Campbell et al v. Facebook Inc.
Filing
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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)
msobol@lchb.com
David T. Rudolph (State Bar No. 233457)
drudolph@lchb.com
Melissa Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
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Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: 501.312.8500
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)
msobol@lchb.com
David T. Rudolph (State Bar No. 233457)
drudolph@lchb.com
Melissa Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Rachel Geman
rgeman@lchb.com
Nicholas Diamand
ndiamand@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: 212.355.9500
Facsimile: 212.355.9592
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: 501.312.8500
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)
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