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)
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)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?