Campbell et al v. Facebook Inc.

Filing 149

RESPONSE (re 138 MOTION to Certify Class ) Opposition to Plaintiffs Motion for Class Certification (Redacted) filed byFacebook Inc.. *** ATTACHMENTS 1, 7 LOCKED AT FILER'S REQUEST. SEE DOCUMENT 162 *** (Attachments: # 1 Declaration Declaration of Christopher Chorba In Support of Defendant Facebook, Inc.s Opposition to Plaintiffs Motion for Class Certification (Redacted), # 2 Declaration Declaration of Alex Himel In Support of Defendant Facebook, Inc.s Opposition to Plaintiffs Motion for Class Certification (Redacted), # 3 Declaration Declaration of Dan Fechete In Support of Defendant Facebook, Inc.s Opposition to Plaintiffs Motion for Class Certification (Redacted), # 4 Exhibit Expert Report of Dr. Benjamin Goldberg (Redacted), # 5 Exhibit Exhibit BBB to Expert Report of Dr. Benjamin Goldberg, # 6 Exhibit Exhibit CCC to Expert Report of Dr. Benjamin Goldberg, # 7 Exhibit Expert Report of Dr. Catherine Tucker (Redacted), # 8 Exhibit Exhibit DDD to Expert Report of Dr. Catherine Tucker, # 9 Exhibit Exhibit EEE - Expert Report of Dr. Catherine Tucker, # 10 Exhibit Exhibit FFF - Expert Report of Dr. Catherine Tucker, # 11 Exhibit Exhibit GGG - Expert Report of Dr. Catherine Tucker, # 12 Exhibit Exhibit HHH - Expert Report of Dr. Catherine Tucker, # 13 Exhibit Exhibit III - Expert Report of Dr. Catherine Tucker, # 14 Exhibit Exhibit JJJ - Expert Report of Dr. Catherine Tucker)(Chorba, Christopher) (Filed on 1/15/2016) Modified on 1/22/2016 (ewn, COURT STAFF). Modified on 1/22/2016 (vlkS, COURT STAFF).

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
PRIYANKA RAJAGOPALAN, SBN 278504
[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
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 and MICHAEL
HURLEY,
Plaintiffs,
v.
FACEBOOK, INC.,

Case No. C 13-05996 PJH
DECLARATION OF CHRISTOPHER
CHORBA IN SUPPORT OF DEFENDANT
FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

Defendant.

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REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

I, Christopher Chorba, declare as follows:

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1.

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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’ Motion for Class Certification (Dkt. 138). Unless

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otherwise stated, the following facts are within my personal knowledge and, if called and sworn as a

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witness, I could and would testify competently to these facts.

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I.

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Demonstratives
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and challenged practices. *

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a. Attached as Exhibit A is a chart summarizing a number of individualized issues

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concerning the named Plaintiffs and some putative class members.

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b. Attached as Exhibit B is a graphical representation of the steps required to send

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and receive a Facebook message with a URL preview attachment.

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c. Attached as Exhibit C are graphical representations of the individualized inquiries

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related to ascertainability.

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d. Attached as Exhibit D are charts summarizing the variability for the challenged

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practices.

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Attached as Exhibits A–D are demonstrative graphics regarding the named plaintiffs

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Facebook and its messaging service have often been the subject of public news

reports, blog posts, and other publications. Attached as Exhibit E is a chart summarizing seventyseven publicly available online publications, including, inter alia, news reports, articles, editorials,
and Facebook developer documentation, published between May 6, 2009 and August 7, 2013.
Attached as Exhibits F, G, H, I, J, and K are the corresponding seventy-seven publications, arranged
by Bates numbers FB000000066 to FB000000424 and produced by Facebook during this litigation.

*

For the Court’s convenience, and to avoid duplication in the numbering of the exhibits submitted
by Plaintiffs, Facebook has used letters rather than numbers to designate its exhibits.
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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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II.

Discovery Requests And Responses From Plaintiffs

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A.

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4.

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Attached as Exhibit M is a true and correct copy of relevant excerpts of the deposition

transcript of Plaintiff Michael Hurley on July 9, 2015.

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Attached as Exhibit L is a true and correct copy of relevant excerpts of the deposition

transcript of Plaintiff Matthew Campbell on May 19, 2015.

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Plaintiffs’ Deposition Testimony

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Attached as Exhibit N is a true and correct copy of relevant excerpts of the deposition

transcript of Mr. David Shadpour on October 1, 2015.

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B.

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7.

Plaintiffs’ Written Discovery Responses
Attached as Exhibit O is a true and correct copy of Plaintiff Campbell’s Corrected

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Objections and Responses to Defendant Facebook, Inc.’s First Set of Interrogatories, dated April 2,

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2015. As these responses reflect, Mr. Campbell has sent or received at least

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containing URLs between the time he filed this action (December 30, 2013), and the date of his

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responses (April 2, 2015).

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Facebook messages

Attached as Exhibit P is a true and correct copy of Plaintiff Hurley’s Objections and

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Responses to Defendant Facebook, Inc.’s First Set of Interrogatories, dated April 1, 2015. As these

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responses reflect, Mr. Hurley has sent or received at least

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between the time he filed this action (December 30, 2013), and the date of his responses (April 1,

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2015).

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Facebook messages containing URLs

Attached as Exhibit Q is a true and correct copy of (Former) Plaintiff Shadpour’s

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Corrected Objections and Responses to Defendant Facebook, Inc.’s First Set of Interrogatories, dated

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April 2, 2015. As these responses reflect, Mr. Shadpour has sent or received at least

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messages containing URLs between the time he filed this action (January 21, 2014), and the date of

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his responses (April 2, 2015).

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10.

Facebook

On April 10, 2015, Plaintiffs supplemented their responses to Facebook’s

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Interrogatories through a letter from counsel (David Rudolph). In particular, Plaintiffs supplemented

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their responses to Facebook’s Interrogatory No. 5 to describe the manner in which they learned of the

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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(Id.) At the time of the Responses, Facebook determined that

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(Id.) Facebook
produced documents related to its responses regarding the 19 messages. (Id. at 18 & Ex. A)
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Facebook also analyzed these messages to determine which of the messages (if any)

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had a possibility of incrementing a social plugin count on a third-party website. Although Facebook

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does not possess records to determine whether a particular third-party webpage displayed a social

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plugin count at the time Plaintiffs’ selected messages were either sent or received, the Internet

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Wayback Machine (https://archive.org/web/) is a “reliable” resource that Plaintiffs’ technical expert,

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Dr. Jennifer Golbeck, uses “pretty frequently” to view archived webpages. (Ex. EE, Golbeck Depo.

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Tr., at 20:7-21:3.)

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18.

For each of the remaining twelve messages selected by Plaintiffs and for which a share

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object was created, the Internet Wayback Machine revealed that for the 10 of 12 messages that did

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have a share object, there was no corresponding social plugin on the websites referenced by the URLs

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in Plaintiffs’ messages at or near the time the messages were sent. For example, on

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Thus, 10 of the 19 messages identified by Plaintiffs had a share
object but did not have a corresponding social plugin on the third-party website.
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For 1 of the 12 messages that did have a share object, the Internet Wayback Machine

did not have the webpage archived. That message was sent by

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20.

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Gardner.

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The remaining message was sent from Plaintiff Hurley to Plaintiffs’ counsel Melissa

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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III.

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Other Discovery Issues
A.

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In their Motion, Plaintiffs assert as follows:
Discovery also demonstrates that Facebook’s public-facing statements about
“procedural safeguards” for ensuring user privacy in product development are
false. Facebook has represented, inter alia, in its filings with the Security and
Exchange Commission that it has “a dedicated team of privacy professionals who
are involved in new product and feature development from design through
launch” and who conduct “ongoing review and monitoring of the way data is
handled by existing features and applications.” However, when asked to produce
documents sufficient to identify the individuals comprising this “dedicated team,”
Facebook responded that none existed.

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Facebook’s “Public-Facing Statements” and “Dedicated Team of Privacy
Professionals”

(Dkt. 138 at 20-21.)
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In fact, Facebook’s counsel never told Plaintiffs’ counsel that Facebook did not have a

“dedicated team of privacy professionals.” On the contrary, Facebook specifically denied Plaintiffs’
request to admit that there was no such team, and indeed there is such a team. Attached as Exhibit X
is a true and correct copy of Defendant Facebook, Inc.’s Responses and Objections to Plaintiffs’ First
Set of Requests for Admission dated June 29, 2015.
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Rather, Facebook’s counsel simply confirmed that, in response to a document request,

there was not a “specific list.” Plaintiffs’ request sought “documents” regarding “the ‘dedicated team
of privacy professionals’ identified on page 8 of Your Form 10-K for fiscal year ending
December 31, 2013.” (Dkt. 138-4, Ex. 31.) Facebook responded by explaining that it did not have a
document responsive to Request No. 29, listing members of its internal privacy team. Plaintiffs even
misstated the correspondence among counsel by omitting the bolded portion below in their brief:
With respect to Request No. 29, please be advised that there is no specific list of
the ‘dedicated team of privacy professionals’ referenced in the Request, but we
have already agreed to conduct a reasonable search for non-privileged
documents sufficient to identify Facebook’s current and former employees
who may possess knowledge relevant to the practice challenged in this action,
and we also have identified witnesses with relevant knowledge in Facebook’s
Initial Disclosures and responses to Plaintiffs’ Interrogatories.

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Plaintiffs attached Facebook’s complete response to the request as Exhibit 32 (Dkt. 138-4, Ex.

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32).

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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B.
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Plaintiffs’ Expanded Proposed Class Definition Exceeds The “Relevant Time
Period” For Discovery
Plaintiffs’ Consolidated Amended Complaint identified the following proposed class:

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“All natural-person Facebook users located within the United States who have sent or received

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private messages that included URLs in their content, from within two years before the filing of this

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action up through and including the date when Facebook ceased its practice,” which Plaintiffs alleged

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to be “at some point after it was exposed in October 2012.” (Dkt. 25 ¶ 59 & n.3.)

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25.

In their Motion for Class Certification, Plaintiffs now seek to certify a proposed class

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of all “Facebook users located within the United States who have sent, or received from a Facebook

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user, private messages that included URLs in their content (and from which Facebook generated a

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URL attachment), within two years before the filing of this action up through the date of

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certification of the class.” (Dkt. 138 at 10 (emphasis added).) In other words, Plaintiffs have now

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expanded their proposed class by over three years.

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26.

Plaintiffs’ new proposed class definition extends well beyond the relevant time period

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to which the parties expressly agreed for discovery. On April 7, 2015, Hank Bates, counsel for

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Plaintiffs, proposed that the “Relevant Time Period” for “producing documents” should be April 1,

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2010, to the date of filing the action, December 30, 2013. Attached as Exhibit Y is a true and correct

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copy of Mr. Bates’ letter dated April 7, 2015.

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After some further discussions between the parties, Facebook agreed to this time

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period in letters dated May 13 and June 12, 2015. Attached as Exhibits Z and AA are true and

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correct copies of these letters.

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Regarding the production of source code, the parties agreed (and stipulated, see

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Dkt. 90) to a slightly different time period—September 1, 2009 to December 31, 2012—reflecting the

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fact that Plaintiffs had alleged that the challenged practice had ceased “at some point after it was

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exposed in October 2012.” (Dkt. 25 ¶ 59 & n.3.)

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29.

Additionally, during depositions of Facebook’s witnesses, counsel for Plaintiffs

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repeatedly limited questions to the time period of “2010 to 2012” or “2010 to 2013.” Attached as

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Exhibits BB and CC are true and correct copies of excerpts of the deposition transcripts of Facebook

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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witnesses, Jiakai Liu and Ray He, dated June 30, 2015 and September 25, 2015, respectively,

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reflecting, inter alia, a handful of those questions.

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C.

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30.

Fernando Torres’ Expert Report And The Information He Claims That He
Needs To Complete His Damages Analysis
Plaintiffs’ proposed damages expert, Mr. Fernando Torres, testified that, in order to

complete his damages analysis, he needed additional information that is distinct from Plaintiffs’
previous damages discovery requests— which they represented were “critical to establishing” their
damages theory. Attached as Exhibit DD is a true and correct copy of relevant excerpts of the
deposition transcript of Mr. Fernando Torres on December 18, 2015.
31.

In support of prior discovery motions, Plaintiffs argued that they would be “unduly

prejudice[d]” without “discovery relevant to damages in this action.” (Dkt. 112 at 2; see also
Dkt. 109 at 2, 4 (arguing that “[w]ithout discovery into the revenue Facebook has generated . . .
Plaintiffs will be hampered in formulating a class-wide damages theory”).) Plaintiffs represented that
the discovery they sought was “critical to establishing” their damages theory and that “expert analysis
of the [] information sought” would allow them to “accurately model the profits attributable to the
challenged conduct.” (Dkt. 112 at 2-3.) And they also argued that the damages discovery sought was
“directly relevant to the issues of damages suffered by the class as well as the appropriate injunctive
relief . . . and [was] . . . necessary for Plaintiffs to fashion a theory of class-wide relief for their class
certification briefing.” (Dkt. 109 at 2, 4.)
32.

In light of these and other arguments, Plaintiffs received a 30-day extension of the

briefing schedule (Dkt. 117) and successfully compelled Facebook to produce extremely broad
discovery (Dkt. 130, 136.).
33.

In his expert report, however, Mr. Torres cited only 7 of the thousands of documents

produced by Facebook during the course of this litigation. (Dkt. 138-4, Ex. 33.) He also asserted in
his report that he needed other information from Facebook: “with additional information, including
production from Facebook, and inputs, these conclusions [in the Report] could be refined.”
(Dkt. 138-4, Ex. 33, ¶ 11 n.12.) In the final paragraph of his report, Mr. Torres explained, “With
quantitative data on the number of affected ‘Like’ counts, and identification of the affected URLs, it
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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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prepare their motion for class certification” was “prejudice[ed]” by Facebook’s alleged “delay[s]

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providing relevant discovery in this matter.” (Dkt. 138-3, ¶ 2.) More specifically, he claims that

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Facebook “delayed production of its source code by over five months . . . and [] failed to produce a

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significant number of documents responsive to Plaintiffs’ document requests” in a timely manner.

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(Id.)

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38.

Mr. Rudolph does not explain that this Court already was presented with these

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arguments on two separate occasions. After considering Facebook’s Opposition to Plaintiffs’ Motion

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to Enlarge Time and Extend Deadlines (Dkt. 114) and the supporting Declaration of Joshua Jessen

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(Dkt. 114-1), which rebutted similar assertions from Plaintiffs’ counsel, this Court ruled that the “90-

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day extension sought by plaintiffs would unnecessarily delay the case,” and instead ordered a 30-day

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extension. (Dkt. 117; see also Dkt. 113-1 at 13.)

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39.

Several weeks later, Plaintiffs filed a Renewed Motion to Continue, attempting to

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revisit the issue and arguing that Facebook “delayed [] providing relevant discovery, including by

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failing to produce a significant proportion of relevant and responsive documents until October 13,

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and October 28.” (Dkt. 134-1.) Once again, Facebook responded to Plaintiffs’ false assertions and

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corrected the record. (Dkt. 135, 135-1.) This Court denied Plaintiffs’ motion. (Dkt. 136.)

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40.

Mr. Rudolph’s most recent declaration (Dkt. 138-3) again argues that Facebook

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“delayed” production of its source code, “delayed” producing a significant portion of documents until

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October 13-28, 2015, and “delayed” producing additional documents until November 3-7, 2015.

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(Dkt. 138-3, ¶¶ 2–5.) Facebook already refuted the first two assertions were before the Court. (See

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Dkt. 114-1 ¶¶ 8–36; 135-1 ¶¶ 2–10.) On Mr. Rudolph’s last point, he fails to mention that

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Facebook’s November productions were in response to Plaintiffs’ Motion to Compel (Dkt. 112),

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Magistrate Judge James’ Order on October 14, 2015 (Dkt. 130), and this Court’s Order on

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November 3, 2015. (Dkt. 136.) In other words, the productions were the result of Plaintiffs’ motions

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to compel. Facebook produced all responsive documents it could locate after a reasonable search in a

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timely manner. Although Mr. Rudolph is correct to point out that the November 7 productions were

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significant in volume, this was through no fault of Facebook—it had repeatedly warned Plaintiffs that

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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their requests were extremely overbroad and would yield many irrelevant documents, and Facebook

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undertook extensive efforts to try to reach a reasonable compromise. (Dkt. 131-1.) For example,

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Facebook offered to provide Plaintiffs with representative documents for certain of Plaintiffs’

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requests, but Plaintiffs rejected all offers for compromise and continued to litigate these issues.

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(Dkt. 131-1, Ex. 1.)

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Contrary to Mr. Rudolph’s declaration, Facebook’s production was substantially

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complete as of September 30, 2015, with respect to the documents Facebook had agreed to produce at

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that point. Productions after this date were primarily in response to Plaintiffs’ Motion to Compel

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(Dkt. 112, 113, 122), which were not even decided until after September 30. (See Dkt. 130, 136.)

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IV.

Authentication Of Remaining Exhibits
42.

Attached as Exhibit EE is a true and correct copy of excerpts of the deposition

transcript of Dr. Jennifer Golbeck (dated December 16, 2015).
43.

Attached as Exhibit FF is a true and correct copy of excerpts of the deposition

transcript of Elizabeth Hartner (dated August 7, 2015).
44.

Attached as Exhibit GG is a true and correct copy of excerpts of the deposition

transcript of John Jay Orsi (dated August 10, 2015).
45.

Attached as Exhibit HH is a true and correct copy of excerpts of the deposition

transcript of Jeffrey Woodmansee (dated August 11, 2015).
46.

Attached as Exhibit II is a true and correct copy of excerpts of the deposition

transcript of Ray He (dated October 28, 2015).
47.

Attached as Exhibit JJ is a true and correct copy of excerpts of the deposition

transcript of Michael Adkins (dated October 28, 2015).
48.

Attached as Exhibit KK is a true and correct copy of a document that begins with

Bates number FB000006429, which Facebook produced during this litigation.

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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49.

Attached as Exhibits LL are true and correct copies of certain Google Analytics data

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that begins with Bates numbers FB000009906 and FB000009914, respectively, and which Facebook

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produced to Plaintiffs during discovery.

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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 Los

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Angeles, California, on January 15, 2016.

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/s/ Christopher Chorba
Christopher Chorba

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DECLARATION OF CHRISTOPHER CHORBA IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH