summary judgment.

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Specifically, Facebook has (1) failed to adhere to its representation that it would

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substantially complete the production of documents relevant and necessary to these potentially

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dispositive motions by September 30, (2) continued to withhold entire categories of documents,

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standing on objections overruled by Magistrate Judge Maria-Elena James, even though it does not

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appeal her order with respect to those categories, and (3) further delayed the substantial

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completion of necessary discovery by filing objections to aspects of Judge James’s Order. The

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documents Facebook continues to hide are potentially critical to the upcoming dispositive

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motions in the case.

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As a result, Plaintiffs have not received access to the record to which they are entitled to

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build their case against Facebook, and to assess Facebook’s defenses and Plaintiffs’ theories for

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proving damages on a class-wide basis. For these reasons, and as described below, Plaintiffs

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respectfully seek a further 60-day extension of the deadlines for class certification and summary

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judgment.

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II.

FACTUAL BACKGROUND AND ARGUMENT

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The parties, jointly, proposed a relatively aggressive schedule for this litigation in their

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Joint Case Management Conference Statement, which the Court approved, setting October 14,

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2015 as the deadline to file motions for class certification and summary judgment. (Dkt. 60; Dkt.

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62). On September 16, in light of time-consuming disputes over discovery that had previously

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been resolved, as well as several disputes then-pending before Magistrate Judge Maria-Elena

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James, Plaintiffs sought a 90-day extension of these deadlines. (Dkt. 109). Facebook opposed

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the motion, arguing that an extension of just 30 days would provide sufficient time for Plaintiffs
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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)

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and their experts to review, analyze, and incorporate all of the relevant and necessary discovery,

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which, Facebook claimed, had largely already been produced, or shortly would be produced.

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(Dkt. 114).

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In support of its contentions, Facebook relied heavily upon its own representations that its

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document production would be “substantially complete” by September 30. See Dkt. 114-1,

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(Jessen Decl.), ¶ 21; Dkt. 114, at 4-5 (“. . . Facebook expects that its production will be

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substantially completed by September 30.”) (emphasis original). Reasonably crediting

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Facebook’s representations and sworn declaration, the Court granted just a 30-day extension, to

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November 13, and expressly held that no further extensions of time would be granted. (Dkt.

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117).

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Since then, Facebook has materially reneged on its own representations, leaving Plaintiffs

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very little time to review potentially critical discovery, which is still being produced. For

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example, despite promising substantial completion of discovery by September 30, Facebook

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waited until October 13 to produce 2,656 pages of documents, constituting 19% of its total,

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current, document production. Facebook produced another 24% of its total production near

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midnight on October 28, a full month after September 30.
In short, 43% of Facebook’s entire production,1 comprising documents important to

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Plaintiffs’ motion for class certification and ability to defend against summary judgment, was

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made after the September 30 deadline upon which this Court relied in setting November 13 as

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the deadline to move for class certification. Indeed, Facebook’s largest single-day production to

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date, representing about one-quarter of its entire production, was made at midnight last night.

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Moreover, Facebook’s midnight production contains, for the first time in any substantial sense,

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many documents in native format (such as data spreadsheets), which will require intensive

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review.

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Plaintiffs’ motion for class certification will be unfairly prejudiced if Plaintiffs are not

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granted the time necessary to review and analyze these documents.2 Facebook’s October 28

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As measured by number of pages in the production. See Sobol Decl. ¶¶ 4-5.
The trial court will apply a “rigorous analysis” to Plaintiffs’ class certification motion. Comcast
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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)

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production contains information potentially crucial to Plaintiffs’ expert’s analysis of class-wide

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proof of damages, as well as Plaintiffs’ understanding of Facebook’s core processes for scanning

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and utilizing content obtained from private messages, which will be at issue on Facebook’s

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motion for summary judgment. See Dkt. 130 (Oct. 14, 2015 Discovery Order), at 7, 12-13

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(holding that the requests to which Facebook was compelled to respond go “not only to Plaintiff’s

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affirmative claims, but also Facebook’s defenses,” and/or “could assist [Plaintiffs] in establishing

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a model or methodology for class-wide relief.”) Under the November 13 deadline to move to

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certify the class, Plaintiffs and their experts will have just two weeks to fully analyze and

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incorporate this information into their argument and analyses.

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Moreover, based upon the limited review Plaintiffs have done since receiving it late last

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night, Facebook’s court-ordered production appears to be deficient. In response to several

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categories of class-wide damages requests, Facebook has merely renewed its already-overruled

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objections, and stated that subject to such objections, and subject “to the ongoing nature of

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discovery in this action,” Facebook was unable to locate a single responsive document – a

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contention that will require additional meet and confer discussions, and possibly further briefing

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before Judge James. See Sobol Decl. Ex. 1 (Suppl. Resps. to RFPs 54, 55, 57).

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In addition, on October 28, Facebook filed a formal motion for relief from Judge James’s

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October 14 Order as applied to two of eight categories of documents that had been adjudicated

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relevant to damages and class-wide relief. (Dkt. 133). Even if this Court were to resolve that

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motion for relief in Plaintiffs’ favor today, the motion has already further delayed substantial

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completion of Facebook’s production, potentially until after the current deadline of November 13

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to move for class certification.

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Another short extension would not unduly delay this litigation, particularly in light of

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Facebook’s failure to honor the representations that it has previously made to the Court about the

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status of its document production. Nor would an additional 60-day extension result in a case

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schedule longer than the typical schedule in similar class action lawsuits.3

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Corp. v. Behrend, 133 S. Ct. 1426 (2013).
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Plaintiffs recognize that every court, and every case, is different. Nevertheless, it has been

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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)

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III.

CONCLUSION
Plaintiffs bring this motion reluctantly, and only due to the extraordinary discrepancy

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between Facebook’s prior representations about the discovery that Plaintiffs would receive by

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September 30, and the timing of the production that Plaintiffs have actually received. Class

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certification, which is not a determination on the merits, nevertheless “generally involves

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considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of

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action.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011). Accordingly,

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Plaintiffs were constrained to raise these issues again with the Court, prior to submitting their

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motion for class certification based upon a record substantially and materially less complete than

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the record to which Plaintiffs are entitled at this stage in the proceedings, and less complete than

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the record which this Court was previously informed that Plaintiffs would receive.

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For the foregoing reasons, Plaintiffs request that the Court modify the schedule as follows:

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The summary judgment motion and class certification motion shall be filed by January 20, 2016;

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oppositions shall be filed by March 23, 2016; replies shall be filed by April 20, 2016 with a

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hearing to be noticed for May 18, 2016 at 9:00 a.m, or as the Court’s calendar permits.

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Should the Court deny Plaintiffs’ motion, Plaintiffs will be prepared to move for class

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certification based upon a limited review of the recently-produced discovery, on November 13, as

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currently scheduled.

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suggested, incorrectly, that this Court should deny any further extension of time because it would
delay this case as compared to In re Gmail Litig., No. 13-md-02430-LHK (N.D. Cal.) and In re
Yahoo Mail Litig., No. 13-cv-04980-LHK (N.D. Cal.). See Dkt. 114-1 (Jessen Decl.) ¶ 3. In
reality, the Gmail litigation had been pending for approximately four years when the Court issued
its final ruling on class certification (See Dunbar v. Google, Inc., No. 10-cv-00194 (E.D. Texas)
(later consolidated in this District)), and discovery had begun approximately three years prior to
that ruling. Dunbar, No. 10-cv-00194, Dkt. 221-2, Ex. A, at 3:17-3:28; Dkt. 224. Likewise,
Yahoo Mail, filed three months before this case on October 2, 2013, has proceeded on
approximately the same schedule as this litigation, with major case events occurring within 3-4
months of one another. The sole notable exception, that the Yahoo Mail plaintiffs filed an early
motion for class certification (in February 2015) does not support the conclusion that a longer
schedule would be inappropriate in this case. Critically, in Yahoo Mail, the putative class did not
seek to recover monetary damages (No. 13-cv-04980, Dkt. 60, Ex. 3) – obviating, for that class,
the need for the type of damages discovery that Plaintiffs need from Facebook here, and in
response to which Facebook failed to provide a single responsive document until October 28.
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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)

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Dated: October 29, 2015

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:

/s/ Michael W. Sobol
Michael W. Sobol

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
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592
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
Attorneys for Plaintiffs and the Proposed Class

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RENEWED MOTION TO CONTINUE DEADLINES; CASE NO. C 13-5996 PJH (MEJ)