Campbell et al v. Facebook Inc.

Filing 141

NOTICE by Matthew Campbell, Michael Hurley re 131 Order on Administrative Motion to File Under Seal,,,, 110 , 111 , 121 , 127 (Attachments: # 1 Exhibit 1 Letter Brief re Plaintiffs' Third Set of RFPs (Dkt. 112), # 2 Exhibit 2 Letter Brief re Plaintiffs' Interrogatory 8 and RFP 41 (Dkt. 113) and Exhibit E thereto (Dkt. 113-5), # 3 Exhibit 3 Exhibits A-D to Letter Brief re Notice of 30(b)(6) Deposition (Dkt. 122-1 122-4), # 4 Exhibit 4 Plaintiffs' Response to Harrison Declaration (Dkt. 128))(Gardner, Melissa) (Filed on 11/16/2015)

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EXHIBIT 4 UNREDACTED VERSION OF DOCUMENT(S) SOUGHT TO BE SEALED 1 2 3 4 5 6 7 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 12 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 13 Attorneys for Plaintiffs and the Proposed Class 8 9 10 11 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 19 MATTHEW CAMPBELL and MICHAEL HURLEY, on behalf of themselves and all others similarly situated, 20 Case No. C 13-05996 PJH (MEJ) PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON Plaintiff, Judge: 21 Honorable Maria-Elena James v. 22 FACEBOOK, INC., 23 Defendant. 24 25 26 27 28 PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 Pursuant to this Court’s Order of September 28, 2015 (Dkt. No. 118), Plaintiffs hereby 2 submit this Response to the Declaration of Dale Harrison. 3 I. Introduction 4 Facebook’s position as articulated in the Declaration of Dale Harrison is not plausible. It 5 asserts that only the Objects and Associations concerning the incremental increase in the Like 6 counter can be produced without undue burden. Quite conveniently, according to Facebook, any 7 production that goes beyond Facebook’s blatantly self-serving mischaracterization of the 8 Complaint is too burdensome. 9 The Objects and Associations Plaintiffs seek are essential to their claims because they 10 show: (1) what content Facebook acquires from users’ private messages, (2) where that content is 11 stored, and (3) how that content is used. Rather than establish the burden in producing this 12 information, Facebook seeks to limit its production to the 13 associated with the Like counter. This Court, during the hearing on 14 this motion, and in a prior ruling in this case, has rejected the notion that Plaintiffs’ claims are 15 limited to the incremental changes in the Like counter. The all-too-convenient line Facebook 16 attempts to draw on what is too burdensome to produce in this case falls on exactly this 17 erroneous, and previously rejected, rewriting of Plaintiffs’ Complaint. However, when Facebook 18 complained in prior briefing of Plaintiffs’ challenge to “any ‘interception’ of messages containing 19 URLs for any purpose,” the Court found that “Facebook does not explain or cite anything in the 20 record that would indicate that Plaintiffs are changing theories or fundamentally altering their 21 position.” Discovery Order at p. 7 (Dkt. No. 83) (emphasis original). Instead, the Court held that 22 Plaintiffs’ claims, which relate to all message scanning and content acquisition violative of ECPA 23 and CIPA, were substantiated by the CAC’s “detailed factual allegations.” Id. (citing CAC ¶¶ 63, 24 64, 73, 78-82, 86-67, 94, 96, 104-109). 25 Facebook offers no factual basis for why other Objects and Associations beyond those 26 concerning incrementing the Like counter would be too burdensome too produce. If the Court is 27 to accept Facebook’s position, Facebook will have successfully avoided production of 28 information critical to Plaintiffs’ allegations that Facebook obtained data from users’ private -1- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 messages “for the current or future objective of accumulating and analyzing user data and 2 thereafter refining user profiles and/or enhancing its targeted advertising efforts.” Consolidated 3 Amended Complaint (“CAC”) at ¶ 30 (Dkt. No. 25). 4 Per the Court’s Order on September 29, 2015, the purpose of the Declaration of Dale 5 Harrison on behalf of Defendant Facebook, Inc. (“Declaration”) was to “explain the burden of 6 extracting the information as discussed on the record.” (Dkt. No. 118). 7 demonstrated that it is too burdensome to supplement its response to Plaintiffs’ Interrogatory No. 8 8 and Request for Production No. 41 (“Requests”). Indeed, the seven-page Declaration contains 9 only two paragraphs (nineteen and twenty) focused on this topic, and those paragraphs contain 10 only conclusory statements (the rest of the Declaration explains Facebook’s production to date.). 11 The Declaration fails to substantiate that it would be too difficult to respond to Plaintiffs’ 12 Requests. Moreover, as discussed in Section III, infra, Facebook concedes that there would be no 13 burden in collecting many of the documents Plaintiffs seek. Thus, Facebook fails to carry its 14 burden, and Plaintiffs are entitled to responses disclosing all content Facebook acquires from 15 messages, how that content is used, and how that content is stored. 16 II. 17 18 Facebook has not Facebook has not identified any burden substantial enough to justify its refusal to respond to Plaintiffs’ Requests. The presumption of discoverability is Facebook’s to rebut—if a requesting party shows 19 that it both sought relevant documents and then made a good faith effort to meet and confer with 20 its opponent, “the resisting party then carries a ‘heavy burden’ of demonstrating why discovery 21 should be denied.” In re Mgm Mirage Secs. Litig., 2014 U.S. Dist. LEXIS 165486, at *10-11 (D. 22 Nev. Nov. 25, 2014) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)); 23 see also La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 24 2012) (“[T]he party opposing discovery has the burden of showing that discovery should not be 25 allowed, and also has the burden of clarifying, explaining and supporting its objections with 26 competent evidence.”). 27 Facebook’s Declaration lacks the requisite specificity, and thus fails to carry this burden. 28 In a conclusory fashion, Facebook’s declarant states that it “is likely impossible” to identify “all” -2- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 Objects created from users’ private messages; in support, he states that doing so “may require 2 consulting with engineers in every group” whose work created Objects, and asking those 3 engineers whether they believe said Objects could be created from private message content. 4 Declaration at ¶ 19 (emphasis added). Mr. Harrison further states that he “would have to try to 5 ascertain where in the Facebook system each of these types of Objects may exist,” and would 6 have to “assess what existing Facebook search functionality and tools are available for searching 7 for…each such Object type.” Id. Put another way, Mr. Harrison takes the position that he cannot 8 identify or produce the Objects created from Facebook’s scans of private messages because doing 9 so would require him to (1) query the appropriate Facebook employees as to what Objects are 10 created from private message content, (2) identify the databases where Facebook stores those 11 Objects, and (3) determine whether those databases are searchable via “existing search 12 functionality.” Id. This is simply a restatement of what Plaintiffs’ asked Facebook to do through 13 their Requests; it is not a suitable articulation of burden.1 14 Moreover, even where Mr. Harrison departs from generalities, his statements are always 15 conditional: he “may” have to consult with additional engineers; it “might” be necessary to write 16 new code to identify Objects; it “could take hundreds of man hours” to search for and collect the 17 Objects at issue in Plaintiffs’ Requests. Declaration at ¶ 19 (emphasis added). Such conclusory 18 allegations, and nothing more, fail to rebut the presumption of discoverability and the 19 proportionality of Plaintiffs’ Requests. La. Pac. Corp., 285 F.R.D. at 485. 20 The fundamental problem with Facebook’s Declaration is that it sets up a false dichotomy 21 between Facebook’s minimal production to date and the purportedly “impossible” task of 22 identifying every conceivable Object and Association that was ever created or used as a result of 23 Facebook’s private message function. Plaintiffs are not asking the impossible, but they are asking 24 for a production that goes beyond Facebook’s intentionally and impermissibly narrow reading of 25 Plaintiffs’ claims. The Declaration does not address whether additional information can 26 1 27 28 Similarly, in Paragraph 20, Mr. Harrison states that it would be “outside the scope of any single engineer’s personal knowledge…to develop a list of all possible uses of Objects and Associations” created from private message content, and that “the abstract hypothetical question as to all possible uses is likely impossible to answer.” Tellingly, this only indicates that a “single” engineer cannot identify “all possible uses of Objects and Associations.” -3- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 reasonably be provided; instead it starts from the flawed premise that Facebook must produce 2 everything imaginable, or else produce nothing at all. Even if Facebook is correct that it engages 3 in such prolific acquisition of its users’ private message content that identification of “all” records 4 and uses of that content is “impossible,” Facebook nonetheless can and should conduct further 5 investigation to respond to Plaintiffs’ Requests. 6 Further, Facebook’s methodology in identifying the Objects and Associations to be 7 produced is profoundly opaque, with Mr. Harrison simply stating “I have inquired with others at 8 Facebook who would know.” Id. at ¶ 3. From this inquiry, Mr. Harrison says that he cannot 9 conclusively determine “all” Objects related to Plaintiffs’ messages. Id. at ¶ 19 (emphasis 10 original). However, Mr. Harrison does not say that he is unaware of “any” additional Objects or 11 Associations, nor does he say that a reasonable search would not identify additional Objects or 12 Associations. Moreover, Mr. Harrison states that he has spent only 25 hours on providing the 13 information thus far produced, and that an unspecified portion of that time was not actually spent 14 searching for information, but rather was spent “with counsel.” Id. at ¶ 18. On its face, the 15 Declaration suggests that further, reasonable investigation would enable Facebook to identify and 16 produce additional, relevant Objects and Associations. 17 In contrast to the conclusory statements offered by Facebook in regard to its purported 18 burden, Plaintiffs’ need for the information at issue in the Requests is specific, immediately 19 apparent, and pressing. The extent to which Facebook acquires message content and the manner 20 in which is does so is critical to the issues at play in Facebook’s impending Motion for Summary 21 Judgment and Plaintiffs’ impending Motion for Class Certification. See, Order re Motion to 22 Enlarge Deadlines (Dkt. No. 117) (setting a deadline of November 13, 2015). Accordingly, 23 pursuant to the proportionality analysis required by Fed. R. Civ. Proc. 26, Plaintiffs’ need for 24 relevant discovery outweighs Facebook’s conclusory and implausible statements regarding 25 burden, and Facebook should be compelled to provide fulsome responses to Plaintiffs’ Requests. 26 Munoz v. PHH Corp., 2013 U.S. Dist. LEXIS 24671, *17 (E.D. Cal. Feb. 22, 2013) (finding 27 relevance outweighed minimal burden, where resisting party made “generalized assertions and 28 suggestions devoid of any tangible detail.”); Ramirez v. Trans Union, LLC, 2013 U.S. Dist. -4- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 LEXIS 34916, *4-5 (N.D. Cal. Mar. 13, 2013) (“Under the proportionality analysis called for by 2 Federal Rule of Civil Procedure 26 the Court must weigh Plaintiff's need for this information 3 against the burden on Defendant of providing this discovery.…Defendant conceded it did not 4 know how long it would take to compile the requested information….Given Plaintiff's need for 5 this information and in the absence of evidence regarding any specific burden, the Court grants 6 Plaintiff's request to compel responses to these interrogatories.”). 7 III. 8 In addition, Plaintiffs are entitled to the already-identified information and documents that Facebook concedes impose no additional burden to produce. 9 Plaintiffs have identified, and requested production of, several specific items of 10 information that Facebook concedes are not burdensome to produce. Moreover, these items of 11 information are referenced conspicuously in Facebook’s current production, and therefore directly 12 relate to documents that Facebook concedes are relevant. In addition to the information and 13 documents referenced above, Plaintiffs are entitled to receive the following items of information: 14 The hyperlinked explanatory documents relating to 15 previously with the Court, 16 – As discussed explanatory text, stating in pertinent part: contain explanatory text and a hyperlink to more 17 18 19 Similarly, the same document contains 20 additional hyperlinks that give further context to the documents Facebook has provided (and the 21 way in which Objects and Associations are stored and rendered by Facebook). For example, 22 hyperlinks exist that allow the viewer to 23 24 25 26 27 28 Each of the above-described documents relates to information that Facebook concedes is -5- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 discoverable and responsive to Plaintiffs’ Requests. Each of these documents contains content 2 related to how Facebook stores and utilizes Objects and Associations created from URLs within 3 private messages. In response, Facebook contends that 4 5 6 7 8 9 10 .2 As 11 12 Plaintiffs seek injunctive relief related to Facebook’s message scanning practices, having an 13 understanding of the depth and breadth of Facebook’s current functionality for data obtained from 14 messages is critical. 15 Moreover, Facebook has not stated that any meaningful differences exist between its 16 current code and prior iterations of the code. If other documents purport to provide additional 17 clarification—as the above-referenced documents do—then they must be produced. Even taking 18 Facebook’s statements at face value, it is nonetheless clear that the content of the hyperlinked 19 page would not be burdensome to produce and is highly relevant. Additionally, if there are 20 earlier iterations of these documents in existence, from 2013 and before, Facebook must provide 21 those and in fact should have produced those long ago. Among other things, these documents 22 purport to describe 23 case. Refusal to produce relevant documents in this instance is particularly egregious, as these 24 documents are clearly responsive to prior Requests for Production propounded by Plaintiffs on 25 January 26, 2015. See Plaintiffs’ First Set of Requests for Production, Requests Nos. 6,3 18,4 19,5 26 2 27 28 that Facebook always has maintained are central to this The messages provided to Facebook spanned a date range of 2009 to 2014. Seeking “[a]ll Documents and ESI related to each Process and/or piece of Architecture involved in the acquisition of data, metadata, or other content from Private Messages, for purposes of creating, augmenting, or otherwise maintaining Facebook User Data Profiles.” Ex. 3 at p. 10. 3 -6- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 and 216 (Ex. 3). 2 3 Accordingly, the above-described documents, and any prior versions thereof, should be produced. 4 5 6 7 8 9 10 11 created from private messages. In terms of identifying how 12 Id. at ¶ 20. 13 14 Therefore, consistent with Plaintiffs’ Requests, Facebook should provide an explanation of the 15 purpose of each 16 This does not require Facebook to identify any new information, but simply requires Facebook to 17 contextualize what it has so far produced. Doing so would, in Facebook’s words, allow Plaintiffs 18 to 19 20 thus far produced. Id. at ¶ 6. Accordingly, this information should be produced. Identification of – The Declaration makes reference to 21 22 23 24 25 26 27 28 that Mr. Harrison searched in order to acquire the information Footnote continued from previous page 4 Seeking “[a]ll Documents and ESI sufficient to identify each Process and/or piece of Architecture involved in the creation, augmentation, or maintenance of Facebook User Data Profiles.” Ex. 3 at p. 12. 5 Seeking “[a]ll Documents and ESI relating to how You use any Private Message Content, including for purposes related to Facebook User Profiles and/or Targeted Advertising.” Ex. 3 at p. 12. 6 Seeking “[a]ll Documents and ESI relating to the use of Passive Likes – or any data, metadata, or other information generated therefrom – as data points in Facebook User Data Profiles.” Ex. 3 at p. 12. -7- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 produced thus far. Id. at ¶¶ 13, 17. However, no further context is given as to these systems, 2 including whether they are identified by specific names, whether they have any additional 3 purpose beyond 4 access to them, and whether there are additional, comparable “systems” that may contain relevant 5 Objects and Associations. Such clarification would not be burdensome to Facebook, but would 6 be highly relevant to Plaintiffs, and accordingly it should be produced. 7 IV. 8 9 identified by Mr. Harrison, how they may be queried, who has Conclusion Plaintiffs’ Requests—which seek to identify the content Facebook acquires from users’ private messages, where that content is stored, and how that content is used—ask for information 10 that is foundational to this litigation. In contrast, Facebook’s argument against fulsome 11 production is nothing more than a return to its consistently unsuccessful attempt to reframe this 12 litigation to the narrowest possible portion of its conduct. Since Facebook’s Declaration provides 13 no substantive evidence of burden from identifying additional Objects and Associations created 14 from user messages, it should be compelled to fully respond to Plaintiffs’ Requests. In addition, 15 Plaintiffs are entitled to the information identified in Section III, supra, as Facebook has already 16 conceded that it would face no burden in collecting those documents. 17 Dated: October 8, 2015 Respectfully submitted, 18 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 19 By: 20 21 22 23 24 /s/ Michael W. Sobol Michael W. Sobol Michael W. Sobol (State Bar No. 194857) msobol@lchb.com Melissa Gardner (State Bar No. 289096) mgardner@lchb.com 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 25 26 27 28 -8- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ) 1 2 3 4 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 5 CARNEY BATES & PULLIAM, PLLC 6 11 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 12 Attorneys for Plaintiffs and the Proposed Class 7 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- PLAINTIFFS’ RESPONSE TO DECLARATION OF DALE HARRISON CASE NO. 13-CV-05996-PJH (MEJ)

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