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 DIVISON

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

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

Defendant.

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Gibson, Dunn &
Crutcher LLP

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

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I, Joshua Jessen, declare as follows:
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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 Opposition to Plaintiffs’ Renewed Motion to Continue Deadlines (Dkt. 134;

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the “Motion”). Unless otherwise stated, the following facts are within my personal knowledge and, if

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called and sworn as a witness, I could and would testify competently to these facts.

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2.

Between February 2015 and September 30, 2015, Facebook made approximately 12

document productions totaling approximately 7,858 pages. This included a June 1 production that

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contained many technical documents, as well as the core e-mails relevant to Plaintiffs’ claims.

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Additionally, Facebook made all of the relevant source code available to Plaintiffs and their experts

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toward the end of July.
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Facebook made its thirteenth document production on October 13, 2015, consisting of

approximately 2,656 pages of documents. Approximately 866 pages of this production consisted of a
single document that had been sent to approximately 866 recipients. My colleague, Jeana Maute,
notified Plaintiffs’ counsel of this issue on October 7 in an e-mail that stated in pertinent part:
David, as I noted in my email last week, we have identified a set of documents that
contain a number of very close (but not exact) duplicates. Specifically, we have
identified several hundred versions of an email that is duplicative of a document we
have already produced to Plaintiffs; the only difference among the versions is that they
reflect approximately 900 different recipients … Plaintiffs recently complained about
receiving near-duplicate documents. Given these complaints, one alternative is that
we can provide a list of all recipients of this document, along with an additional
copy. We will plan to proceed in that fashion unless you want all duplicate copies.
In response to this e-mail, Plaintiffs’ counsel asked that Facebook “produce all copies of the
document.” A true and correct copy of this e-mail exchange is attached hereto as Exhibit 1.

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

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4.

Excluding the approximately 866 pages of duplicates, Facebook’s October 13

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production constitutes approximately 13% of Facebook’s production to date. This calculation does

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not include Facebook’s July production of what Plaintiffs have described as “over 10 million lines of

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[source] code” (Dkt. 109-2 ¶ 16).

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5.

On October 14, Magistrate Judge James issued a discovery order that addressed three

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separate discovery letter briefs, including briefs concerning (i) Plaintiffs’ Request for Production

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Nos. 53-60, (ii) Plaintiffs’ Interrogatory No. 8 and Request for Production No. 41, and (iii) Topics 1

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and 2 of Plaintiffs’ 30(b)(6) deposition notice (both of which concerned Facebook’s source code).

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(Dkt. 130.) The order was in Plaintiffs’ favor and stated that “Facebook must respond to these

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requests in accordance with this Order no later than October 28, 2015.” (Id. at 18.)
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In response to that order, Facebook undertook extensive efforts to gather and review

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additional documents and information (much of which is not relevant to Plaintiffs’ claims), and

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Facebook made a further document production on October 28 pursuant to the order. That production

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(Facebook’s fourteenth) consisted of approximately 3,292 pages of documents. The same day,

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Facebook also served Supplemental Responses and Objections to Plaintiffs’ Request for Production

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Nos. 54, 55, and 57. (Dkt. 134-2.) Facebook’s supplemental responses reflect the fact that

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

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privileged documents” responsive to these three requests during the relevant time period. (Id.)

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Contrary to Plaintiffs’ statement in their Motion, Facebook is not “continu[ing] to withhold entire

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categories of documents, standing on objections overruled by Magistrate Judge Maria-Elena James,

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even though it does not appeal her order with respect to those categories.” (Dkt. 134 at 2.) On the

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contrary, Facebook searched for—but did not locate—documents responsive to these requests during

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the relevant time period even before Plaintiffs filed their “damages” letter brief. (Dkt. 112.) Indeed,

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I informed Plaintiffs of this fact for the first time two months ago (on September 2). Nonetheless,

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following entry of the discovery order, Facebook renewed its search for documents responsive to

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these requests. It again located none.

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Gibson, Dunn &
Crutcher LLP

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

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7.

In response to the discovery order, Facebook also served a lengthy supplemental

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response to Plaintiffs’ Interrogatory No. 8—which took considerable time to research and assemble—

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providing even more detailed technical information about Facebook’s systems. The supplemental

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portion of that response was approximately nine pages long, which stands in sharp contrast to the

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terse interrogatory responses Plaintiffs generally have served in this case, which often have done little

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more than refer Facebook back to the Complaint.

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8.

On October 28, again in response to the discovery order, Facebook produced two

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experienced software engineers to provide extensive 30(b)(6) deposition testimony on the relevant

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portions of Facebook’s source code. I represented Facebook at those depositions, which lasted from

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approximately 9:30 a.m. to 7:30 p.m. Neither during nor after those depositions did Plaintiffs’

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counsel indicate to me that Plaintiffs planned to file a second motion to continue the case deadlines

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the very next day. Plaintiffs made no effort to meet and confer. In fact, the first time my colleagues

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and I learned of Plaintiffs’ “renewed” motion was when we received electronic notification that it had

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been filed on October 29 at approximately 9:54 p.m.

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9.

Plaintiffs and their experts have collectively spent approximately 48 days reviewing

Facebook’s source code.
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On October 28, Facebook also appealed two discrete portions of the discovery order

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concerning Plaintiffs’ Request for Production Nos. 53 and 60, which seek “all documents and ESI”

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regarding (i) the “monetary value” of “Facebook users” generally, and (ii) Facebook’s efforts during

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the relevant time period to encourage website developers to implement the “Like” button social

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plugin. (Dkt. 133.) Despite this appeal, Facebook’s October 28 production included representative

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documents responsive to these irrelevant and overbroad requests.

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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 Irvine,

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California, on November 2, 2015.

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Gibson, Dunn &
Crutcher LLP

/s/ Joshua Jessen
Joshua Jessen
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DECLARATION OF JOSHUA JESSEN IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION
TO PLAINTIFFS’ RENEWED MOTION TO CONTINUE DEADLINES
Case No. C 13-05996 PJH (MEJ)