Campbell et al v. Facebook Inc.

Filing 135

RESPONSE (re 134 MOTION for Extension of Time to File Renewed Motion to Continue Class Certification and Summary Judgment Deadlines ) filed byFacebook Inc.. (Attachments: # 1 Declaration of Joshua Jessen, # 2 Exhibit 1 to the Declaration of Joshua Jessen)(Jessen, Joshua) (Filed on 11/2/2015)

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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.,

Case No. C 13-05996 PJH
DEFENDANT FACEBOOK, INC.’S
OPPOSITION TO PLAINTIFFS’
RENEWED MOTION TO CONTINUE
DEADLINES
The Honorable Phyllis J. Hamilton

Defendant.

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)

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This Court should deny Plaintiffs’ second request to extend the class certification schedule in

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this case. On September 24, 2015, this Court denied Plaintiffs’ first request for a three-month

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extension and stated that “[n]o further extension of these dates will be granted.” (Dkt. 117.)

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Facebook had opposed Plaintiffs’ initial request and noted, among other things, that a three-month

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extension should not be granted because Plaintiffs had failed to follow the Court’s clear instruction at

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the March 12, 2015 Case Management Conference that the parties should focus their discovery

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efforts on the open issues from the Motion to Dismiss ruling and the information necessary for class

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certification. (Dkt. 114.) Nevertheless, Facebook did not oppose—and this Court ultimately

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granted—an additional month for Plaintiffs’ class certification motion. (Dkt. 117.)

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Plaintiffs now “renew” their previous failed Motion—seeking the same three-month extension

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they previously sought—on what they describe as the “extraordinary grounds” that Facebook “has

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failed to honor the representations it made to the Court when opposing Plaintiffs’ initial motion . . . .”

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(Dkt. 134 at 2; see also id. at 3 (asserting that Facebook has “materially reneged on its own

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representations”).) This accusation is demonstrably false, and Plaintiffs’ renewed request (which

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they did not even bother to notify Facebook they intended to file, as required by Local Rule 6-

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3(a)(2)) is replete with more inaccurate statements and baseless attacks on Facebook and its counsel.

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In opposing Plaintiffs’ prior Motion, which argued that Plaintiffs had not had sufficient time

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to review Facebook’s source code, Facebook explained (among other things) that Plaintiffs have been

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in possession of the “core documents relevant to [their] claims” since June 1, and have had access to

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the relevant source code—the “black box” Plaintiffs claimed they needed to understand Facebook’s

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processes—since the week of July 20. (Dkt. 114 at 5.) Facebook also noted at the time

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(September 21) that “[i]n any event, Facebook expects that its production will be substantially

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completed by September 30.” (Id. at 5-6.) It was for this reason that “Facebook [did] not oppose a

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modest, 30-day extension” of the case deadlines (id.), which the Court granted (Dkt. 117).

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Plaintiffs now claim that Facebook “failed to adhere to its representation” regarding when it

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expected its document production to be substantially complete (i.e., by September 30). Plaintiffs are

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incorrect. In fact, based upon the documents Facebook had agreed to produce (not documents that

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were the subject of the pending disputes before Magistrate Judge James as of September 21),

Gibson, Dunn &
Crutcher LLP

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)

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Facebook’s document production was substantially complete by September 30. (Jessen Decl. ¶¶ 2-4.)

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It is true that there were two additional productions made after September 30, but Plaintiffs

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intentionally mislead the Court about those productions:

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Facebook’s additional production on October 13—which was one month before the extended,

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November 13 deadline for Plaintiffs’ class certification motion—contained a large number of

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documents that Facebook had previously identified to Plaintiffs as near-duplicates and which

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were produced (in full) at Plaintiffs’ request. (Id. ¶ 3 & Ex. 1.) Specifically, Facebook asked

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Plaintiffs if they wanted Facebook to produce approximately 900 copies of the same

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document, or if they preferred one copy with a list of all recipients. (Id.) In response,

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Plaintiffs asked for all copies. (Id.) These pages constituted roughly one-third of the 2,656

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pages produced on October 13. (Id.) Plaintiffs selectively omit this information in their

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renewed Motion. They also include all of these duplicates in support of their “calculation”

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that the October 13 production “constitut[ed] 19% of [Facebook’s] total, current, document

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production.” (Dkt. 134 at 3.) Excluding the duplicates, the October 13 production constitutes

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approximately 13% of Facebook’s production to date. (Jessen Decl. ¶ 4.) And Plaintiffs’

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calculation ignores entirely Facebook’s previous production of what Plaintiffs have described

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as “over 10 million lines of [source] code” (Dkt. 109-2 ¶ 16). (Id.)

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Plaintiffs also fail to disclose that Facebook’s more recent, October 28 production of 3,292

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pages was in response to Magistrate Judge James’ discovery order requiring Facebook to

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produce additional documents by that date. (Dkt. 130.) Other than filing a limited appeal on

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two discrete portions of that order (Dkt. 133), Facebook took extensive steps and complied

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with the order by producing additional documents and information on October 28, even

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though Facebook did not—and does not—believe these materials are relevant to Plaintiffs’

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claims or alleged damages. Rather than provide the Court with this important background,

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Plaintiffs accuse Facebook of “fail[ing] to honor the representations it made to the Court” in a

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September 21 filing (Dkt. 134 at 2) based on an order issued nearly three weeks later, and a

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document production made in compliance with that order.

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Gibson, Dunn &
Crutcher LLP

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)

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Plaintiffs’ lack of candor with the Court regarding these two post-September 30 document

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productions and their baseless attacks on Facebook (themes that unfortunately also pervaded

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Plaintiffs’ previous Motion) are disappointing and should not be rewarded with yet another extension.

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As explained in Facebook’s previous Opposition (Dkt. 114), Plaintiffs have had all the information

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they need to move for class certification (and oppose any early summary judgment motion1) for many

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months; they just do not like what the information shows. Facebook has granted Plaintiffs complete

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access to the relevant source code, which shows how message processing worked during the relevant

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time period. Incredibly, Plaintiffs and their experts collectively have spent approximately 48 days

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reviewing this code. (Jessen Decl. ¶ 9.) Moreover, on October 28 (again in response to the discovery

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order), Facebook produced two experienced software engineers who provided extensive 30(b)(6)

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deposition testimony on the relevant portions of Facebook’s source code. (Id. ¶ 8.) Plaintiffs do not

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mention any of this discovery in their brief. Nor do they inform the Court that (again in response to

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the discovery order), Facebook provided a lengthy supplemental interrogatory response—which took

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considerable time to research and assemble—providing even more detailed technical information

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about Facebook’s systems. (Id. ¶ 7.) As a result, Plaintiffs’ assertion—accompanied by no

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evidentiary citation—that “Facebook continues to hide” documents is baseless. (Dkt. 134 at 2.)

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In short, in response to the October 14 discovery order, Facebook and its counsel worked

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tirelessly to produce additional information to Plaintiffs (much of which is not even relevant to

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Plaintiffs’ claims). Those efforts should not be used against Facebook to extend the schedule. But

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that is precisely what Plaintiffs propose here—in response to these efforts, and Facebook’s

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production of information that Plaintiffs moved to compel, Plaintiffs filed an unannounced,

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“renewed” motion to extend the case deadlines.2

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During the Case Management Conference and in its minute order that followed, this Court stated
that it would permit Facebook to file an “early” summary judgment motion directed at the claims of
the named Plaintiffs. (Dkt. 62.) Facebook is still evaluating whether to bring such an early motion.
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Plaintiffs knew this information was coming pursuant to the discovery order, yet they waited until
almost 10:00 p.m. on October 29 to file their “renewed” motion. Plaintiffs also violated Civil Local
Rule 6-3(a)(2), which requires that the party seeking an extension “[d]escribe[] the efforts the party
has made to obtain a stipulation to the time change.” L.R. 6-3(a)(2). Plaintiffs made no attempt to
meet and confer with Facebook in advance of their “renewed” motion, and this failure to comply with
the Rule is particularly indefensible here, given this Court’s instruction that “[n]o further extension of
the dates will be granted” (Dkt. 117), Plaintiffs’ conversations with Facebook’s counsel regarding
[Footnote continued on next page]
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)

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Plaintiffs’ remaining arguments are equally meritless. First, Plaintiffs claim that Facebook

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has “continued to withhold entire categories of documents, standing on objections overruled by

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Magistrate Judge Maria-Elena James, even though it does not appeal her order with respect to those

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categories.” (Dkt. 134 at 2.) This statement is false. As Facebook explained in its first supplemental

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responses to these three document requests—responses that reflect what Facebook told Plaintiffs over

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two weeks before Plaintiffs filed their motion on these requests on September 18—“Facebook has

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conducted a reasonable search and diligent inquiry, and it has not located any non-privileged

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documents” responsive to these requests during the relevant time period. (Dkt. 134-2 at 10, 12, 14.)

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In response to the discovery order, Facebook renewed its search for documents responsive to these

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requests, but again found none. (Jessen Decl. ¶ 6.) Facebook is not withholding documents

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responsive to these requests; rather, several searches have revealed that no such documents exist.

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Second, Plaintiffs also complain that Facebook has appealed two discrete portions of the

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discovery order (Dkt. 133), but they do not even attempt to explain (nor could they) how the

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overbroad requests Facebook has appealed (which seek all documents and ESI regarding (i) the

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“monetary value” of “Facebook users” generally, and (ii) Facebook’s undisputed and uncontroversial

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efforts during the relevant time period to encourage website developers to implement the “Like”

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button social plugin) are relevant to their claims or alleged damages, much less to their motion for

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class certification. Moreover, Facebook produced representative documents in response to these two

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requests on October 28. (Jessen Decl. ¶ 10.)

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Setting aside Plaintiffs’ lack of candor, their argument for a further extension ultimately boils

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down to the assertion that they purportedly need two additional months added to the schedule because

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of the outcome of the parties’ recent discovery disputes. But this Court was fully aware of these

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[Footnote continued from previous page]
whether Facebook would appeal the October 14 discovery order (Dkt. 133-1 ¶¶ 4-7), and the
Rule 30(b)(6) deposition on the day before this filing, when Plaintiffs’ counsel was in a room with a
Facebook attorney all day. (Jessen Decl. ¶ 8.) This noncompliance with the Rule is reason enough to
deny Plaintiffs’ renewed request. See, e.g., Centillium Comms., Inc. v. Atlantic Mut. Ins. Co., No.067824-SBA, 2008 WL728639, at *6 (N.D. Cal. Mar. 17, 2008) (striking motion where the movant
failed to meet and confer prior to filing its motion); Lucas v. Hertz Corp., No. 11-01581-LB, 2012
WL 3638568, at *4 (N.D. Cal. Aug. 22, 2012) (denying motion to shorten time under Rule 6-3 in part
because plaintiff failed to “describe the efforts he made to obtain a stipulation to the time change”).
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)

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discovery disputes when it denied Plaintiffs’ previous request for a three-month extension—in fact,

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this Court extended the schedule by one month “based on the ongoing discovery disputes.” (Dkt.

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117.) And Magistrate Judge James ordered the accelerated production date of October 28 in part

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because of “the impending motions deadlines.” (Dkt. 130 at 18.) All of the circumstances presented

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in Plaintiffs’ renewed request were presented to this Court last time, and Plaintiffs have presented no

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new information to the Court (other than the outcome of those previously-known discovery disputes)

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that provides any basis for reconsidering this Court’s ruling that “[n]o further extension of these dates

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will be granted.” (Dkt. 117.) See also L.R. 7-9(b) (motion for reconsideration not appropriate unless

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(1) “a material difference in fact or law exists from that which was presented to the Court before,”

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and the moving party “show[s] that in the exercise of reasonable diligence [it] did not know such fact

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or law at the time of the interlocutory order”; (2) “[t]he emergence of new material facts or a change

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of law occurring after the time of such order”; or (3) “[a] manifest failure by the Court”).

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As Facebook noted in its prior Opposition, “[b]y dragging out the schedule longer, Plaintiffs

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apparently hope they can uncover another basis for their lawsuit (or, perhaps, a new lawsuit

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altogether).” (Dkt. 114 at 5.) Discovery has shown Plaintiffs’ allegations of “wiretapping” to be

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without merit and inappropriate for class treatment, and Plaintiffs therefore appear to be searching for

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new areas to explore. But Plaintiffs have failed to show good cause for their requested three-month

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extension. This case has been pending for almost two years. The Motion should be denied.3

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Dated: November 2, 2015

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Gibson, Dunn &
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By:
/s/ Joshua A. Jessen
Attorneys for Defendant FACEBOOK, INC.

Facebook observed in its previous Opposition that the courts in the Gmail and Yahoo cases (the
cases that inspired this lawsuit) already decided class certification motions—Gmail within ten months
of the filing of a consolidated complaint and Yahoo (which was filed three months before this case)
approximately fifteen months after the filing of a consolidated complaint. (Dkt. 114 at 2; 114-1 ¶ 3.)
Plaintiffs do not dispute this, though they claim earlier iterations of the Gmail case in Texas permitted
“three years” of discovery (apparently the type of protracted schedule that Plaintiffs believe is
acceptable). They also claim the putative class in the Yahoo case “did not seek to recover monetary
damages … obviating …the need for the type of damages discovery that Plaintiffs need from
Facebook here.” (Dkt. 134 at 4 n.3.) But while it is true that the Yahoo plaintiffs did not seek to
certify a Rule 23(b)(3) damages class for strategic reasons, there is no indication that the plaintiffs
there did not seek discovery on all topics (including damages), and the early case management
statements in that case show that the plaintiffs planned to pursue monetary damages. See In re Yahoo
Mail Litig., Case No. 13-CV-04980-LHK (N.D. Cal.), Dkt. Nos. 24 at 8-9 & 42 at 8.
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)