Campbell et al v. Facebook Inc.

Filing 157

EXHIBITS re 149 Opposition/Response to Motion,,,,, filed byFacebook Inc.. *** ATTACHMENTS 1, 13 LOCKED AT FILER'S REQUEST. SEE DOCUMENT 162 . *** (Attachments: # 1 Appendix of Evidence (Part 1 of 13) (Redacted), # 2 Appendix of Evidence (Part 2 of 13) (Redacted), # 3 Appendix of Evidence (Part 3 of 13) (Redacted), # 4 Appendix of Evidence (Part 4 of 13) (Redacted), # 5 Appendix of Evidence (Part 5 of 13) (Redacted), # 6 Appendix of Evidence (Part 6 of 13) (Redacted), # 7 Appendix of Evidence (Part 7 of 13) (Redacted), # 8 Appendix of Evidence (Part 8 of 13) (Redacted), # 9 Appendix of Evidence (Part 9 of 13) (Redacted), # 10 Appendix of Evidence (Part 10 of 13) (Redacted), # 11 Appendix of Evidence (Part 11 of 13) (Redacted), # 12 Appendix of Evidence (Part 12 of 13) (Redacted), # 13 Appendix of Evidence (Part 13 of 13) (Redacted))(Related document(s) 149 ) (Chorba, Christopher) (Filed on 1/16/2016) Modified on 1/22/2016 (ewn, COURT STAFF). Modified on 1/22/2016 (vlkS, COURT STAFF).

APP. 372

APP. 373

APP. 374

APP. 375

APP. 376

APP. 377

App. 378-445
Filed Under Seal

APP. 446

App. 447-499
Filed Under Seal

APP. 500

App. 501-556
Filed Under Seal

APP. 557

App. 558-688
Filed Under Seal

APP. 689

App. 690-710
Filed Under Seal

APP. 711

App. 712-728
Filed Under Seal

APP. 729

Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
t 415.956.1000
f 415.956.1008

April 10, 2015

VIA E-MAIL
Joshua Jessen, Esq.
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, California 94304
Christopher Chorba, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
RE:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH

Dear Josh:
I write in response to your April 7, 2015 letter regarding Plaintiffs’ interrogatory
responses.

Plaintiffs’ Responses to Interrogatory No. 3
As is evident from the responses themselves, Plaintiffs devoted significant time and
effort to providing detailed responses to Facebook’s Interrogatory No. 3. Indeed,
Mr. Campbell’s response contained
detailed entries listing the sender, recipient, date
and time, and URL associated with each Facebook message.
While Facebook’s demands for even more detailed information are burdensome and
harassing, in the interest of compromise Plaintiffs will provide more detailed information for the
senders and/or recipients of the relevant Facebook messages. While Plaintiffs will make every
effort to provide this information expeditiously, given the work-intensive nature of the
responses Facebook seeks and the numbers of senders and recipients involved, Plaintiffs cannot
commit to providing this information by a date certain of April 14.

Plaintiffs’ Responses to Interrogatory No. 5
Plaintiffs maintain their general and specific objections to this Interrogatory.
Additionally, Facebook’s demand for “all facts” is vague, overly broad, inherently burdensome,

San Francisco

New York

Nashville

APP. 730

www.lieffcabraser.com

Joshua Jessen, Esq.
Christopher Chorba, Esq.
April 10, 2015
Page 2
seeks irrelevant information, and is in principle unanswerable. See Haggarty v. Wells Fargo
Bank, N.A., No. 10-2416 CRB JSC, 2012 U.S. Dist. LEXIS 133375, at *2 (N.D. Cal. Sept. 18, 2012)
(“While contention interrogatories are permitted, they ‘are often overly broad and unduly
burdensome when they require a party to state ‘every fact' or ‘all facts' supporting identified
allegations or defenses.’”) (quoting Mancini v. Ins. Corp. of New York, No. 07-1750 L NLS,
2009 U.S. Dist. LEXIS 51321, at *9 (S.D. Cal. June 18, 2009)).
Subject to and without waiving these objections, Plaintiffs supplement their responses to
Facebook’s Interrogatory No. 5 as follows:
1.

2.

3.

Plaintiffs’ Responses to Facebook’s Contention Interrogatories (Interrogatory Nos. 6 & 7;
Plaintiff Campbell’s Responses to Interrogatory Nos. 9, 10, 11, 12 and 13; Plaintiff
Shadpour’s Responses to Interrogatory Nos. 9, 10, and 11)
We disagree with Facebook’s assertion that it is entitled to more detailed responses to its
contention interrogatories at this stage in the case, before any substantive discovery has taken
place. Given that Facebook has yet to produce a single non-public document or a single line of
source code, discovery in this case has only just begun and is nowhere near substantial, let alone
substantially complete. We agree that it is appropriate for the parties to meet and confer
regarding Plaintiffs’ responses to Facebook’s contention interrogatories. Please provide us times
during which you are available to meet and confer.

APP. 731

Joshua Jessen, Esq.
Christopher Chorba, Esq.
April 10, 2015
Page 3
Sincerely,

David T. Rudolph
DTR/wp
1225373.1

APP. 732

APP. 733

App. 734-914
Filed Under Seal

APP. 915

App. 916-970
Filed Under Seal

APP. 971

App. 972-973
Filed Under Seal

APP. 974

App. 975-977
Filed Under Seal

APP. 978

Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
t 415.956.1000
f 415.956.1008

July 24, 2015

VIA E-MAIL
Joshua Jessen, Esq.
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, California 94304
[e-mail]
RE:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH

Dear Josh:
I write regarding Plaintiffs’ Interrogatory No. 8 and Request for Production No 41.
As an initial matter, to the extent Facebook objects to the terms used in Interrogatory
No. 8, these are Facebook’s employees’ own terms used to describe Facebook’s internal data
systems in a presentation at a public symposium. See Bronson, et al, TAO: Facebook’s
Distributed Data Store for the Social Graph, USENIX ATC'13 Proceedings of the 2013 USENIX
conference on Annual Technical Conference, § 3.1 (June, 2013)1 (the “Bronson Article”). As
such, at this stage in the case, it is Facebook, not Plaintiffs, that is in the best in position to
define and understand these terms.
For reference, Interrogatory No. 8. requests that Facebook:
Identify all facts relating to the Processing of each Private Message
sent or received by Plaintiffs containing a URL2, including, for
each Private Message:
(A)
all Objects that were created during the Processing of the
Private Message, including the (id) and the Object Type for each

Av ailable at https://research.facebook.com/publications/161988287 341248/tao-facebook-s-distributeddata-store-for-the-social-graph/.
2 Each such Priv ate Message has been identified by each Plaintiff in Ex hibit 1 to his respective Objections
and Responses to Defendant’s First Set of Interrogatories.
1

S an Franci sco

New Y ork

Nashvi l l e

APP. 979

www.l i effcabraser.com

Object, as well as any Key -> Value Pair(s) contained in each
Object;
(B)
all Objects that were created specifically when the
embedded URL was shared, including the (id) and the Object Type
for each Object, as well as any Key -> Value Pair(s) contained in
each Object;
(C)
all Associations related to each Private Message, identified
by the Source Object, Association Type, and Destination Object, as
well as any Key -> Value Pair(s) contained in each Association;
(D)
the database names and table names in which each
Association and Object is stored;
(E)
each application or feature in Facebook that uses the
Objects or Associations created for each Private Message; and
(F)
how each Object associated with the Private Message was
used by Facebook.
The terms “id,” “Objects,” “Object Type,” “Source Object,” “Destination Object,”
“Association,” “Association Type,” and “Key -> Value Pair” are all used in the Bronson Article in
the context of describing Facebook’s TAO data store. As described at page 50 of the Bronson
Article:
TAO objects are typed nodes, and TAO associations are typed
directed edges between objects. Objects are identified by a 64-bit
integer (id) that is unique across all objects, regardless of object
type (otype). Associations are identified by the source object (id1),
association type (atype) and destination object (id2). At most one
association of a given type can exist between any two objects. Both
objects and associations may contain data as key value pairs. A
per-type schema lists the possible keys, the value type, and a
default value. Each association has a 32-bit time field, which plays
a central role in queries.
Objects and associations are further described in the Bronson Article as follows:
Object: (id)

(otype, (key value) )

Assoc.: (id1, atype, id2)

(time, (key value) )

APP. 980

Additionally, Facebook’s interrogatory responses discuss the creation of “share objects”
which are created when a URL is embedded in a Private Message. See, e.g., Facebook’s Response
to Plaintiffs’ Interrogatory No. 2.
Consistent with and pursuant to these descriptions, Plaintiffs seek identification and
data production of each of the Objects and Associations created when Facebook processed
Plaintiffs’ Private Messages containing a URL. With respect to a written interrogatory response,
Plaintiffs request a list of all the Objects and Associations created during the process of sending
these Private Messages. With respect to data production—which is equally important—Plaintiffs
request that this data be produced in a standard data format, preferably JSON, though XML,
CSV, or other common standard formats would be acceptable if production in JSON is not
possible.
For each Object, in addition to its identifier, Plaintiffs request identification and
production of the Object’s attributes. For example, for Facebook individual users, this
information would include the user’s first and last name, gender, age range, etc. For Facebook
pages, this could include the title and id in the relevant URL. For external URLs, it would
include relevant Open Graph data, like page title and description. Generally, for each Object,
Plaintiffs request enough information about it that Plaintiffs can determine the identity of that
Object and how it might be used by applications within Facebook.
As we discussed, in the interest of compromise, Plaintiffs are amenable to initially
limiting the production of this information to a subset of the total messages at issue, though
Plaintiffs reserve the right to seek this data for further messages. Plaintiffs request this
information for the following messages identified in the table attached as Exhibit 1 to
Mr. Hurley’s Response to Facebook’s First Set of Interrogatories:
To

From

Date

URL

1

2
3

t

4
5

6

APP. 981

To

From

Date

URL

1 1 :54pm PDT
7

10

Plaintiffs additionally request this information for the following messages identified in
the table attached as Exhibit 1 to Mr. Campbell’s Response to Facebook’s First Set of
Interrogatories:
To

From

Date

68
89
93

99

113

115

1 23

200

APP. 982

URL

To

From

Date

URL

41 0

654

482

e

Please let us know when Facebook will produce this information and data. As we
discussed during the July 9 in-person meet and confer, if Facebook does not agree to produce
this information and data, Plaintiffs will seek relief from the Court. We request a written
response and data production consistent with the above by no later than August 3, 2015.
Sincerely,

DTR/wp

David T. Rudolph

APP. 983

APP. 984

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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]

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Attorneys for Defendant
FACEBOOK, INC.

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

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PUTATIVE CLASS ACTION
Plaintiffs,

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21
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Case No. C 13-05996 PJH (MEJ)

MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,

DEFENDANT FACEBOOK, INC.’S
RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS
FOR ADMISSION

v.
FACEBOOK, INC.,
Defendant.

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25
26
27
28
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
Case No. C 13-05996 PJH (MEJ)

APP. 985

1

Defendant Facebook, Inc. (“Defendant” or “Facebook”), by and through its attorneys, and

2

pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S.

3

District Court for the Northern District of California, the Court orders in this action, and the parties’

4

agreements and conferences among counsel, provides the following responses and objections to

5

Plaintiffs’ First Set of Requests for Admission (each, a “Request,” collectively the “Requests”).

6

OBJECTIONS TO DEFINITIONS

7

1.

Facebook objects to Plaintiffs’ definition and use of the terms “You” or “Your” as

8

vague, ambiguous, overly broad, and unduly burdensome to the extent the terms are meant to include

9

“directors, officers, employees, partners, members, representatives, agents (including attorneys,

10

accountants, consultants, investment advisors or bankers), and any other person purporting to act on

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[Facebook, Inc.’s] behalf. . . . parents, subsidiaries, affiliates, predecessor entities, successor entities,

12

divisions, departments, groups, acquired entities and/or related entities or any other entity acting or

13

purporting to act on its behalf” over which Facebook exercises no control, and to the extent that

14

Plaintiffs purport to use these terms to impose obligations that go beyond the requirements of the

15

Federal and Local Rules.

16

OBJECTION TO PURPORTED “RELEVANT TIME PERIOD”

17

Facebook objects to Plaintiffs’ proposed “Relevant Time Period” (September 26, 2006

18

through the present) because it substantially exceeds the proposed class period identified in Plaintiffs’

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Consolidated Amended Complaint, does not reflect the time period that is relevant to Plaintiffs’

20

claims in this action, and renders the Requests overly broad, unduly burdensome, and irrelevant.

21

Unless otherwise specified, and pursuant to the agreement of the parties, Facebook’s Responses to

22

these Requests will be limited to information generated between April 1, 2010 and December 30,

23

2013.

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25
26
27

SPECIFIC RESPONSES AND OBJECTIONS TO REQUESTS FOR ADMISSIONS
REQUEST FOR ADMISSION NO. 1:
Admit that You have never had “a dedicated team of privacy professionals,” as that term
appears in Your 2012 Form 10-K and Your 2013 Form 10-K.

28
1
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
Case No. C 13-05996 PJH (MEJ)

APP. 986

1
2

RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Facebook restates and incorporates its Objections to Definitions and its Objection to the

3

Purported “Relevant Time Period” as though fully set forth in this Response. Subject to and without

4

waiving the foregoing objections, Facebook denies this Request.

5
6
7

DATED: June 29, 2015

GIBSON, DUNN & CRUTCHER LLP
By:

/s/
Joshua A. Jessen

8
9

Attorney for Defendant FACEBOOK, INC.

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27
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
Case No. C 13-05996 PJH (MEJ)

APP. 987

1
2
3
4
5
6
7
8
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PROOF OF SERVICE
I, Ashley M. Rogers, declare as follows:
I am employed in the County of Santa Clara, State of California, I am over the age of eighteen
years and am not a party to this action; my business address is 1881 Page Mill Road, Palo Alto, CA
94304-1211, in said County and State. On June 29, 2015, I served the following document(s):
DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
on the parties stated below, by the following means of service:
David F. Slade
[e-mail]
James Allen Carney
[e-mail]
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
[e-mail]

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Jeremy A. Lieberman
Pomerantz Grossman Hufford Dahlstrom & Gross LLP
[e-mail]
Melissa Ann Gardner
[e-mail]
Nicholas Diamand
[e-mail]
Rachel Geman
[e-mail]
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
[e-mail]

20
21
22
23
24

Jon A Tostrud
Tostrud Law Group, P.C.
[e-mail]
Lionel Z. Glancy
Glancy Binkow & Goldberg LLP
[e-mail]

25
26
27
28
3
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
Case No. C 13-05996 PJH (MEJ)

APP. 988

1

3

BY ELECTRONIC SERVICE: On the above-mentioned date, based on a court order or
an agreement of the parties to accept service by electronic transmission, I caused the
documents to be sent to the persons at the electronic notification addresses as shown
above.

4

I am employed in the office of Joshua A. Jessen and am a member of the bar of this court.

5

I declare under penalty of perjury that the foregoing is true and correct.

2

6
Executed on June 29, 2015.
7
8

/s/
Ashley M. Rogers

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION
Case No. C 13-05996 PJH (MEJ)

APP. 989

APP. 990

APP. 991

APP. 992

APP. 993

Joshua A. Jessen
Direct: +1 949.451.4114
Fax: [phone]
[e-mail]
Client: 30993-00028

May 13, 2015
VIA ELECTRONIC MAIL
Hank Bates, Esq.
Carney Bates & Pulliam, PLLC
2800 Cantrell Road, Suite 510
Little Rock, AR 72202
Re:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH

Dear Hank:
Thank you for letter of May 1, 2015.
In response to the questions raised in the first paragraph of your letter, we have identified the
following six custodians and are in the process of collecting and reviewing their documents
based on the search terms set forth in the Appendix attached to this letter: Michael Adkins;
Alex Himel; Ray He; Matt Jones; Jordan Blackthorne; and Peng Fan. Additionally, we are in
the process of identifying additional custodians based on a review of relevant documents in
the possession of the above-named custodians.
Please let us know if you have any objection to the search terms we are using or any
questions about the identified custodians.
With respect to the issues raised in the second paragraph of your letter, we are gathering all
documents we have agreed to produce and will provide them as they are ready for
production. We anticipate another production on June 1, which will include many of these
documents (in addition to the documents we will be producing pursuant to Magistrate Judge
James’ April 13, 2015 Order). Facebook maintains its objections to Plaintiffs’ Request for
Production Nos. 27, 28, and 30 (even as narrowed by your letter of April 7, 2015). Please
also note that Facebook has not been contacted by regulators in the United States regarding
the practices at issue in this case, including message “scanning,” so to the extent your
requests seek such documents, they do not exist. Also, as I noted in my letter of April 10,
2015, with respect to Request No. 29, there is no specific list of the “dedicated team of
privacy professionals” referenced in the Request.
Finally, with respect to the “Relevant Time Period” proposed in your letter dated April 7,
2015 (April 1, 2010 to December 30, 2013), in the interests of compromise we are amenable
to agreeing to an end date of December 30, 2013—notwithstanding the fact that Plaintiffs

APP. 994

Hank Bates, Esq.
May 13, 2015
Page 2

allege in their Complaint that “Facebook ceased [its] [allegedly] illegal practice at some
point after it was exposed in October 2012.” However, we continue to believe that the start
date should be the start of the proposed class period (December 30, 2011), although we are
amenable to producing documents before that date sufficient to identify when the challenged
practice began. Please let us know if this agreeable.
Let me know if you would like to arrange a call to discuss these issues further.
Also, if there are additional custodians from whom you plan to collect documents (in
addition to the named Plaintiffs), please identify them. As noted in our previous requests,
please also let us know when we may expect documents from Mr. Shadpour.
Sincerely,

Joshua A. Jessen

APP. 995

Appendix
List of Search Terms

(“like button count” or “like count” or “Like plugin” or “like plug-in”) w/25
(message! or messenger or titan or chat!)
(“share object” or “share_object”) w/25 (message! or messenger or titan or
chat!)
(“share button” or “share_button”) w/25 (message! or messenger or titan or
chat!)
(Sharecount or share_count or “share count”) w/25 (message! or messenger or
titan or chat!)
(Postcount or Post_count) w/25 (message! or messenger or titan or chat!)
(“social plugin” or “social plug-in”) w/25 (message! or messenger or titan or
chat!)
“share/like counter” w/25 (message! or messenger or titan or chat!)
(url or urls) and share and (message! or messenger or titan or chat!)
(url or urls) and preview and (message! or messenger or titan or chat!)
(message! or messenger or titan) w/25 (scan!)
(message! or messenger or titan ) w/25 (process!)
(message! or messenger or titan) and (spam! or filter or “junk” or “unsolicited”)
(Bug or error) w/25 (“like count” or “like button count” or sharecount or “share
count” or “share stats”) and (message! or messenger or titan)
“Graph API” w/25 (“like count” or “like button count” or sharecount or “share
count” or “share stats”) and (message! or messenger or titan)
(message! or messenger or titan) w/25 (advertising or advertiser! or ads)
(message! or messenger or titan) w/25 target!
“Site integrity” w/25 (architecture or flow or diagram or chart or graph or tree)
and (message! or messenger or titan)
(message! or messenger or titan) w/25 (architecture or flow or diagram or chart
or graph or tree)
(sharescrapper or “share scrapper” or share_scrapper or share-scrapper) w/25
(message! or messenger or titan or chat!)
Kashmirhill and yahootix
forbes and (messages or messenger or “like button” or “like count” or “share
count”)
wsj and (messages or messenger or "like button" or "like count" or "share
count")
“wall street journal” and (messages or messenger or “like button” or “like
count” or “share count”)
(“Digital Trends” or “digitaltrends.com”) and “Bug” and “Facebook” and
“Like”

APP. 996

(“Hacker News” or “news.ycombinator.com”) and “Facebook Graph API”
(“Hacker News” or “news.ycombinator.com”) and “Facebook” and “likes”

2

APP. 997

APP. 998

Joshua A. Jessen
Direct: +1 949.451.4114
Fax: [phone]
[e-mail]
Client: 30993-00028

June 12, 2015
VIA ELECTRONIC MAIL
David Rudolph, Esq.
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Re:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH

Dear David:
Thank you for your letter of June 5, 2015.
First, as I noted in my May 13, 2015 letter to Hank Bates, in response to Plaintiffs’ offer to
compromise, Facebook will produce documents through an end date of December 30, 2013.
Second, with respect to a production start date, while the Himel Declaration does discuss
certain events dating back to September 2009 to provide context for the practice that
Plaintiffs challenge, the exhibits to the Declaration show that the challenged practice did not
commence until August 2010. However, in the interests of compromise, we are amenable to
a production start date of April 2010, as proposed by Hank in his letter of April 7, 2015. If
there are specific requests or custodians for whom Plaintiffs believe an earlier start date is
appropriate, we are willing to discuss that with you. But an en masse collection and
production of documents going back to 2009 is overbroad, unduly burdensome, and
inappropriate, and also would be inconsistent with the proportionality requirement in Rule
26(b)(2)(C) and (g)(1)(B), the Stipulated Order re Discovery of Electronically Stored
Information in this case (Dkt. 74), as well as the District Court’s ESI Guideline 1.03.
Finally, we are still in the process of determining what legal obligations (including
notification obligations) may exist with respect to potentially producing any communications
///
///
///

APP. 999

David Rudolph, Esq.
June 12, 2015
Page 2

exchanged between Facebook and the Irish Data Protection Commissioner regarding
Facebook’s Messages Product. I expect to have a better idea of those obligations next week
and will revert to you at that time.
Sincerely,

Joshua A. Jessen

APP. 1000

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APP. 1024

APP. 1025

APP. 1026

APP. 1027

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

________________________________

5

MATTHEW CAMPBELL, MICHAEL

)

6

HURLEY, and DAVID SHADPOUR, on

)

7

behalf of themselves and all

)

8

others similarly situated,

)

9
10
11

Plaintiffs,
vs.

13
14

) Case No.

FACEBOOK, INC.,

12

)

) C 13-05996 PJH

Defendant.

) Volume I

________________________________)
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

15
16

Videotaped Deposition of FERNANDO TORRES,

17

taken on behalf of Defendant, at the offices of

18

Lieff, Cabraser, Heimann & Bernstein, 275 Battery

19

Street, San Francisco, California, beginning at

20

8:10 a.m. and ending at 4:42 p.m., on Friday,

21

December 18, 2015, before Chris Te Selle, CSR

22

No. 10836.

23
24

Job No. 2194240

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1

economic methods are able to be applied to determine

2

the benefit that Facebook has derived, and, from the

3

alleged actions; and, and that would be, basically,

4

it.

5

Q.

6
7
8

And you said, damages can be measured.

08:36:01

08:36:22

Have you measured damages in this case?
A.

I haven't applied the methodology to the

ideal information, because it has not been produced.

9

Q.

10

information?

11

A.

Well, the data from Facebook.

12

Q.

Is there specific --

13

A.

That --

14

Q.

I'm sorry.

15

A.

That relates exactly to the alleged

16
17
18
19

What do you mean by, the ideal
08:36:46

Go ahead.
08:36:56

actions.
Q.

And what are the alleged actions, as you

understand them?
A.

Well, I would summarize it in the

20

interception of private messages, and the data that

21

I would need is mainly the number of those messages

22

that were intercepted that contained URLs, and the

23

total number of messages for the same time periods

24

to assess the relative importance of those numbers.

25

Q.

When you say, the total number of messages

08:37:07

08:37:40
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that contained URLs, and the total number of

2

messages for the same periods, same time periods,

3

can you explain the comparison.

4

understand the two variables there.

5

A.

08:37:42

I'm not sure I

Well, one of the measures that I would be

6

looking for would be the percentage of messages that

7

contain those URLs and that were intercepted during

8

08:37:53

the class period.

9
10

Q.

And what is your understanding of the

proposed class in this case?

11

A.

Of the definition of the class?

12

Q.

Yes, sir.

13

MR. DIAMAND:

08:38:17

14
15

Calls for a legal conclusion.

You can answer, if you can.
THE WITNESS:

Well, again, that would be in,

16

the actual definition of the class is either on the

17

motions or on my report.

18

you that it would be those members of Facebook that

19

sent private messages and had their private messages

20

intercepted and included URLs during the class

21

period.

22

08:38:29

BY MR. CHORBA:

From memory, I can tell

23

Q.

Do you know what a URL attachment is?

24

A.

A URL attachment?

25

Q.

Yes.

08:38:53

08:39:08
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1
2
3

A.

I'm not sure I understand the use of that

08:39:15

particular combination of terms.
Q.

Earlier, you mentioned data from Facebook,

4

and you said that the ideal information would be the

5

number of messages containing URLs; is that correct?

6
7

A.

Not exactly.

08:39:30

The ideal information

includes that information that you mentioned.

8

Q.

What else?

9

A.

There's -- well, for example, exactly the

10

advertising revenue from U.S.-based members, because

11

the only publicly-available information refers to

12

U.S. and Canada.

13

Q.

08:39:54

And would that be advertising revenue

14

attributed to the alleged intercepted messages that

15

contained URLs?

08:40:14

16

A.

No.

17

Q.

Were you asked to develop a methodology to

18
19

It's advertising revenue in general.

identify putative class members in this case?
MR. DIAMAND:

Objection.

To the extent that

20

this addresses communications between your counsel

21

and you, caution you not to answer.

22

that without doing that, go ahead.

23

THE WITNESS:

08:40:46

If you can do

So, as, as an economic expert, I,

24

that falls outside of my scope.

25

BY MR. CHORBA:

08:41:04
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opinion in those terms.

2

can't say if it should.

3

BY MR. CHORBA:

4
5

Q.

I can't, as an economist, I

So you are not offering an opinion on as

to whether or not a class should be certified.

6

08:43:04

A.

08:43:15

The matter of should is a legal question.

7

What I'm doing in the report is, assuming it is

8

certified, then it makes sense to analyze damages.

9

Q.

Okay.

So, your report is triggered and

10

your opinion is triggered only if a class is

11

certified.

12

MR. DIAMAND:

Objection.

13

THE WITNESS:

08:43:32

Again, that would be a legal

14

opinion.

15

BY MR. CHORBA:

16
17

Q.

We will do this the longer

way.

18
19

All right.

08:43:44

Are you offering an opinion on any of the
Rule 23 elements, yes or no?

20

A.

I don't even know what the Rule 23 is.

21

Q.

All right, let's go through them.

22

08:43:52

Are you offering an opinion on

23

commonality?

24

A.

25

expert.

I'm not a legal expert; I'm an economics
That's not part of my scope.

08:44:00
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A.

No.

2

Q.

Ascertainability?

3

A.

No.

4

Q.

Superiority?

5

A.

No.

6

Q.

Manageability?

7

A.

No.

8

Q.

If no class is certified, will you have

9
10
11
12

08:44:41

08:44:45

any expert opinions in this case?
MR. DIAMAND:

Objection.

Calls for a legal

08:44:54

conclusion.
THE WITNESS:

I can have the opinions.

13

know if they'll be useful.

14

I don't

BY MR. CHORBA:

15
16
17

Q.

Have you been asked to give opinions if no

class is certified in this case?
MR. DIAMAND:

Objection.

08:45:01

Yes or no.

To the extent that

18

this, again, goes into what I didn't, or with

19

counsel, didn't ask you to do, I'd caution you not

20

to answer.

08:45:13

21

THE WITNESS:

22

if I was asked or not.

23

BY MR. CHORBA:

24
25

Q.

Right.

So, I can't tell you if,

Do you know the answer whether or not your

opinions will be used if a class is certified?

08:45:27
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way in which there would not have been a benefit to

2

Facebook.

3

Q.

08:57:38

And what, based on your understanding of

4

the allegations in the complaint, and your

5

assumption that those allegations are true, what was

6

the benefit to Facebook, as you understand it?

7

A.

08:57:48

Well, the accumulation of the information

8

gleaned from the messages, basically, the edges

9

between members and the marketers and entities

10

identified by the URLs, is accessible through, as

11

part of the social graph, it's accessible to

12

Facebook in developing the targeted advertising

13

services that, that generate this revenue.

14

Q.

Thank you.

08:58:12

That's helpful.

15

Let's assume that the information is

16

accessible to Facebook, as the provider of the

17

service, so, information from messages is

18

accessible.

19

A.

Uh-huh.

20

Q.

I'm asking you this as a hypothetical.

08:58:35

21

It's available, but it's not used for targeted

22

08:58:44

advertising.

23

Would that impact your opinions at all?

24

MR. DIAMAND:

Objection.

Hypothetical.

25

THE WITNESS:

That would be a technical

08:58:58
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Q.

Does your opinion that there were, that

2

there's a methodology to determine damages hinge on

3

whether or not the information resulted in a revenue

4

09:01:27

generating activity for Facebook?

5

MR. DIAMAND:

Objection.

09:01:37

6

THE WITNESS:

So, my methodology determines the

7

benefit to Facebook from a specific action, and

8

that's, that's what it refers to, the alleged

9

action.

10
11

BY MR. CHORBA:
Q.

09:02:00

Why doesn't it examine, your methodology

12

examine, instead of examining benefit to Facebook,

13

why doesn't it examine detriment to the putative

14

class?

15
16
17

MR. DIAMAND:

Objection.

Calls for a legal

09:02:12

conclusion.
THE WITNESS:

So, my report and methodology

18

that I developed was asked to analyze the benefits

19

to Facebook, so that's, so, it doesn't calculate the

20

detriment to the class members, or the potential

21

class members, because it wasn't meant to.

22

BY MR. CHORBA:

23
24
25

Q.

09:02:31

So, you have not developed a methodology

to calculate damages to putative class members.
MR. DIAMAND:

Objection.

09:02:49
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2
3

THE WITNESS:

That, that was not my task, no.

09:02:50

BY MR. CHORBA:
Q.

If you can turn to paragraph 7, I'm going

4

to bounce back a little bit, and I'll show you other

5

documents today, but let's keep this one handy.

6

This is Exhibit 1 for a reason.

7

paragraph 7, Mr. Torres, and it carries over from

8

pages 2 to 3, you state there in your introduction

9

assignment and summary of conclusions, under that

09:03:04

And, if you look at

10

heading, you say, the plaintiffs' consolidated

11

amended class action complaint, the CAC, alleges

12

that Facebook utilizes information surreptitiously

13

gathered from purportedly private correspondence

14

sent between Facebook users and uses that

15

information in a number of ways, including, and then

16

it goes on, A, B, C.

17

09:03:23

09:03:40

Did I read that correctly?

18

A.

Yes.

19

Q.

And you assumed, again, this is a place

20

where you assume the specific allegations in the

21

consolidated amended complaint were true; is that

22

correct?

23

A.

Yes.

24

Q.

09:03:50

If we go to A, so, if we flip to page 3,

25

and, again, this is one of the uses in the complaint

09:04:06
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report.

2

don't know what happens.

3

me.

4

BY MR. CHORBA:

5
6

Q.

If in the future no class is certified, I

09:52:15

The future is unknown to

You'd have to conduct a fresh analysis at

09:52:23

that point, is that what I'm hearing?

7

A.

8

MR. DIAMAND:

Objection.

9

THE WITNESS:

I don't know what I would do.

10

I don't know.

BY MR. CHORBA:

09:52:51

11

Q.

Have you ever used Facebook?

12

A.

Yes.

13

Q.

Are you currently a member of Facebook?

14

A.

Yes.

15

Q.

How long have you had a Facebook account?

16

A.

I opened my account around 2009.

17

Q.

And has it been active since then?

18

A.

Well, I checked yesterday, it was still

19
20
21

09:53:03

active, so it hadn't been cut off.
Q.

You never, you never intentionally closed

09:53:25

your account?

22

A.

No.

23

Q.

That was good.

24
25

Have you ever sent a Facebook message?
A.

I think I have.

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2

Q.

Do you recall whether or not you ever sent

09:53:48

a Facebook message with a URL in it?

3

A.

No, I don't think so.

4

Q.

So I assume, then, you never sent a

5

message with a URL attachment?

6

MR. DIAMAND:

Objection.

7

THE WITNESS:

No.

09:54:01

8
9
10
11
12
13

BY MR. CHORBA:
Q.

Do you remember if you sent more than one

Facebook message containing a URL?
A.

09:54:15

As I said, I haven't sent a message

containing a URL.
Q.

14
15

So, one precludes the other.

Oh, I'm sorry.

I misunderstood you.

Is it possible you did, and you just
forgot, or are you pretty confident you didn't?

16

A.

I'm pretty confident I didn't.

17

Q.

09:54:27

Approximately how many Facebook messages

18

in total have you sent in your life?

19

A.

I think it's in the order of two or three.

20

Q.

Have you ever received a Facebook message?

21

A.

Yes.

22

Q.

Do you recall approximately how many

23

09:54:45

you've received?

24

A.

One.

25

Q.

One.

Did that Facebook message contain a

09:54:57
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Which records are you referencing there?

2

A.

10:24:47

So, I would expect class membership to be

3

identifiable, based on Facebook's records as to what

4

messages were sent, what messages could have been

5

intercepted or not.

6

membership identification would belong.

7

Q.

That's where the class

10:25:03

And are you offering an opinion in this

8

case that class membership is identifiable and

9

ascertainable based upon Facebook's records?

10

MR. DIAMAND:

Objection.

11

THE WITNESS:

To the extent that's a technical

12

issue as to what records to look at to identify the

13

membership in the class, that's not, that's outside

14

of my scope.

15

BY MR. CHORBA:

10:25:19

16

Q.

10:25:33

So, are you assuming that class membership

17

is identifiable and ascertainable based upon

18

Facebook records, or are you opining that?

19

A.

I'm considering that that is something

20

that will happen when the class is certified, if it

21

is.

22

Q.

23

MR. DIAMAND:

Objection.

24

THE WITNESS:

10:25:46

I would expect that formal class

25

And so it would occur after certification?

membership would be determined once the definition

10:26:00
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advertising services to marketers.

10:31:52

2

Q.

What do you mean by, marketers?

3

A.

In this report, I mean by marketers the

4

same thing that Facebook defines as marketers, which

5

are their clients, the people responsible for

6

advertising, companies, entities, organizations, and

7

whether they are direct entities or agencies in the

8

advertising market.

9
10
11
12
13
14
15

Q.

Do you have any specific examples that you

can give?
A.

10:32:10

10:32:31
Well, other than an ad agency or a

specific company, like Coca Cola.
Q.

And why did you use this term, this

defined term, Marketers, with a capital M?
A.

Because it's not any marketer.

It's

16

advertisers in Facebook, so it's a shorthand

17

10:32:53

notation for that.

18
19

Q.

Would you include, it says here, third

party websites, parentheses, marketers.

20

Is there, are there other, I guess,

21

entities or individuals that fall under the term

22

10:33:10

marketers that aren't third party websites?

23

A.

The limitation is the other way around.

24

There are other third party websites that are not

25

marketers in the sense of Facebook.

10:33:26
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2
3
4

private messages.
Q.

10:43:45

And do you lay out these calculations

anywhere in your report?
A.

Well, in the body of the report, in

5

section 4, I lay out the methodology and the

6

beginnings of the calculations that can be done with

7

publicly-available information.

8

the calculations, because I haven't received the

9

precise data from Facebook.

10

Q.

11
12

10:43:57

I haven't finalized

And you said, in section 4 of your report.

10:44:23

Would that be both sections A and B, or is
it one specific section?

13

A.

I would say it's probably both.

14

Q.

And you said you haven't finalized the

15
16

calculations.

10:44:36

What do you mean?

You haven't actually

17

calculated the amount in the aggregate, or for a

18

specific person?

19

MR. DIAMAND:

Objection.

20

THE WITNESS:

Right.

Vague.

So, I have not calculated

21

a final number, and definitely not a final number

22

per person.

23

and I haven't made any estimates or assumptions, in

24

addition, to try to simulate or substitute for that

25

information.

10:44:47

The information has not been provided,

10:45:12
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BY MR. CHORBA:

2

Q.

10:45:19

Does your methodology account for

3

potential benefits to class members from the

4

challenged practices?

5

A.

No.

I mean, in calculating the benefits

6

to Facebook, I don't consider benefits to somebody

7

10:45:36

else.

8
9

Q.

And both methodologies in section 4 A and

4 B measure benefit to Facebook?

10

A.

Correct.

10:45:49

11

Q.

So at no point, well, let me ask you, have

12

you attempted to calculate detriment to the putative

13

class?

14

MR. DIAMAND:

Objection.

15

THE WITNESS:

As I said, that, that's not part

16

of my scope.

17

Facebook.

18

10:46:09

BY MR. CHORBA:

19
20

Q.

My scope is to analyze the benefits to

Have you been asked to prepare a rebuttal

opinion to any report prepared by Facebook?

21

A.

No.

22

Q.

10:46:29

Circling back, just in front of you,

23

paragraph 11 B, is your definition of marketers

24

limited to third party websites that have a like

25

button social plugin installed?

10:46:50
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in the disclosures.

2

10:59:54

Yahoo does a bad job about it, because

3

they really don't have enough information about the

4

person, so it's not well-targeted.

5

that there is litigation involving any of those two.

6

Q.

And -- okay.

I don't know
11:00:11

If Twitter were to engage

7

practices, in practices similar to those alleged in

8

this case, would you change your practices with

9

using Twitter?

10

A.

My personal view is that you do have to

11

read what the privacy policy is, and you have to

12

know to expect that if you are not paying for a

13

11:00:35

product, you are the product.

14

Q.

If we look, I'm going to flip back to the

15

report, paragraph 18.

It's a lengthy paragraph, but

16

I'd like to focus on the last two sentences, so it

17

carries over from pages 7 to 8.

18

you are there.

19

It's on line 18, on page 7.

20

advantage stems from the power of leveraging the

21

deep targeted knowledge available from its unique

22

access to an increasingly complete and computerized

23

social network, including by tracking users beyond

24

the Facebook.com website.

25

activities providing online social networking

11:01:13

Let me know when

I will just read it, to focus you.
Facebook's competitive
11:01:36

Consequently, the two
11:01:54
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Q.

But if the claims are not correct, would

2

you have any basis for stating that either Exhibit 4

3

or Exhibit 3 have any information gleaned from

4

11:36:47

messages on Facebook?

5

MR. DIAMAND:

Objection.

11:37:01

6

THE WITNESS:

Again, these documents are

7

marketing documents from Facebook.

This is designed

8

to sell the product and to actually develop the

9

product.

This is designed to market Facebook

10

advertising as a medium to other marketers who are

11

looking into online advertising.

12

What you are asking is about the technical

13

information that would allow somebody to make a

14

technical determination of whether that specific

15

information that is gleaned from the private

16

messages eventually makes its way to one or more

17

advertising campaigns.

18

11:37:16

BY MR. CHORBA:

19
20

Q.

11:37:32

And what kind of technical information

would you need to make that determination?

21

MR. DIAMAND:

Objection.

22

THE WITNESS:

11:37:42

I'm not looking for technical

23

data to do a technical analysis.

What I would need

24

is a technical expert to determine that, in fact, at

25

least in some way, the information gleaned from the

11:37:57
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messages is usable to Facebook.

2

BY MR. CHORBA:

3
4

Q.

11:38:02

You stated earlier that the technical

information has not been produced.

5

A.

To my knowledge.

11:38:10

6

Q.

Do you know whether it's been produced,

7

and you just haven't seen it, or it's your

8

understanding it hasn't been produced at all?

9

MR. DIAMAND:

Objection.

10

THE WITNESS:

My understanding is, it hasn't

11

been produced beyond maybe what pertains to the

12

named plaintiffs, but, information about the class,

13

I don't think it has been produced.

14

11:38:19

BY MR. CHORBA:

15
16

Q.

What about source code?

Are you aware if

11:38:33

source code has been produced in this case --

17

A.

I'm not aware.

18

Q.

-- more than 10 million lines of source

A.

I'm not aware of that, because it's not my

19
20
21
22

code?
11:38:40

task to analyze the source code.
Q.

So, do you have any factual basis to state

23

that either, that any of the targeted options in

24

Exhibit 3 or Exhibit 4 contain information gleaned

25

from Facebook messages?

11:38:58
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basis to state that objects and associations are

2

created from Facebook messages.

3

A.

12:53:33

Again, the factual basis would be

4

technical data, technical information that is not in

5

my scope to analyze.

6

if it's information that is made part of Facebook's

7

resources, it's information that is available to

8

use.

9

Q.

From an economic perspective,

12:53:45

And if Facebook does not create objects

10

and associations based on URLs in Facebook messages,

11

would that impact your damages methodology?

12

A.

12:54:04

Well, to the extent that that hypothetical

13

situation would indicate that there is no, or that a

14

particular course of action or cause of a litigation

15

might not be sustained, my report would not be

16

relevant to that particular hypothetical.

17

Q.

12:54:30

Particular hypothetical, again, if it were

18

not true, you are saying your report wouldn't come

19

in in that instance?

20
21
22

MR. DIAMAND:

Objection.

Calls for a legal

12:54:50

conclusion.
THE WITNESS:

Right.

So, in, under those

23

circumstances that are in your hypothetical, I don't

24

know, I can't know if my report would be either

25

appropriate, or used, or anything else.

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is, Facebook in integration is more effective than

2

it really is.

3
4
5

Q.

01:06:17

Why does it make it appear that the

integration is more effective than it is?
A.

Because the like count is increasing,

6

despite the fact that the person is not clicking on

7

01:06:31

the like button on the third party website.

8
9

Q.

And does that opinion depend on how much

the like counter is increasing, based on messages?

10

MR. DIAMAND:

Objection.

11

THE WITNESS:

Not necessarily.

12

01:06:46

BY MR. CHORBA:

13

Q.

Why not?

14

A.

Because it depends, it would depend on

15

exactly what the proportion of the enhancement is.

16

During some, at some point, according to some of the

17

experiments reported on The Wall Street Journal, the

18

like count was increasing twice, or, or, in a

19

two-to-one ratio, to including the URLs in the

20

messages.

21

01:06:55

01:07:20
So, if that happens to a website, a third

22

party website that has like counts organic like

23

counts of, in the order of one or two, then it's a

24

100 percent increase.

25

If it happens to Coca Cola, and they

01:07:34
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already have 500,000 likes on their third party

2

website, that is a miniscule less than a 1 percent,

3

so, they won't be as influenced or as impressed by

4

the increase.

5

Q.

6

And if you look -- thank you.

01:07:36

01:07:54

If you look at 34 B, it states, benefits

7

from artificially increasing the like count on third

8

party websites using Facebook's social plugins.

9
10
11

What did you mean by, artificially
increasing the like count on third party websites?
A.

01:08:10

Well, because the idea that the, or the

12

description of the counter next to the like button

13

on the third party website is that it represents the

14

number of times people have clicked on that button.

15

And it was being increased not because

16

people were doing that action of clicking there,

17

they were referencing the URL in a private message.

18

Q.

01:08:23

What if someone sent a URL in a Facebook

19

message, knowing and intending that the like count

20

would be increased?

21

an artificial increase of the like count?

22

A.

Would you consider that to be

01:08:43

Well, that could stand as a description of

23

what the experiments reported in The Wall Street

24

Journal article were, that they were noticing that,

25

and the artificial nature of it is that you are

01:09:02
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the like count.

01:16:16

2

A.

Uh-huh.

3

Q.

If somebody is paid to click on the like

4

button on a third party website, would you consider

5

that to be an artificial increase of the like count?

6

A.

01:16:23

In that situation, an artificial increase

7

is something that is not a click by somebody who's

8

interested in the brand.

9

Q.

How about if someone, think of another

10

example, someone is interested in clicking on that

11

brand, but not maybe in the way of developing an

12

affinity or support of that brand.

13

example of a contest.

14

contest.

15

haircut this week, and 100 people enter, only one

16

person gets the, gets the, and they enter by

17

01:16:40

clicking on the like button.

So, let's use an

A local hairdresser offers a

If you like my page, you get a free

18

A.

Uh-huh.

19

Q.

01:16:57

Would those be artificial increases in the

20

like count?

01:17:07

21

MR. DIAMAND:

Objection.

Hypothetical.

22

THE WITNESS:

In that hypothetical situation, I

23

think you would consider, or, economically, you are

24

still considering that it's artificial, that it's a

25

misuse of the original intent of the likes, of the

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like count.

2

01:17:23

I think that's what's behind Facebook changes

3

to just using like as the operating verb, and trying

4

to make it more nuanced, going forward.

5

BY MR. CHORBA:

6
7

Q.

9

What are you referring to there?

sorry, I lost you.

8

A.

01:17:37
I'm

When you said it's --

Well, lately, Facebook has hinted at

introducing other alternatives for people to express

10

their response or reaction to posts and things like

11

that.

12

if somebody posts a death or reports a death in the

13

family, that the summary way to show your, your

14

awareness of the message, or anything else, is to

15

click on like.

16

01:17:49

I mean, it's always been a curious thing that

Q.

01:18:14

I follow you, but, for now, we're just

17

dealing with this case, and it's the like, and I'm

18

trying to understand.

19

So, in that contest hypothetical, you

20

would view that as an artificial like, correct, from

21

an economics perspective?

22
23
24
25

A.

Within the context of that hypothetical,

Q.

01:18:23

And, just to be clear, if the web page had

yes.

a like button, but no counter next to it --

01:18:37
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Q.

Mr. Torres, the reporter's just handed you

2

a document that bears the title, we've marked it as

3

Exhibit 5, it bears the title Facebook Q2 2015

4

01:27:14

Results.

5

Can you please take a look at that.

6

A.

Yes.

7

Q.

And is this, have you seen this document

8

before?

9

A.

Yes.

10

Q.

Is this the document upon which you relied

01:27:23

11

for purposes of determining that $1.593 billion

12

figure?

13

A.

Yes.

14

Q.

01:27:31

Was there any other material you relied

15

upon?

01:27:41

16

A.

For that number, no.

17

Q.

Precise.

I appreciate it.

And, more

18

specifically, as stated in footnote 66, you took the

19

numbers from slide 9 of this Exhibit 5 --

20

A.

Uh-huh.

01:27:54

21

Q.

-- is that right?

22

A.

Yes.

23

Q.

If you can turn to slide 9.

Can you just

24

briefly walk me through how you came up with that

25

number.

01:28:03
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A.

So, the four numbers in the dark portion

2

of the columns of the bars, those are the revenue

3

01:28:05

numbers for the U.S. and Canada region.

4
5

Q.

So that's for Q3 2014 through Q2 2015,

those four columns; is that right?

01:28:28

6

A.

Yes.

7

Q.

So, the numbers, let's just read them off,

8

so we're clear:

1514, 1864, 1739, and 1967?

9

A.

Yes.

10

Q.

And, what, did you add those together?

11

A.

Yes, and then average them.

12

Q.

And how did you average them?

13

A.

Divide by four.

14

Q.

And that's how you came up with the

15

$1.593 billion figure?

16

A.

No.

01:28:41

01:28:53

Like it says there, I did another

17

adjustment to, in an attempt to exclude the data

18

from Canada, so I applied 89.96 percent to take into

19

account of the ratio of Canadian population to U.S.

20

population.

21

Q.

Thank you.

01:29:12
And what was the ratio that

22

you used there, what was the data?

23

It was Census

data?

24

A.

Yes.

25

Q.

Is it commonly accepted economic practice

01:29:25
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to rely on Census data to back out Canadian revenue

2

versus U.S. revenue?

3

A.

01:29:27

Well, in the absence of the right

4

information, because Facebook is not reporting just

5

the U.S. information, so, in the absence of that

6

information, which I believe was asked for, one way

7

to estimate it is to assume that the penetration

8

rate is the same in the U.S. and Canada, and that

9

also means that the ratio population is the same as

10
11

the ratio of users.
Q.

12
13
14

01:29:40

01:30:03

But you said that's one way.
Is that the best way, in your experience,

in lieu of the breakdown from -A.

That's a, that's a, I believe, a

15

reasonable approximation, because one of the

16

underlying reasons that companies oftentimes

17

conflate the U.S. and Canada is that the populations

18

are relatively similar for these purposes, so they

19

have the same penetration, they have the same

20

attitudes.

21

language, and --

For the most part, they share a

22

Q.
A.

-- it's a small percentage.

24

Q.

01:30:44

Have you relied on -- sorry.

23

01:30:21

I didn't mean to interrupt you, sir.

25

Have you relied on Census data before to

01:30:55
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make this type of breakdown in giving an expert

2

opinion or making a valuation?

3

A.

Yes.

4

Q.

01:30:57

And then you deducted expenses of

5

40.75 percent; is that correct?

6

A.

Yes.

7

Q.

01:31:08

Why did you deduct expenses of

8
9
10

40.75 percent?
A.

Because I want to determine profits, not

total revenue.

01:31:18

11

Q.

Do you know the actual expenses?

12

A.

The actual expenses are not disclosed by

13
14
15
16

user geography.
Q.

Is it possible that this understates

Facebook's expenses?
A.

01:31:29

Because it's an average for the overall

17

company, it's just as likely to understate it as to

18

overstate it.

19
20

Q.

But it's possible it understates the

expenses, correct?

01:31:42

21

A.

A lot is possible.

22

Q.

But it is possible?

23

A.

Well, strictly speaking, there are going

24

to be expenses that cannot be allocated to either

25

one of the geographies, so, in the end, even if we

01:31:58
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had full access to the information, an apportionment

2

was going to be necessary.

3

Q.

01:32:07

And on slide 9, you understand that slide

4

9 concerns revenue by user geography, as noted at

5

the top of the page, correct?

01:32:25

6

A.

Correct.

7

Q.

And do you understand that the term,

8

revenue, for purposes of slide 9, includes more than

9

just revenue generated by advertising?

10

A.

Yes.

Did --

01:32:43

11

Q.

Look at slide 8.

12

A.

Yeah, so I probably, so, there may have

13

been a mistake in the, in the page number, because I

14

used most of these slides, but the idea is

15

advertising revenue, which is on slide 10.

16
17
18
19
20

Q.

01:33:09

So, you intended to use the figures in

slide 10, rather than the figures in slide 9?
A.

I think I, that's what I used in the

calculations.
Q.

I would have to double-check.

Well, I will represent to you, we did the

21

math, and the figures are based on slide 9.

22

want to take a break and do the calculations again,

23

01:33:31

they are based on slide 9, as cited in footnote 66.

24
25

If you

So, is this a mistake in your report?
MR. DIAMAND:

Just a minute.

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THE WITNESS:

2

01:33:49

approximation.

3

Well, it's an error in the

BY MR. CHORBA:

4
5
6

Q.

And that would be an error in the

approximation on page 18, table 1?
A.

Yes.

01:33:52

It might have adjusted a little bit,

7

because advertising revenue is 90-some percent of

8

the total revenue, so the error, if any, is less

9

than 10 percent.

10
11

Q.

What if I told you the error was

01:34:10

$1.2 billion?

12

Is that a little bit, in your opinion?

13

A.

That would be incorrect.

14

Q.

Why?

15

A.

I don't think there's a way that ad

16

revenue, which, for example, just to take the actual

17

numbers, in the second quarter of '15, advertising

18

revenue from the U.S. and Canada is 1826, and total

19

01:34:20

revenue is 1967.

20

Q.

Well, help me understand --

21

A.

That's a difference of 100 million.

22

Q.

Look on table 1.

23

01:34:38

Which figure there is populated by your

24

error in relying on slide 9 instead of slide 10?

25

Which number is that?

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A.

I don't understand the question.

2

Q.

You said that you used slide 9 in your

3

report.

4

were looking at, and, if you can turn to page 18 in

5

your report, I'm just trying to figure out where

6

this impacts your report.

7

this table is impacted by using slide 9 instead of

8

slide 10?

01:34:53

You intended to use slide 10, which, if we

01:35:04

Table 1, which figure on

Is it the annual profit column?

9

A.

Yes.

10

Q.

And would it be each, each instance

11
12
13
14

01:35:19

3.776 billion is used?
A.

Well, yes, although those would be

discounted at different rates.
Q.

Correct, but, if you add them up over

15

eight years, would you be surprised that the net

16

impact is $1.27 billion difference?

17

01:35:35

$15 billion, and it's 13.8 billion.

You have

18

A.

But you can't add the numbers in that

19

column.

20

Q.

Which column?

21

A.

The column of annual profit.

22

Q.

Oh, I understand.

01:35:55

You are going to fix

23

the annual profit column.

It'll be the same number.

24

We'll come back to that, why you are using the same

25

number based on just one quarter, but it would be

01:36:06
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the same number, once corrected, for the whole

2

column, correct?

3

A.

Yes.

4

Q.

Okay.

01:36:08

5

And then you'd multiple it by the

discount factor, and you'd get the discounted value.

6

A.

Right.

7

Q.

01:36:15

But, if the annual profit number comes

8

down 10 percent each year, the discounted value

9

column is going to come down, as well, correct?

10

A.

Right.

So, the ratio in which it would

11

come down would be in the ratio of, roughly, the

12

01:36:27

difference is 125 million here, so, 125 in 1800.

13

Q.

In one quarter.

14

A.

Yes, but the ratio is, is, happens in all

15
16

four quarters.
Q.

01:36:47

Mr. Torres, didn't you add up four

17

quarters, then divide by four, then multiply by

18

89 percent?

19

A.

That's an average, so that ratio, the

20

ratio is the same across the four quarters,

21

approximately the same, so that ratio is the ratio I

22

would expect the numbers to come down.

23
24
25

Q.

01:36:56

But what would you expect the total value

of $15 billion in -A.

I would have to --

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(The following portion was read:

2

Q.

3

01:37:14

value of $15 billion -- )

4
5
6
7
8

Q.

-- in table 1, what would you expect that

to come down to?
A.

01:37:17

I would have to revise the calculations to

make a determination.
Q.

9
10

But what would you expect the total

And I've done that.
And would it surprise you that it's

$1.27 billion off?

01:37:24

11

MR. DIAMAND:

Objection.

12

THE WITNESS:

But it's not, you are not talking

13

about 1.27 in the quarterly number; it's 1.27 in

14

the --

15

BY MR. CHORBA:

01:37:33

16

Q.

That's what I said, sir.

17

A.

-- in the capital amount.

18

Q.

In the total discounted value, total value

19

at the end, where it's 15 million, that's

20

1.27 million overstated, correct?

21
22
23
24
25

A.

01:37:41

So, the ratio is the same, 1/16th,

approximately.
Q.

Do you think a $1.27 billion calculation

error is insignificant?
A.

It depends on its relation to the total,

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so that's why I'm saying it's a 1 in 16 error.

2

Q.

But it's still an error.

3

A.

01:37:57

It's an error in the calculation, if what

4
5

you are saying is correct, because -Q.

Well, is what I'm saying incorrect?

6

What's incorrect about it?

7

01:38:11

slide 9 versus 10.

8
9
10

A.

We just went through

I didn't say it was incorrect.

I said, if

it is correct.
Q.

Well, okay, Mr. Torres, which number is

11

correct?

12

01:38:21

slide 9, or slide 10?

13

A.

14

slide 10.

15

Is it, should the figures be based on

The calculations should have been based on

slide 10.

16

I thought I had done it on the basis of
01:38:36

MR. CHORBA:

Do you want to take a break and

17

look at, do the quick calculation to test?

18

done it, but I need his testimony on what's right,

19

so we can, let's take a break.

20

allotted time for him to recalculate his table.

21

MR. DIAMAND:

23

THE VIDEOGRAPHER:

I'm not using my
01:38:48

Shall we go off the record?

22

We've

24
25

Okay.
It is 1:38.

We are going

off the record.
(Recess:

1:38 p.m. to 1:49 p.m.)

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THE VIDEOGRAPHER:

2

01:49:35

It is 1:49.

3

We are back on the record.

BY MR. CHORBA:

4

Q.

Mr. Torres, when we broke, we were looking

5

at table 1, and I think you'd left to just

6

double-check the calculations.

7
8
9

01:49:41

Do you have any corrections to make to
that table?
A.

Well, like I, I confirmed that the

10

adjustment that would need to be made to the number

11

derived on line 18 of paragraph 39 is a reduction in

12

the order of 9.17 percent that affects the total

13

value determined in table 1.

14

Q.

So --

15

A.

So it's within the order of magnitude that

01:49:54

16
17

01:50:14

I thought.
Q.

Let's put aside the order of magnitude of

18

the error.

19

line 18, 3,776,000,000 per year.

20
21
22
23
24
25

What is the correct number?

It says on

What's the correct number?
A.

Well, I didn't make a note.

01:50:26
It's

9.17 percent less than this.
Q.

What's the correct number in paragraph 39

in your report?
A.

It's slightly less than this by

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2
3

9.17 percent.
Q.

01:50:43

You are not going to tell me what the

number is?

4

A.

I don't have the number at hand.

5

Q.

What did you calculate when we left?

6

What

01:50:47

did you do?

7

A.

8

number.

9

have used.

10
11
12

Q.

I used the spreadsheet to calculate the
I did the sum of the numbers that I should

Can you bring that spreadsheet in so we

01:50:57

can get the correct numbers.
MR. DIAMAND:

Hold on.

I don't think we

13

realized that what you were expecting was the

14

corrected number for line, or line 18 --

15

MR. CHORBA:

16

MR. DIAMAND:

17
18

It is.

Let's break and get it.

We will provide that.

not what our understanding was.
MR. CHORBA:

Okay.

That was

I'm sorry.

Fair enough.

19

Let's break.

20

That's fine.

I should have been clear.

corrected figures in the report.

21

MR. DIAMAND:

22

THE VIDEOGRAPHER:

23

01:51:11

We want the
01:51:17

Okay.
Okay.

It's 1:51.

We're

going off the record.

24

MR. DIAMAND:

25

MR. BATES:

Hold on.
Just so we don't go off the record

01:51:26
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again, I just want to make sure we get exactly what

2

you want, so --

3

MR. CHORBA:

4

MR. BATES:

5

MR. CHORBA:

6

MR. BATES:

7

Yeah.

We're trying to -I understand.

01:51:36

-- provide you with what you

MR. CHORBA:

9

MR. BATES:

11

Mr. Bates --

wanted --

8

10

01:51:28

I understand.
-- the last time around.

MR. CHORBA:

So, paragraph, in paragraph 39 and

01:51:36

in table 1 on page 18, the corrected figures.

12

MR. BATES:

13

For every single -- okay.

MR. CHORBA:

Yeah.

I mean, I want the right

14

numbers so I can ask him questions today and not

15

bring him back again.

16
17

MR. BATES:

Do you want like all the way

through?

18

MR. CHORBA:

19

MR. BATES:

20

THE VIDEOGRAPHER:

21

Yes.
Okay.
It's 1:51.

We're going off

01:51:56

the record.

22
23

01:51:50

(Recess:

1:51 p.m. to 2:05 p.m.)

THE VIDEOGRAPHER:

24

It's 2:05.

25

We're back on the record.

BY MR. CHORBA:

02:05:57
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Q.

Mr. Torres, when we broke, you were going

2

to take another look at the figures cited in

3

02:05:57

paragraph 39, footnote 66, and table 1.

4

Do you have corrections for us?

5

A.

Yes.

02:06:06

6

Q.

Can you give those to me, please.

7

A.

Okay.

So, starting in paragraph 39, at

8

the end of line 13, the advertising revenue is in

9

the order of 1,459,000,000 per quarter.

And in

10

footnote 66, at the end of the second line, the four

11

quarters would be the four quarters between

12

July 2014 through June 2015.

13

02:06:31

1,622,000,000.

The correct number is

14

Q.

That's in place of the 1771?

15

A.

1771.

Yes.

And then in line 18, at the

16

beginning of the line, the profit is 3,459,000,000

17

02:06:52

per year.

18

MR. DIAMAND:

Would you permit me to make one

19

additional point, which is that there's a reference

20

to slide 9 in footnote 66.

21

MR. CHORBA:

22

MR. DIAMAND:

23

02:07:11

Thank you, Nick.
Which would be, I think, now,

slide 10.

24

MR. CHORBA:

25

MR. DIAMAND:

Thank you.
I apologize for the objection.

02:07:18
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1

BY MR. CHORBA:

2
3

Q.

02:07:23

So, those three corrections on page 15, is

that all, Mr. Torres?

4

A.

Yes.

And then that feeds into the table

5

1, where the annual profit numbers would be

6

3,459,000,000, and the discounted values in that

7

line, for the whole line, for the full column, would

8

be 2915, 2457, 2070, 1745, 1470, 1239, 1044, and

9

880, for a total of 13,820,000,000.

10

Q.

Thank you.

11

A.

Yes.

12

Q.

Thank you for doing that.

02:07:32

13

Was that everything?

02:08:18

I appreciate

it.

14

Is, you referenced earlier a spreadsheet.

15

Do you have a working sheet that has the

16

calculations for table 1 that you then used to

17

02:08:27

generate table 1?

18

A.

Yes.

I have a model set up in my

19

software.

20

*RQ

21

a copy of that, electronic copy of that model?

22

maybe I should direct this to you, Mr. Diamand, but

23

we have, I'm slightly off, and I think it may be

24

just rounding errors on our part.

25

consult that with our expert, and look at the actual

MR. CHORBA:

Would it be possible for us to get

02:08:46

And

I'd like to just
02:09:00
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formulas, just to make sure.

2

MR. DIAMAND:

3

MR. CHORBA:

4
5

02:09:03

Okay, we can address that.
Thank you.

BY MR. CHORBA:
Q.

So, setting aside the mathematical error

6

that we discussed, Mr. Torres, do you have any other

7

concerns about the accuracy of the information

8

02:09:16

provided in paragraph 39 on page 15?

9

A.

Not concerns.

These, because these are

10

estimates, we're still waiting for the information

11

that corresponds to U.S. advertising revenue.

12

are just my estimates of that number.

13

02:09:34

These

So, when we get it, we'll substitute it,

14

and there won't be any question of these

15

calculations.

16

Q.

17
18
19
20
21

02:09:49

You said there's U.S. advertising revenue.
What information are you waiting for?

A.

The advertising revenue that reflects only

the U.S.
Q.

And it's your understanding that's been

02:10:03

requested?

22

A.

Yes.

23

Q.

Are you assuming that all advertising

24

revenue to Facebook is attributable to the social

25

graph?

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that determination, that determination would

2

constitute a quantification of the potential overlap

3

of the calculations, so, if there is information to

4

determine that, by somebody else, I could make a

5

count of that potential overlap.

6

BY MR. CHORBA:

7
8
9
10
11
12

Q.

02:13:24

But in your report, as stated, you haven't

developed a methodology to account for that overlap?
A.

As the methodology states, I don't have

that information available.
Q.

02:13:39

What if an individual, the same individual

sent the same URL in multiple Facebook messages?

13
14

02:13:08

Would each message be accounted for
separately, under your damages methodology?

15

MR. DIAMAND:

Objection.

02:13:58

16

THE WITNESS:

The methodology depends, is

17

structured in two stages.

One is to determine

18

eventually the value per link, and then I would

19

incorporate the number of links captured that fall

20

under the definition of a class.

02:14:20

21

So, it's a technical determination.

22

take that number from the technical analysis.

23

BY MR. CHORBA:

24
25

Q.

I would

Turning back to paragraph 39, how did you

determine that the average cost of revenue,

02:14:34
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have you excluded expenses for research and

2

development?

3

A.

Yes.

4

Q.

But not in all of them?

5

A.

No.

02:17:20

In some valuations, yes.

It depends on what is being measured.

6

In some valuations, the research and development is

7

the only aspect it would take.

8

02:17:30

you would exclude, so, it depends.

9

Q.

In some, it's one

And in, staying on slide 13 of Exhibit 5,

10

why did you pick these four quarters of Q3 2014

11

through Q2 2015?

12

A.

02:17:46

Both in the revenue and the expenses, I

13

used the last four quarters, so, the trailing 12

14

months as of the latest information that I had

15

available by the time I did the report.

16
17
18

Q.

02:18:02

Are you assuming that costs do not change

over time, or will not change over time?
A.

No.

The implicit assumption is that I'm

19

using the cost structure that was prevalent on

20

average in the last, in the trailing 12 months.

21

Q.

02:18:15

If you were tasked with valuing the social

22

graph of Myspace in 2007, would you have used a

23

similar methodology as one that you've used here?

24

MR. DIAMAND:

Objection.

25

THE WITNESS:

Well, in that hypothetical

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situation, I would have to, to perform a series of

2

due diligence and preliminary analyses.

3

sure that Myspace had the same revenue model, so I

4

would have to reconsider the revenue model then,

5

and, to see if that is sufficient.

6

BY MR. CHORBA:

7

Q.

02:18:46

I'm not

02:19:06

What about the discount factor?

Would you

8

have used the same methodology to come up with a

9

discount factor?

10

A.

Yes.

The general methodology that I use

11

for the discount factor is the same everywhere.

12

This is the generally accepted way of determining

13

02:19:16

that discount rate.

14

Q.

In table 1 on page 18, are you assuming

15

the social graph will generate the same annual

16

profit every year?

17

A.

Approximately, yes.

02:19:29

The underlying

18

assumption is that in valuing the asset, I'm not

19

considering further growth of the asset.

20

just the asset as it was in, at the end of the

21

second quarter of 2015.

22

That asset doesn't go away.

This is
02:19:52

It's an

23

asset, so it continues to generate revenue for, on

24

average, an eight year remaining useful economic

25

life.

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Q.

So at the end of paragraph 44, you say,

2

therefore, the impact of additional information

3

intercepted from private messages on Facebook's

4

revenue flows directly to the bottom line,

5

parentheses, profits.

02:25:24

6
7

02:25:34

What's the basis for that statement?
A.

The definition of profits.

Profits is,

8

or, the incremental profits are the incremental

9

revenue minus incremental costs.

If incremental

10

cost is zero, incremental profit is incremental

11

revenue.

12
13
14

Q.

02:25:50

And if incremental profits isn't zero,

then there would be a change, correct?
A.

Yes.

If incremental costs are greater

15

than zero, then the profits would be a little lower

16

than revenue.

17

Q.

Thank you.

02:26:01

I will read paragraph 45.

18

Again, I'll read it:

19

information, I would estimate the value of the

20

enhancement to the social graph as commensurate with

21

the ratio of, one, intercepted URLs in private

22

messages during the class period, to two, number

23

two, the total number of links on the social graph.

24
25

With the relevant quantitative

02:26:16

What is the relevant quantitative
information that you require?

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A.

The number of intercepted URLs in private

2

messages during the class period, and the number of

3

02:26:35

links on the social graph.

4

Q.

So, it's those two numbers, one and two?

5

A.

Those two classes of numbers.

The number

6

is different every day, so there will be a periodic

7

02:26:46

report during the class period.

8
9
10

Q.

And how would you determine the number of

intercepted URLs in private messages during the
class period?

02:27:01

11

MR. DIAMAND:

Objection.

12

THE WITNESS:

It's not my task to determine

13

that.

14

take it from the technical determination.

15

BY MR. CHORBA:

16

That's a technical determination.

Q.

I would

02:27:12

And if it were not possible technically to

17

determine the number of, quote, intercepted URLs,

18

would you be able to complete your analysis?

19

A.

In that situation, it would still be the

20

case that I have to rely on whatever is the

21

determination of what the accused activities

22

resulted in, so it would require considering a

23

different measure if intercepted URLs and private

24

messages is not the right one.

25

Q.

So, let me just make sure I understand.

02:27:26

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member sends the same number of messages on average

2

per month, for purposes of this analysis?

3

A.

No.

4

Q.

Why not?

5

A.

I didn't have to, because I didn't

02:37:53

6

consider those, that's not part of the, the analysis

7

02:38:01

in the report.

8

Q.

Why not?

9

A.

Because I don't have the information about

10

what, how many messages each user sent, et cetera,

11

how many fall into the definition of the class, and

12

I'm going to wait to get that in order to, to use

13

any information in that realm.

14

Q.

02:38:14

Did you undertake any analysis of the

15

number of messages that the named plaintiffs in this

16

case have sent?

17

A.

No.

18

Q.

Have you ever seen those figures?

19

A.

No.

20

MR. CHORBA:

02:38:32

21

Let's mark the next one Exhibit 6.

02:38:43

(Exhibit 6 was marked for identification

22

by the court reporter and is attached hereto.)

23

MR. CHORBA:

24
25

And let's do 7, while we're at it.

(Exhibit 7 was marked for identification
by the court reporter and is attached hereto.)

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organizations that contemplated hundreds and, if not

2

thousands, of advertising.

3

BY MR. CHORBA:

4

Q.

Which ones?

5

A.

So, for example, the Comdesk, Nielsen, and

03:32:04

6

the study, in particular, that's behind table,

7

table, table, table 3, from social code, that

8

analysis considered 5 million ads placed over, by 50

9

03:32:11

companies.

10

So I, I reference those kinds of studies

11

that cover a broad spectrum of advertisers, not any

12

03:32:38

one advertiser in particular.

13

Q.

And, again, that's just one survey, but

14

you didn't familiarize yourself with the practices

15

of every marketer that advertises on Facebook.

16

MR. DIAMAND:

Objection.

17

THE WITNESS:

03:32:57

I would think that it's virtually

18

impossible to familiarize yourself with the

19

practices of every advertisers on Facebook.

20

BY MR. CHORBA:

21

Q.

Agreed.

03:33:09
Turning back to paragraph 62 in

22

your report, we'll save some time if you just keep

23

it open, because we're going to concentrate on that

24

section.

25

And, again, you didn't perform any actual

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2

THE WITNESS:

Yes.

03:34:25

BY MR. CHORBA:

3

Q.

Which case?

4

A.

In the Fraley v. Facebook case.

5

Q.

Did that report ultimately provide an

6
7

03:34:31

estimated amount of damages to the putative class?
A.

If I recall correctly, I may have an

8

estimate, but I don't think I, I gave a definite

9

number, because the -- I have an estimate based on

10

broad averages based on one study that was done by

11

Facebook.

12
13
14
15
16

Q.

03:35:00

And do you have a broad estimate based on

averages for damages in this case?
A.

In this section of the methodology, no;

that's why I'm using the literals Y and Z.
Q.

03:35:14

And how about for your other portions of

17

your methodology?

18

damages?

19

A.

No.

Do you have a rough estimate of

I have a rough estimate of part of

20

the components of the methodology.

21

the full information about the messages that are

22

subject to the class.

23
24
25

Q.

I'm waiting for

03:35:28

And what is your rough estimate of the

amount that you were able to calculate?
MR. DIAMAND:

Objection.

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THE WITNESS:

So, I only calculated the, as an

2

estimate, the value of the social graph as of the

3

second quarter of 2015.

4

03:35:45

BY MR. CHORBA:

5

Q.

And what is that value?

03:35:56

6

A.

That's the value from table 2.

7

Q.

That's the one that we corrected earlier?

8

A.

Yes.

9

Q.

So, $13 billion?

10

A.

13.8 billion, yes.

11

Q.

And have you opined on how, if that's a

Table 1.

12

component of the damages, how those will be

13

03:36:12

allocated, apportioned to putative class members?

14

MR. DIAMAND:

Objection.

15

THE WITNESS:

Yes.

16

03:36:26

in the report.

17

I believe that is in the,

BY MR. CHORBA:

18

Q.

Where are you pointing, sir?

19

A.

To paragraph 60, on page 22, where it says

20

that it's, it is my opinion that a proper

21

attribution of damages among plaintiff class

22

members, calculated as benefits derived by the

23

defendant, should be based on the number of links,

24

URLs intercepted.

25

Q.

So, how would you apportion that, pursuant

03:36:42

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to that statement, how would you apportion the

2

$15 billion, or I think it's now $13 billion?

3

MR. DIAMAND:

Objection.

4

THE WITNESS:

03:36:57

Well, first, the 13 billion is

5

not the amount of damages.

6

social graph.

7

That's the value of the

BY MR. CHORBA:

8

Q.

9

MR. DIAMAND:

Objection.

10

THE WITNESS:

I didn't calculate it.

03:37:07

11

What's the amount of damages, then?

BY MR. CHORBA:

12

Q.

13

MR. DIAMAND:

14

03:37:15

How are you going to calculate it?
Objection.

Asked and answered.

BY MR. CHORBA:

15

Q.

How are you going to calculate it?

16

MR. DIAMAND:

Also, objection.

17

THE WITNESS:

Applying the methodologies set

18

out in section 4 A.

19

03:37:20

BY MR. CHORBA:

20

Q.

Are certain class members under your

21

methodology going to get more than other putative

22

03:37:33

class members?

23

A.

I don't know for a fact.

24

Q.

Will certain class members get zero

25

It is possible.

dollars, under your methodology?

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THE WITNESS:

Correct, so I don't have in front

2

of me the information that I would need to make that

3

determination.

4

that's my answer.

5

BY MR. CHORBA:

03:40:46

6

Q.

So, assuming complete information,

03:40:59

So, again, I'm asking you to assume that

7

there was no social plugin on this Craigslist

8

website on July 11, 2012.

9

there wouldn't be damages under section 4 B for that

If that's true, then

10

particular message, correct?

11

There might be under 4

A, but not under 4 B.

12

MR. DIAMAND:

Objection.

13

THE WITNESS:

03:41:11

So, in that hypothetical

14

situation, if the information that has not been yet

15

provided fits that construct, probably not.

16

BY MR. CHORBA:

17

Q.

03:41:25

And the information that has not been

18

provided would be whether or not that Craigslist

19

website had a social plugin at the time of that

20

message.

21
22
23

A.

03:41:42
For this aspect, yes, that's what we would

like to know.
Q.

Thank you.

Let's turn back, and, again,

24

I'm in your report, I think we're on paragraph 62,

25

where you have the X, excuse me, the Y and the Z

03:41:52
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A.

Yes.

03:45:57

2

Q.

And what is that market?

3

A.

I believe there are reports that marketers

4

are able to acquire likes, or increases to their

5

counts, for a fee.

6

Twitter, et cetera.

7

Q.

I see that advertised on

03:46:11

And does, to the extent there is such a

8

market, does the market value all likes the same

9

way?

10

MR. DIAMAND:

Objection.

11

THE WITNESS:

The concept of the market value

12

refers to everything in the market, depending on the

13

definition of the market.

14

the same, but not all likes have the same value,

15

depending on their use.

16

03:46:28

BY MR. CHORBA:

17

Q.

So, in that sense, it's

03:46:54

And would the likes differ based on the

18

third party website, for example, Coca Cola versus a

19

personal blog?

20

MR. DIAMAND:

Objection.

21

THE WITNESS:

Yes.

03:47:05

In principle, each like can

22

be leveraged in different ways so it's valued

23

differently.

24

Facebook, ultimately.

25

BY MR. CHORBA:

The point is, the benefit is to

03:47:21
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2

Q.

And it's your opinion that that benefit to

03:47:21

Facebook is the same?

3

MR. DIAMAND:

Objection.

4

THE WITNESS:

No, that's not my opinion.

5

BY MR. CHORBA:

03:47:29

6

Q.

What is your opinion?

7

A.

That Facebook benefits from the aggregate.

8

Q.

So the aggregate, even though if

9

individual increased likes are valued differently,

10

in the aggregate, it's benefiting from the

11

collective total of all of those.

12

MR. DIAMAND:

Objection.

13

THE WITNESS:

Yes.

03:47:42

That's, that's the type of

14

economy that Facebook works in.

15

BY MR. CHORBA:

16

Q.

03:48:00

If you look at paragraph 64 on the next

17

page, in the middle of the page, or middle of that

18

paragraph, and you can review the whole paragraph,

19

but I want to direct your attention to like 11,

20

where it states, while the cost is relatively

21

straightforward to ascertain, in the digital

22

advertising environment, gains from advertising are

23

susceptible to estimation in a variety of ways, such

24

as by the number of visitors to a web page, the

25

number of incoming links, the activity on social

03:48:24

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2
3
4

overcompensated in that hypothetical?
MR. DIAMAND:

Objection.

03:57:18

Misstates prior

testimony.
THE WITNESS:

In that hypothetical situation,

5

you are also assuming that the URLs were intercepted

6

by Facebook during the time when they were

7

incrementing the likes, and the methodology is

8

attributing, is not measuring the effect, the

9

detriment, for example, to the class member, so it's

10

allocating to class members as a whole the benefits

11

to Facebook as a whole.

12

03:57:28

BY MR. CHORBA:

13

Q.

I understand.

03:57:57

But, once it's allocated --

14

that's how you are measuring it -- but, then, once

15

you get to the stage when you are allocating it to

16

individual class members, if it is allocated to a

17

class member who sent a message containing a URL,

18

but there was no incrementation of the like count,

19

would you agree that that would overcompensate that

20

specific class member?

21

MR. DIAMAND:

22

03:58:08

03:58:21

Objection.

BY MR. CHORBA:

23

Q.

Yes or no?

24

A.

No, it wouldn't, because it would be,

25

actually, it would be exact, because Facebook had to

03:58:26
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inflated like count; do you know that?

2

A.

I don't understand the question.

3

Q.

What is the value?

4

MR. DIAMAND:

Objection.

5

THE WITNESS:

04:04:52

The numeric value?

6

04:05:00

BY MR. CHORBA:

7

Q.

Yeah, let's start there.

8

A.

I don't know what the number is.

9

Q.

What would you need to know that?

10

A.

So, the information that I list here is

11

the, how many URLs were intercepted that had, that

12

eventually led to like counts being increased, and

13

the ratio of those increases to the total like

14

counters, and that applied to the value of the

15

advertising revenue perceived by Facebook.

16

04:05:07

small portion.

17

That's a

04:05:37

That, divided by, so, that value divided

18

by the inflated like count, the total inflated like

19

count, gives the value of the average or the, of,

20

each, an average, in my sense there, is the same.

21

Q.

04:06:00

How do you propose, or do you propose a

22

way to determine the number of URLs that you claim

23

were intercepted?

24

MR. DIAMAND:

Objection.

25

THE WITNESS:

No.

That's a technical question

04:06:13
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1

THE WITNESS:

So, not here, but, typically, in

2

statistical inference, a 5 percent error is

3

customary and generally accepted.

4

04:08:54

BY MR. CHORBA:

5

Q.

And if you are dealing with many billion

6

number of messages, in the aggregate, not containing

7

URLs that had like counts incremented, but I'm

8

referring to table 2, what would a 5 percent error

9

04:09:07

rate, in your estimation, translate into?

10

A.

It wouldn't translate into a number that

11

can be compared to the number of messages.

12

5 percent refers to something else, to the

13

probability of making a mistake in the calculation

14

04:09:25

of the average with respect to the population mean.

15
16

Q.

The

So you said, a 5 percent error rate is

04:09:45

customary and generally accepted.

17

Would the error rate be higher or lower

18

when you are dealing with tens of billions of

19

messages?

20

MR. DIAMAND:

Objection.

21

THE WITNESS:

Again, in a statistical analysis,

22

the error rate refers to those two probabilities.

23

It does not refer to multiplying it by the number of

24

elements in the set.

25

BY MR. CHORBA:

04:09:56

04:10:08
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1

Q.

2

So, are you able to say the bare minimum?

04:10:08

Well, let me ask you, based on the

3

messages that are contained in Exhibits 6 and 7, are

4

you able to come up with an estimate?

5

MR. DIAMAND:

Objection.

6

THE WITNESS:

An estimate of what?

7

BY MR. CHORBA:

8
9
10

Q.

An estimate of the number of intercepted

A.

I don't understand the question.

URLs?

11
12
13

04:10:19

04:10:26

Based on, based on what?
Q.

Based on the messages that are summarized

in Exhibits 6 and 7 in the chart.

14

MR. DIAMAND:

15

Objection.

THE WITNESS:

04:10:38

16
17
18

BY MR. CHORBA:

19

Q.

20

A.

04:10:49

21
22

The reference point I would take or the

23

comparison that I would do is that a 5 percent error

24

rate for a sampling of the U.S. population requires

25

a sample size in the thousands of people.

04:11:15
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1

So, a poll, to be statistically

2

significant to represent the views of 300 million

3

people, would need to take a look at 5 or 6,000.

4

depends on the estimates of the variance that's

5

04:11:18

relevant for the variable being measured.

6

large proportion of the population in the U.S., I

8

would expect that a proper determination of the

9

04:11:35

So, because Facebook is covering such a

7

It

sampling techniques that would be applicable if

10

Facebook doesn't come up with the actual

11

information, would be in the order of the thousands

12

of people, as, as a representative sample that would

13

give, its averages would give a statistically sound

14

representation of the population mean.

15

Q.

And so it wouldn't be a number of

16

04:12:14

messages; it would be a number of people who use

17

04:11:54

Facebook?

18

MR. DIAMAND:

Objection.

19

THE WITNESS:

Well, I would think that it would

20

depend more on the number of members, because the

21

number of messages per member can vary, but it might

22

be necessary to consider the joint distribution of

23

messages and members, as well.

24

BY MR. CHORBA:

25

Q.

Turning to paragraph 73 --

04:12:28

04:12:41
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1

this benefit may have been converted to advertising

2

revenue benefiting Facebook.

3
4

04:25:07

Do you know what the fraction of the
benefit is?

5

A.

Not as of this date, no.

6

Q.

And does your report assume that

7

advertisers would have passed 100 percent of their

8

04:25:18

cost savings on to Facebook?

9

A.

Is that my assumption, that they would --

10

Q.

Yes.

11

A.

No.

12

Q.

What is your assumption, then?

13

A.

That a fraction would have been converted.

14

Q.

Which fraction?

15

MR. DIAMAND:

Objection.

16

THE WITNESS:

I don't have the information to

Is that your assumption?

17

04:25:49

determine that fraction.

18

04:25:37

BY MR. CHORBA:

19
20
21
22
23
24
25

Q.

Can you tell me if it's more than

50 percent?
A.

04:25:55

I can't tell you, because I don't have the

information to determine it.
Q.

So you can't give me any estimate on the

range of zero percent to 100 percent?
A.

No.

Without information, all I can tell

04:26:05
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1

spending, because there is an overlap in the time

2

periods, and that is basically what creates that

3

overlap that has to be accounted for.

4

04:29:13

So, if it were to be the case that benefits

5

from one perspective are the same as the benefits

6

from the other perspective, then, yeah, the overlap

7

with, would mean that you wouldn't add them

8

together.

9

BY MR. CHORBA:

10

Q.

04:29:28

You would just have one.

And what if the benefits were greater than

11

the calculated effect from the incremental

12

advertising revenue?

13

04:29:42

negative number?

14

A.

That would result in a

In, it would be a very strange

15

hypothetical situation where that would even be the

16

case, because of the length of the time period.

17
18
19

Q.

04:30:06

But, if it were the case, it would be a

negative number?
A.

So, whatever the methodology determines

20

for those two numbers would have to do the analysis

21

of the overlap, and, if the overlap overwhelms the

22

situation, then only one of them would be

23

appropriate.

24

Q.

25

04:30:16

So, you would never have a negative

number; you'd just pick the higher one?

04:30:30
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1
2
3

A.

No.

The net.

I would always pick the net

04:30:32

damages.
Q.

But how would the net, if you are saying

4

that you would deduct the amounts, the analysis in

5

this section shall be deducted from the benefits

6

calculated under the methods described in the

7

previous section, okay, I'm saying, if the benefits

8

were greater than the calculated --

9

A.

04:30:43

Now, what this means is that --

10

MR. DIAMAND:

Objection.

04:30:59

11

THE WITNESS:

-- what this means is that the

12

overlap has to be taken into account.

That overlap

13

can be calculated, when everything is said and done,

14

and that overlap means that only one of the two

15

calculations will prevail.

16

BY MR. CHORBA:

17

Q.

One of the two, meaning A or B?

18

A.

04:31:12

So, if you add A and B, you would then

19
20

have to take away the overlap.
Q.

I see.

Okay.

So, that calculation is

21

just attempting to deduct that overlap for the time

22

period.

23

A.

Yes.

24

Q.

04:31:21

Does your damages methodology account for

25

It would avoid double-counting.

the possibility that the benefit of the challenged

04:31:37
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I, the undersigned, a Certified Shorthand

2

Reporter of the State of California, do hereby

3

certify:

4

That the foregoing proceedings were taken

5

before me at the time and place herein set forth;

6

that any witnesses in the foregoing proceedings,

7

prior to testifying, were duly sworn; that a record

8

of the proceedings was made by me using machine

9

shorthand which was thereafter transcribed under my

10

direction; that the foregoing transcript is a true

11

record of the testimony given.

12

Further, that if the foregoing pertains to the

13

original transcript of a deposition in a Federal

14

Case, before completion of the proceedings, review

15

of the transcript [X] was [

16

] was not requested.

I further certify I am neither financially

17

interested in the action nor a relative or employee

18

of any attorney or party to this action.

19
20
21

IN WITNESS WHEREOF, I have this date subscribed
my name.
Dated: 1/5/2016

22
23
<%signature%>
24

CHRIS TE SELLE

25

CSR No. 10836
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APP. 1089

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

OAKLAND DIVISION

4

__________________________

5

MATTHEW CAMPBELL,

)Case No.

6

MICHAEL HURLEY, and

)C 13-05996 PJH (MEJ)

7

DAVID SHADPOUR

)

8

Plaintiffs

)

9

vs.

)

10

FACEBOOK, INC.

)

11

Defendants

)

12

___________________________

13
14

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

15
16

Videotaped Deposition of Jennifer Golbeck

17

Washington, D.C.

18

December 16, 2015

19

9:03 a.m.

20
21

Reported by:

Bonnie L. Russo

22

Job No. 2196773

23
24
25

PAGES 1 - 357
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

you looking at or opining on?
A.

So I looked at two versions of this

3

guy's -- the fraudulent guy's Web sites -- he

4

had two Web sites -- and basically just said

5

the name of Equity Trust Company didn't appear

6

on those Web sites.

7

Q.

When you refer to the Internet

8

archive, is that the same as the Wayback

9

Machine?

10

A.

It is.

11

Q.

Okay.

12
13
14
15
16
17

Is that something you rely

upon in -- in your work?
A.

Pretty -- I use it pretty

frequently.
Q.

Is it pretty -- do you find it to be

fairly reliable?
A.

It's -- yeah, for what it is, right?

18

It's definitely not a complete archive of

19

everything that's out there, but the copies of

20

things that they do have are accurate.

21

And -- and I -- this is, again,

22

totally outside the area of my expertise

23

legally, but I think -- my understanding is

24

that they actually have said that legally it

25

can be assumed as true that, if something was
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1

archived on March 1st, that that absolutely was

2

there on March 1st.

3

in that way.

4

Q.

So it seems reliable to me

Other than the expert reports and

5

testimony we've talked about, is there any

6

other -- are there any other expert reports or

7

testimony that you've ever given?

8

A.

No.

There are other cases that I've

9

been invited to participate in, especially

10

patent cases, but ones that I've declined.

11
12

Q.

Have you ever served as a

nontestifying consultant in a -- in a lawsuit?

13

A.

So those --

14

Q.

Other than the E. Stephanie and --

15

you'll have to remind me of the name of the

16

other one.

17

A.

Yeah.

18

Q.

Sherry's Dance Studio.

19

A.

-- I think --

20

Q.

Yeah.

21

A.

-- is what that was.

22
23
24
25

Sherry's Dance Studio, I --

Those I would count in there.

Other

than those, I don't -- I don't think so.
Q.

If you -- in the instances when

you've declined to work in a patent case, why
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1

A.

Yes.

2

Q.

Have you observed people with

3

differing degrees of knowledge -- and here I'm

4

talking about social network users -- regarding

5

sort of the collection and processing of their

6

data by the social network?

7
8

A.

Yeah.

There's vastly different

understandings.

9

Q.

Why do you think that is?

10

A.

It's really complicated, you know.

11

It -- and I think it's hard even for people who

12

are trained in that space to -- to really

13

understand what's happening because its

14

relatively opaque.

15

I have been surprised at times on --

16

on what data is made available say to third

17

parties.

18

about that, right?

And I spend all my time learning

19

Q.

Uh-huh.

20

A.

That -- kind of how data gets out.

21

So I say in a lot of these talks, like if I

22

didn't know, like literally no one on earth can

23

be expected to know because it's my full-time

24

job, and I'm one of the experts on it.

25

So, you know, it's complicated.

And

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1

then there's people with varying degrees of how

2

interested they are in tracking this down --

3

Q.

Uh-huh.

4

A.

-- right?

I think it's analogous to

5

like terms of service, right?

6

Most people don't.

7

that gives you a big difference in what you

8

understand.

9

Q.

I read them.

And, you know, that's --

Would you agree with me that some

10

people understand that, when they are

11

interacting with a -- with a Web site, that

12

there are various electronic processes

13

happening in order to render the site and, you

14

know, basically make the site run, some people

15

are sort of aware of that, and others don't

16

have a clue?

17
18

MR. RUDOLPH:
Vague.

19

Objection.

Form.

Compound.
THE WITNESS:

I think that's true,

20

that there's varying levels of understanding

21

that people have on how that works.

22
23

BY MR. JESSEN:
Q.

Have you observed differing degrees

24

of consent from users for collection and use of

25

their data?
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1

general is -- I find it's much more difficult

2

to use.

3

There are certainly more people with

4

public profiles on Facebook, but it's a lot

5

harder to find them in the way they can be

6

found on Twitter or Pinterest, for example.

7
8

Q.

11

So tell me briefly what the

thesis was of the -- of the TED talk.

9
10

Okay.

A.

Oh.

I've never thought of it that

Q.

Or maybe not -- "thesis" is the

way.

12

wrong word, but the -- the point you were

13

making.

14

A.

I think -- you know, talking about

15

what people know and what they don't, hardly

16

anyone who hasn't seen my TED talk knows that

17

these kind of person- -- private personal

18

attributes can be inferred about them from what

19

they're doing online.

20

And the purpose of the TED talk was

21

really to kind of explain the vary powerful

22

things that we can do with this technology and

23

get people thinking about the implications.

24
25

Q.

And one of the things, I think --

you know, forgive me if I'm getting this
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1

wrong -- but you discuss with homophily?

2

A.

Yes.

You got it right.

3

Q.

What is -- what -- you may have to

4

give the court reporter the spelling of that

5

one.

6
7

But what is -- what is that exactly?
A.

Yeah.

So homophily,

8

H-O-M-O-P-H-I-L-Y, is a concept from sociology

9

actually that basically birds of a father flock

10

together, that we tend to be friends with

11

people who share our traits more than people

12

randomly pulled from the general population

13

would share our traits.

14

So you're right; you're friends with

15

rich people.

16

friends tend to be poorly educated.

17

to race, sexual orientation, income, education,

18

kind of across the board.

19

If you're poorly educated, your
It applies

Not that all of your friends are

20

like that, but your traits are more common in

21

your friends than they are in the general

22

population.

23

Q.

And does this -- is this sort of --

24

is this the phenomenon that allows a researcher

25

like yourself to look at seemingly random data,
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1

like what kind of fries you like, and then make

2

some sort of -- and I'm phrasing this really

3

badly -- but draw an inference about it based

4

upon attributes that you wouldn't think would

5

correlate with that?

6

A.

Sometimes.

7

Q.

Not a good question.

8

A.

So in the curly fries example in the

9

talk, which you were just talking about --

10

Q.

Yeah.

11

A.

-- you know, I kind of hypothesize

12

that homophily was one of the things that play

13

there.

14

those algorithms --

Sometimes it's used very directly in

15

Q.

Uh-huh.

16

A.

-- where they're relying on that

17

basically as the entirety.

18

role in a lot of those algorithms, though

19

sometimes it's much less explicit.

20
21
22

Q.

I think it plays a

Is homophily at all relevant to the

organization of social networks?
A.

In -- so are you asking could a

23

social network organize around that principle,

24

or does it emerge in social networks?

25

Q.

I guess more the latter.
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1

A.

I think it's true.

I mean the

2

principle says these are the kinds of people we

3

tend to choose as friends, right?

4

liberal, I will tend to choose other liberal

5

people as my friends.

6

If I'm a

And so, in that case, it can

7

influence how a social network forms.

8

find out some guy is a ranging racist, I may

9

unfriend him on Facebook, and that affects the

10

If I

network.

11

So that -- that could be a way

12

homophily is considered, its play in

13

influencing the structure of the network.

14

Q.

15

graph.

16
17

Earlier you talked about social

Remind me what you meant by that?
A.

Social graph is just a -- a term to

18

refer to people and their connections to one

19

another.

20
21
22
23

Q.

And generally how is the data in a

social graph organized?
A.

Like from a computing perspective or

from a mathematical perspective?

24

Q.

I think a computing perspective.

25

A.

So there it really depends.

So from
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

the mathematical perspective, it tends to be

2

represented in a graph structure, which is a

3

mathematical concept --

4

Q.

Okay.

5

A.

-- and to tease into their

6

connections to one another.

7

Q.

Uh-huh.

8

A.

Com- -- computationally, you could

9

store that in a relational database.

There's

10

also graph-based databases that -- that are

11

network-based instead of relational.

12

really depends on the implementation.

13
14
15
16
17

Q.

Uh-huh.

So it

Do you know if Facebook has

a social graph?
A.

I mean they certainly have people

connected to other people.
Q.

Uh-huh.

And is that something -- do

18

you know if there are other things that go into

19

their social graph?

20

A.

Well, I would just want to be

21

careful about terminology here, because

22

Facebook has a thing that they call "the social

23

graph" --

24

Q.

Right.

25

A.

-- which is different from the kind
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

of generic way I'm using the term.

2

Q.

Okay.

3

o

4

s

n

t

y
e

5
6
7
8

t

d

f

-

t

d

f

9
10
11
12
13

o

s

l

14
15
16

d

a

17
18
19

e

e

n

20
21
22
23
24
25
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APP. 1098

App. 1098-1347
Filed Under Seal

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

,

d

e

a

y

r

2
3
4
5
6
7

MR. JESSEN:

8

further questions at this time.

9

Okay.

I don't have any

I would renew my request for those

10

three e-mails between Dr. Golbeck and the

11

plaintiffs' counsel before she was engaged.

12
13

MR. RUDOLPH:

We're -- we're going

to have to get back to you on that.

14

MR. JESSEN:

15

MR. RUDOLPH:

16

to -- to look into it.

17

MR. JESSEN:

Okay.

And I'll just --

Haven't had have time

Even though I think

18

it's unlikely I would bring you back, I will

19

just reserve my right to bring you back if need

20

be.

21

THE WITNESS:

22

that we have left on the record.

23

fun.

24

MR. JESSEN:

25

THE WITNESS:

For the 15 seconds
That'd be

They might -I'll totally do 15
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1

seconds.

2

MR. JESSEN:

They might give me

3

another -- you know, little -- little bit --

4

but hopefully that won't be necessary.

5

THE WITNESS:

There -- there's

6

nothing too exciting in those e-mails.

7

No.

8

communications.

I know.

9
10

I shouldn't talk about any of the

MR. JESSEN:
your time.

Well, thank you for

Happy birthday.

11

THE WITNESS:

12

MR. JESSEN:

13

Thank you.
And I have no further

questions.

14

MR. RUDOLPH:

15

THE VIDEOGRAPHER:

16
17
18
19
20

So...

Yeah.

No questions.
Off the record at

6:44.
This is the end of Media Unit 4 and
the end of the deposition.
(Whereupon, the proceeding was
concluded at 6:45 p.m.)

21
22
23
24
25
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APP. 1349

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

CERTIFICATE OF NOTARY PUBLIC
I, Bonnie L. Russo, the officer before

3

whom the foregoing deposition was taken, do

4

hereby certify that the witness whose testimony

5

appears in the foregoing deposition was duly

6

sworn by me; that the testimony of said witness

7

was taken by me in shorthand and thereafter

8

reduced to computerized transcription under my

9

direction; that said deposition is a true

10

record of the testimony given by said witness;

11

that I am neither counsel for, related to, nor

12

employed by any of the parties to the action in

13

which this deposition was taken; and further,

14

that I am not a relative or employee of any

15

attorney or counsel employed by the parties

16

hereto, nor financially or otherwise interested

17

in the outcome of the action.

18
19
20

<%signature%>

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Notary Public in and for

22

the District of Columbia

23
24

My Commission expires:

June 30, 2020

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APP. 1350

APP. 1351

App. 1352-1374
Filed Under Seal

APP. 1375

App. 1376-1411
Filed Under Seal

APP. 1412

App. 1413-1458
Filed Under Seal

APP. 1459

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

MATTHEW CAMPBELL, MICHAEL

4

HURLEY, and DAVID SHADPOUR,

5

on behalf of themselves and

6

all others similarly situated,

7
8
9

Plaintiffs,
vs.

No. 4:13-cv-05996-PJH

FACEBOOK, INC.,

10
11

Defendants.
___________________________/

12

**HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY**

13

**CONTAINS SOURCE CODE**

14
15

VIDEOTAPED 30(b)(6) DEPOSITION OF

16

RAY HE

17

Wednesday, October 28, 2015

18
19
20
21

Reported by:

22

COREY W. ANDERSON

23

CSR No. 4096

24

Job No. SF 2173701B

25

PAGES 1 - 114
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APP. 1460

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2
3

Q.

6

Can you please point us to the

source code that performs that functionality?
A.

9

16:13:29

A.

Yes.

16:13:32
16:13:32

So at a high level, the code I have loaded

16:14:08

here will

the

16:14:11

That

7
8

16:13:26

(Pause)

4
5

Okay.

16:14:20

would be line 54.
Q.

16:14:24

And is this the source code that says

16:14:39

10

16:14:42

11

16:14:50

12

A.

Yes.

16:14:51

13

Q.

A few lines below that there is code that

16:14:57

14

?

16:14:59

15

A.

Yes.

16:15:01

16

Q.

What function does that code perform?

16:15:04

17

A.

16:15:09

18

16:15:14

19

16:15:17

20

16:15:20

21

16:15:23

22
23
24

Q.

What is a

in the context of the

answer you just gave?
A.

16:15:36
16:15:38

A

16:15:44

25

16:15:53
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APP. 1461

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

.

2

Q.

16:16:00

What did you mean by

16:16:17

3

16:16:18

4
5

?

What does

16:16:22

that mean?

6

A.

16:16:25
So for instance, you have -- let's say you

16:16:26

7

share something, say I can see this, but Josh can't,

16:16:32

8

it's a photo.

16:16:39

9

it.

You have made it so only I can see

16:16:42

10

Now, if I share it,

16:16:43

11

16:16:47

12

16:16:51

13

.

14

Q.

In section 1 (b) the response states "

15
16

16:17:23
16:17:28

"

16:17:30

17

Do you see that?

18

A.

19

16:17:32

Yes.

16:17:32

Q.

16:17:34

20
21

16:16:55

?
A.

16:17:36
16:17:41

22

16:17:44

23

16:17:47

24

Q.

Does this code

16:17:56

25

16:18:01
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APP. 1462

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

A.

2

on the left.

3

Q.

4

So at the -- at a high level it's the code

17:55:23

Okay.

And this is -- which file is this

again?
A.

This is

6

Q.

Okay.

8

17:55:24
17:55:28

5

7

17:55:21

17:55:28
And what lines are you referring

to?

17:55:33
17:55:35

A.

17:55:38

9

17:55:43

10

17:55:51

11

17:55:56

12

Q.

In the context of

13

17:56:26

14
15

17:56:18

?

17:56:29

A.

17:56:40

16

17:56:43

17

17:56:48

18

17:56:58

19
20

.
Q.

Can you point to the code that

21
?
A.

17:57:13

A.

Yes.

17:57:15

(Pause)

24
25

17:57:06
17:57:08

22
23

17:57:02

17:57:24

So the code I have on the left is code

18:00:30
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APP. 1463

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

couple of questions talking about

2

19:11:58

.

19:12:00

3

MR. RUDOLPH:

Yes.

19:12:03

4

THE WITNESS:

Just want to paint a picture

19:12:04

5

of what actually changed.

19:12:05

6

19:12:07

7

19:12:12

8

,

19:12:16

9

19:12:24

10

19:12:26

11

19:12:31

12

BY MR. RUDOLPH:

19:12:38
19:12:39

13

Q.

Okay.

Is there anything else?

14

A.

That was it.

15

Q.

If you can go back to

16

A.

Yes.

17

Q.

19:12:41
please?

19:12:44
19:12:51
19:13:03

18

19:13:05

19

Do you see that?

19:13:07

20

A.

Yes.

19:13:07

21

Q.

And you, we discussed that

19:13:08

22

19:13:10

23

19:13:13

24

A.

Yes.

19:13:18

25

Q.

Okay.

19:13:18
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APP. 1464

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I, the undersigned, a Certified Shorthand

2

Reporter of the State of California, do hereby

3

certify:

4

That the foregoing proceedings were taken

5

before me at the time and place herein set forth;

6

that any witnesses in the foregoing proceedings,

7

prior to testifying, were administered an oath; that

8

a record of the proceedings was made by me using

9

machine shorthand which was thereafter transcribed

10

under my direction; that the foregoing transcript is

11

a true record of the testimony given.

12

Further, that if the foregoing pertains to

13

the original transcript of a deposition in a Federal

14

Case, before completion of the proceedings, review

15

of the transcript was not requested.

16

I further certify I am neither financially

17

interested in the action nor a relative or employee

18

of any attorney or any party to this action.

19

IN WITNESS WHEREOF, I have this date

20

subscribed my name.

21

Dated:

10/30/2015

22
23

<%signature%>

24

COREY W. ANDERSON

25

CSR No. 4096
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APP. 1465

APP. 1466

APP. 1467

APP. 1468

APP. 1469

APP. 1470

APP. 1471

APP. 1472

APP. 1473

APP. 1474

APP. 1475

APP. 1476

APP. 1477

APP. 1478

APP. 1479

APP. 1480

APP. 1481

APP. 1482

APP. 1483

APP. 1484

APP. 1485

APP. 1486

APP. 1487

APP. 1488

App. 1489-1494
Filed Under Seal

APP. 1495

App. 1496-1507
Filed Under Seal

1
2
3
4
5
6
7
8
9
10
11
12

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.

13
14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISON

17

MATTHEW CAMPBELL and MICHAEL
HURLEY,

18

Case No. C 13-05996 PJH (MEJ)
PUTATIVE CLASS ACTION

Plaintiffs,
19

DECLARATION OF ALEX HIMEL IN
SUPPORT OF DEFENDANT FACEBOOK,
INC.’S OPPOSITION TO PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION

v.
20
FACEBOOK, INC.,
21
Defendant.
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1508

Table of Contents

1
2

I.

3

II.

............................................................................................................................ 3
A.

5

Overview ....................................................................................................................... 3

B.

4

6

Identifying Proposed Class Members ....................................................................................... 1

and Messages ............................................... 4

C.
III.

Variability in Connection with

.............................................................. 6

................................................................................................... 8

7

A.

Overview ....................................................................................................................... 8

8

B.

Variability in Connection with

9

IV.

Plugin Count ........................................................................................................................... 10
A.

Plugin Count and Messages ........................................................................................ 11

C.

11

Overview ..................................................................................................................... 10

B.

10

12

..................................... 9

Variability in Connection with Plugin Count ............................................................. 12

V.

13

........................................................................................................................... 13
A.

Overview ..................................................................................................................... 13

14

B.

and Messages........................................................................................ 14

15

C.

16

VI.

............................................................. 14

...................................................................................................................................... 15
A.

18

Overview ..................................................................................................................... 15

B.

17

19

Variability in Connection with

for Messages ..................................................................... 16

C.
VII.

20

Variability in Connection with

........................................................................ 16

Insights and Related APIs ....................................................................................................... 17
A.

Overview ..................................................................................................................... 17

21

B.

Insights and Related APIs and Messages .................................................................... 18

22

C.

Variability in Connection with Insights and Related APIs ......................................... 18

23
24
25
26

VIII.

and Graph API................................................................................................... 19
A.

Overview ..................................................................................................................... 19

B.

and Graph API and Messages ............................................................... 20

C.

Variability in Connection with

& Graph API ....................................... 21

27
28
Gibson, Dunn &
Crutcher LLP

i
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1509

1

I, Alex Himel, declare as follows:
1.

2

I have been employed as a software engineer at Facebook since April 2009, and my

3

current title is Engineering Director. I am over the age of 18. From 2009-2014, I worked on

4

Facebook’s Developer Platform, and my work encompassed Facebook’s Social Plugins and Insights

5

features. I have personal knowledge of the matters stated herein and, if called as a witness, could and

6

would testify competently thereto.
2.

7
8

I provide this Declaration in support of Facebook’s Opposition to Plaintiffs’ Motion

for Class Certification, and to explain certain facts regarding

9
Insights (including the user interface (“UI”), application program interface (“API”), and

10
11

dashboard, also referred to below as “Insights and Related APIs”), and other public APIs including
and Graph API. This Declaration also describes certain Facebook services related to

12
13

these functions, particularly as they relate to uniform resource locators (“URLs”) in messages sent

14

and received through the Facebook platform.
3.

15
16

I also understand that, on November 13, 2015, Plaintiffs filed a Motion seeking to

certify the following proposed class:
All natural-person Facebook users located within the United States who have sent, or
received from a Facebook user, private messages that included URLs in their content
(and from which Facebook generated a URL attachment), from within two years before
the filing of this action up through the date of the certification of the class.

17
18
19
20

I understand that Plaintiffs filed their action on December 30, 2013, and that therefore the relevant

21

period for Plaintiffs’ new purported class is December 30, 2011 to the present (the “Class Period”).

22
23
24

I.

Identifying Proposed Class Members
4.

To my knowledge, neither Facebook nor any other entity possesses the data that would

be required to identify all persons meeting Plaintiffs’ class definition. Facebook does not

25
. For example, people who included a URL in their

26
27
28
Gibson, Dunn &
Crutcher LLP

message,
1
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1510

1
2
3
4

putative class members.
5.

Additionally, as discussed below, determining whether any given person was

5

subjected to the challenged practices would require a message-by-message inquiry. To my

6

knowledge, neither Facebook nor any other entity possesses the data that would be required to

7

determine whether any given person meeting this criteria was subjected to all the challenged

8

practices.

9

6.

In her report, Dr. Golbeck says that “to retrieve a list of class members, the Code

10

process should be relatively straightforward,” and that “a database query could be used to select the

11

Facebook user IDs of everyone whose actions had

12

(Golbeck Report ¶ 103.) In the next two paragraphs of her report, she provides “sample” code that

13

she contends would return a list of “Facebook user IDs of everyone

14
15
16
17

a private message.”

and, in her deposition, she said that such a list would identify the
class members. (Golbeck Deposition Transcript at 331:2-8.)
7.

That is incorrect. This query would return a list of users that is both under- and over-

inclusive of the proposed class. For example, a

18

. Therefore a

19

recipient class members. Also, Dr. Golbeck uses the

20
21
22

. Thus, this

23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

.
8.

In addition, Facebook’s systems

in other words,
. Instead, in order to accommodate her query, Facebook
2
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1511

1
2
3
4
5
6

.

7

9.

Further, the results of this query will

8
9
10
11

.
II.

12

A.

Overview

13

10.

All information that users share through the Facebook platform, including messages

14

and all other information, is received by Facebook and stored on Facebook servers. Facebook must

15

receive and host all information shared on the site in order to provide its social-networking service.

16

Facebook also anonymizes and aggregates certain data in order to help facilitate users’ discovery of

17

potentially relevant and interesting information on the web at large. For example, Facebook offers a

18

“Like” button social plugin, which has been integrated into websites all over the world; if a user

19

clicks on the “Like” button, Facebook displays a “story” of that action on the users’ Timeline, and

20

Facebook keeps a count of the number of times that webpage has been “Liked” and provides some of

21

that data publicly in the aggregate.

22

11.

Another way that users interact with webpages is by “sharing” the URL to that

23

webpage, for example by copying and pasting the URL into a post or a message. Under certain

24

circumstances
As explained in

25
26

Facebook’s Second Supplemental Responses and Objections to Plaintiffs’ Narrowed Interrogatory

27

No. 8, attached as Exhibit MM, Facebook stores

28
Gibson, Dunn &
Crutcher LLP

3
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1512

1

“objects.” Generally, in computer science, “object” refers to data and software code grouped together

2

to make the process of writing and running source code efficient and effective. The concept of an

3

“object” is a basic element of what is widely referred to as “object-oriented code.” When certain

4

types of data are configured into a limited number of classes in this way, the code that actually

5

processes that data can be written more efficiently, which can improve speed and reduce errors.

6

Facebook’s “objects” group together data in order to make the operation of its software more

7

efficient.

8

12.

Facebook’s

9
10
11

There is nothing unusual or nefarious about the use of “objects”—which are merely a name for a

12

certain way of storing data—in software programming.

13

B.

14

13.

and Messages
As explained in Facebook’s Supplemental Responses and Objections to Plaintiffs’

15

First Set of Interrogatories (attached as Exhibit NN), during the relevant period in this case, if a user

16

typed a URL into the text field in the Facebook Messages product,

17
18
19
20
21
22
23
24

14.

Or,

25
26
When Facebook

27
28
Gibson, Dunn &
Crutcher LLP

4
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1513

1
2
3
4
5
6
7
8
9
10
11
12

15.

Where available, URL previews

16.

If

13
14
15
16
17
18
19
20
21
22
23
24
1

In Facebook’s storage system,

2

In Facebook’s storage system,

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Gibson, Dunn &
Crutcher LLP

5
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1514

1
2
3
4
5
6

17.

Another way to share a URL in a Facebook message was to click on the “Share”

7

button on a third-party website, and choose (from the options presented to the user) to share the URL

8

for that page in a Facebook message.

9
10
11

possible),
generally with the URL for the page on which the “Share” button was displayed.
18.

12
13
14
15
16
17
18
19
20

.
19.

21
22

.

23

C.

24

20.

Variability in Connection with

25
26
27
28
Gibson, Dunn &
Crutcher LLP

6
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1515

1
2
3
4
5
6
7
8
9
10

.
21.

Additionally,

22.

Taking all of this variation together, at a minimum, determining whether a user’s

11
12
13
14
15
16

inclusion of a URL in a Facebook message

17
18
19
20
21
22
23
24
25
26
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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1516

1
2
3

III.

4

A.

5

23.

Overview

6
7
8
9

24.

10
11
12
13
14
15
16
17
18

25.

19
20
21
22
23
24
25
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27
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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1517

1
2
3
4

26.

5
6

B.

Variability in Connection with

7

27.

For people using Facebook who sent a message with a URL

28.

Additionally,

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

3

Facebook’s system comprises tens of millions of lines of code,
1.5 billion people, and handling over
requests each day.

27
28
Gibson, Dunn &
Crutcher LLP

9
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1518

1
2
3

29.

Taking all of this variation together, at a minimum, determining whether

4
5
6

individualized inquiries for each
message:

7

a.

When was the message sent?

8
9
10
11
12
13
14

30.

15
16
17

for putative class members.
IV.

Plugin Count

18

A.

Overview

19

31.

During the proposed Class Period, Facebook offered websites “social plugins,” or

20

units of embeddable code that allow people to share information using Facebook directly from third-

21

party websites. For example, a third-party website may embed code for the Facebook “Like” button

22

plugin on its website, enabling people using Facebook to directly “Like” the website and to share that

23

action with their Facebook connections (without having to return to https://www.facebook.com or the

24

Facebook mobile app to share the content).

25

32.

The “Like” button plugin also may display an anonymous and aggregate count of all

26

“Likes” for that particular website. At different times, this aggregate count next to the plugin

27

(“Plugin Count”) may have included URLs (a) shared (in the NewsFeed), (b) commented on,

28
Gibson, Dunn &
Crutcher LLP

10
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1519

1

(c) liked, and (d) sent as an attachment to a message (and recorded as a share object). Or, depending

2

on how it was configured by the site owner, it may have displayed the number of “fans” for that page.

3

33.

Instructions for how to embed the “Like” button and Plugin Count into a website, and

4

an explanation of the components of the Plugin Count, were disclosed publicly in Facebook’s

5

developer guidance—one of the primary locations where Facebook explains the functionality of its

6

service to the public. For a period beginning at least as early as March 7, 2011, the developer

7

guidance included a section entitled “What makes up the number shown on my Like button?” and

8

explains that the number is “the sum of:

9

•

The number of likes of this URL

10

•

The number of shares of this URL (this includes copy/pasting a link back to Facebook

11

•

The number of likes and comments on stories on Facebook about this URL [and]

12

•

The number of inbox messages containing this URL as an attachment.”

13

B.

Plugin Count and Messages

14

34.

From the beginning of the Class Period until December 19, 2012,

35.

During that time period,

36.

I understand that Plaintiffs’ expert, Dr. Jennifer Golbeck, has suggested that by

15
16
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18
19
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21
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Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1520

1
2
3
4

There is nothing unusual or

5

nefarious about Facebook taking note of its users’ experiences and preferences and the reaction of the

6

press. Facebook is sensitive to users’ feedback and regularly incorporates that feedback into its

7

design and engineering decisions.

8

C.

Variability in Connection with Plugin Count

9

37.

On December 19, 2012,

38.

As noted above, if a person using Facebook

39.

Similarly, if the destination website associated with the URL did not display a

10
11
12
13
14
15
16
17
18
19
20
21

Facebook Plugin Count,

22
23
24
25

40.

Additionally, in some cases, even if

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Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1521

1
2
3

41.

4
5
6
7

42.

8

a message

At a minimum, determining whether a putative class member’s inclusion of a URL in

9
10

a.

11

b.

When was the message sent?

12
13
14
15
16
17
18
19

43.

20
21
22

for putative class members.
V.

23

A.

Overview

24

44.

For a period of time, prior to the Class Period,

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26
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Gibson, Dunn &
Crutcher LLP

4

This is not the same as the

discussed in my June 1, 2015 declaration.
13

DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1522

1

among other things, Facebook’s Recommendations social plugin, which I understand is addressed in

2

the Declaration of Dan Fechete being submitted in support of Facebook’s Opposition to Certification.

3
4
5
6
7
8
9

.

10

B.

11

45.

and Messages
If a person sent a Facebook message,

12
13
14
15
16
17
.

18
19

C.

Variability in Connection with

20

46.

For people who sent a message

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25

47.

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1523

1

48.

Additionally, if a message was sent

49.

Taking all of this variation together, at a minimum, determining whether a Facebook

2
3
4

user’s inclusion of a URL in a message

5
6

a.

7

b.

When was the message sent?

8
9
10
11

50.

12
13
14

for putative class members.
VI.

15

A.

16

51.

Overview

17
18
19
20
21
22
23
24
25

52.

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1524

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2
3
4
5
6
7
8
9

B.

10

53.

for Messages

11
12
13
14
15
16
17

C.

Variability in Connection with

18

55.

Because

19
20
.

21
22
23

56.

At a minimum, determining whether a Facebook user’s inclusion of a URL in a

message

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28
Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1525

1
2
3
4
5
6
7
8
9

57.

10
11
12

for putative class members.
VII.

Insights and Related APIs

13

A.

Overview

14

58.

“Insights” is the name of a Facebook user interface (UI), accessible from a Facebook

15

website, and a related Facebook application program interface (API). Facebook Insights and Related

16

API provide the owners of particular websites (also known as URL “domain owners”) with data

17

about interaction with and traffic to their websites. In order to access this information, a domain

18

owner must provide authentication demonstrating that he or she does indeed own that particular

19

website (URL domain) or webpage (URL). After authentication, the domain owner can use the

20

Insights dashboard or APIs to obtain statistics and demographics about the domains/URLs they own.

21

Specifically, Insights provides information about how effectively Facebook is generating traffic to

22

their site and demographic information about the users who make up that traffic. It also included

23

aggregate, anonymous statistics and aggregate, anonymous demographic information about the

24

people who share links to that domain owners’ sites across the Facebook platform.

25

59.

In 2011, Facebook created a new specialized Insights architecture designed to reflect

26

data about activity as quickly as possible after that activity occurred (“Real Time Analytics”). The

27

data store of activity to support the new Insights feature is completely separate from the other stores

28
Gibson, Dunn &
Crutcher LLP

17
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1526

1

discussed above; the Insights system

2
3

B.

Insights and Related APIs and Messages

4

60.

When the Insights product was announced in April 2010,

61.

However, on October 11, 2012,

16

C.

Variability in Connection with Insights and Related APIs

17

62.

As stated above,

63.

Further,

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15

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1527

1
2
3
4
5
6
7
8
9
10

64.

At a minimum, determining whether a person’s inclusion of a URL in a message was

11
12
13

a.

When was the message sent?

14
15
16
17
18
19

65.

20
21

for putative class members.

22 VIII.

Graph API

23

A.

Overview

24

66.

The original

25

I introduced in my June 1 Declaration (attached

hereto as Exhibit OO) was renamed to be called the

. Facebook

26
27
28
Gibson, Dunn &
Crutcher LLP

19
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1528

1
2
3
4
5
6

67.

Graph API is an API that allows third-party apps to read and write to Facebook’s

7

“social graph”—a general name for a store of data about users and their activity that Facebook has

8

made available to developers in certain ways to facilitate the creation of products and features that

9

interact with the Facebook platform in both directions. Developers and their users can learn about

10

other users’ engagement with different information and contribute their own data to that effort, and

11

build products that incorporate that information in useful ways. Developers can use the Graph API

12

to, for instance, query data, post stories, upload photos, and perform other similar activities.

13

68.

During the proposed Class Period, the

Graph APIs

14
15

Graph API only

16
17
18

B.

19

69.

Graph API and Messages
For a limited period of time between August 2010 and October 2012

20
21
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Gibson, Dunn &
Crutcher LLP

the Graph API.
20
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1529

1

70.

2

or Graph API,

3
4
5

during certain periods of time.

6

71.

7

Facebook
Graph API after October 16, 2012.

8

72.

I also understand that Plaintiffs

9
10
11
12
13
14
15
16
17
18
19
20
21

as
Plaintiffs allege without apparent support.

22

C.

23

73.

Variability in Connection with

& Graph API

Graph API queries would have reflected

24
25

5

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27
28
Gibson, Dunn &
Crutcher LLP

21
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1530

1

Accordingly, as stated above and in my Declaration dated June 1, 2015, until August 2010,

2
3
4

Graph API query.
74.

Similarly, after October 16, 2012,

5
6

Graph API query.
75.

Accordingly,

7
8
9

Graph API query.

10
11
12

between December 2011 and October 16, 2012 could have been subject to these
practices during the Class Period.
76.

Further,

13
14
15

Graph API query.

16
17
18
19
20

77.

21

Graph API for any given URL

22
23

78.

At a minimum, determining whether

24
25

Graph API queries would require the
following individualized inquiries for each message:

26

a.

27

b.

28
Gibson, Dunn &
Crutcher LLP

When was the message sent?

22
DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1531

1
2
3
4

79.

5
6

putative class members.

7
8
9
10

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct and that this declaration was executed on January 14, 2016, in Menlo
Park, California.

11

/s/ Alex Himel
Alex Himel

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13
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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1532

ATTORNEY ATTESTATION

1

I, Christopher Chorba, attest that concurrence in the filing of this Declaration of Alex Himel
2
has been obtained from the signatory. I declare under penalty of perjury under the laws of the United
3
States of America that the foregoing is true and correct. Executed this 15th day of January, 2016, in
4
Los Angeles, California.
5
6

Dated: January 15, 2016

/s/ Christopher Chorba
Christopher Chorba

7
8
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10
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Crutcher LLP

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DECLARATION OF ALEX HIMEL IN SUPPORT OF OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Case No. C 13-05996 PJH (MEJ)

APP. 1533

EXHIBIT MM

APP. 1534

1
2
3
4
5
6
7
8
9
10
11
12

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]

13
14

Attorneys for Defendant
FACEBOOK, INC.

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

18
19

MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,

PUTATIVE CLASS ACTION
Plaintiffs,

20
21
22
23

Case No. C 13-05996 PJH (MEJ)

DEFENDANT FACEBOOK, INC.’S
SECOND SUPPLEMENTAL RESPONSES
AND OBJECTIONS TO PLAINTIFFS’
NARROWED SECOND SET OF
INTERROGATORIES

v.
FACEBOOK, INC.,
Defendant.

24
25
26
27

HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
SUBJECT TO PROTECTIVE ORDER

28
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1535

1

Defendant Facebook, Inc. (“Defendant” or “Facebook”), by and through its attorneys, and

2

pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S.

3

District Court for the Northern District of California, the Court orders in this action, and the parties’

4

agreements, provides the following second supplemental responses and objections to Plaintiffs’

5

Narrowed Second Set of Interrogatories (the “Interrogatories”).

6
7

PRELIMINARY STATEMENT
1.

Facebook’s responses to the Interrogatories are made to the best of Facebook’s current

8

knowledge, information, and belief. Facebook reserves the right to supplement or amend any of its

9

responses should future investigation indicate that such supplementation or amendment is necessary.

10

2.

Facebook’s responses to the Interrogatories are made solely for the purpose of and in

11

relation to this action. Each response is given subject to all appropriate objections (including, but not

12

limited to, objections concerning privilege, competency, relevancy, materiality, propriety, and

13

admissibility). All objections are reserved and may be interposed at any time.

14
15
16

3.

Facebook’s responses are premised on its understanding that Plaintiffs seek only that

information that is within Facebook’s possession, custody, and control.
4.

Facebook incorporates by reference each and every general objection set forth below

17

into each and every specific response. From time to time, a specific response may repeat a general

18

objection for emphasis or some other reason. The failure to include any general objection in any

19

specific response shall not be interpreted as a waiver of any general objection to that response.

20

5.

Nothing contained in these Reponses and Objections or provided in response to the

21

Interrogatories consists of, or should be construed as, an admission relating to the accuracy,

22

relevance, existence, or nonexistence of any alleged facts or information referenced in any

23

Interrogatory.

24
25

GENERAL OBJECTIONS
1.

Facebook objects to each Interrogatory, including the Definitions and Instructions, to

26

the extent that it purports to impose obligations beyond those imposed by the Federal Rules of Civil

27

Procedure, the Federal Rules of Evidence, the Local Civil Rules of the U.S. District Court for the

28

Northern District of California, and any agreements between the parties.
1

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1536

1

2.

Facebook objects to each Interrogatory to the extent that it is not limited to the

2

relevant time period, thus making the Interrogatory overly broad, unduly burdensome, and not

3

relevant to the claims or defenses in this action. Unless otherwise specified in its responses, and

4

pursuant to the agreement of the parties, Facebook’s responses will be limited to information

5

generated between April 1, 2010 and December 30, 2013.

6

3.

Facebook objects to each Interrogatory to the extent that it seeks information unrelated

7

and irrelevant to the claims or defenses in this litigation and not reasonably calculated to lead to the

8

discovery of admissible evidence.

9

4.

Facebook objects to each Interrogatory as overly broad and unduly burdensome,

10

particularly in view of Facebook’s disproportionate cost necessary to investigate as weighed against

11

Plaintiffs’ need for the information. The Interrogatories seek broad and vaguely defined categories of

12

materials that are not reasonably tailored to the subject matter of this action.

13

5.

Facebook objects to each Interrogatory to the extent that it purports to request the

14

identification and disclosure of information or documents that were prepared in anticipation of

15

litigation, constitute attorney work product, reveal privileged attorney-client communications, or are

16

otherwise protected from disclosure under any applicable privileges, laws, or rules. Facebook hereby

17

asserts all such applicable privileges and protections, and excludes privileged and protected

18

information from its responses to each Interrogatory. See generally Fed. R. Evid. 502; Cal. Code

19

Evid. § 954. Inadvertent production of any information or documents that are privileged or otherwise

20

immune from discovery shall not constitute a waiver of any privilege or of any other ground for

21

objecting to the discovery with respect to such information or documents or the subject matter

22

thereof, or the right of Facebook to object to the use of any such information or documents or the

23

subject matter thereof during these or any other proceedings. In the event of inadvertent disclosure

24

of any information or inadvertent production or identification of documents or communications that

25

are privileged or otherwise immune from discovery, Plaintiffs will return the information and

26

documents to Facebook and will be precluded from disclosing or relying upon such information or

27

documents in any way.

28
Gibson, Dunn &
Crutcher LLP

6.

Facebook objects to each and every Interrogatory to the extent that the information
2

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1537

1

sought by the Interrogatory is more appropriately pursued through another means of discovery, such

2

as a request for production or deposition.

3
4
5

7.

Facebook objects to each and every Interrogatory, Definition, and Instruction to the

extent that it seeks information outside of Facebook’s possession, custody, and control.
8.

Facebook objects to each Interrogatory to the extent that it requests information

6

protected by the right of privacy of Facebook and/or third parties, or information that is confidential,

7

proprietary, or competitively sensitive.

8
9
10
11

9.

Facebook objects to each Interrogatory to the extent that it seeks documents or

information already in Plaintiffs’ possession or available in the public domain. Such information is
equally available to Plaintiffs.
10.

Facebook objects to each Interrogatory on the ground and to the extent that it exceeds

12

the bounds of Federal Rule of Civil Procedure 33(a)(1), which provides that “a party may serve on

13

any other party no more than 25 written interrogatories, including all discrete subparts.”

14
15

OBJECTIONS TO DEFINITIONS
1.

Facebook objects to Plaintiffs’ definition of “Association” to the extent that it is

16

vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition

17

to the extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to

18

the claims and defenses in this action.

19

2.

Facebook objects to Plaintiffs’ definition of “Association Type” or “(atype)” to the

20

extent that it is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects

21

to the definition to the extent that Plaintiffs purport to use this defined term to seek materials that are

22

not relevant to the claims and defenses in this action.

23

3.

Facebook generally objects to Plaintiffs’ definitions of “Communication,”

24

“Document(s),” “Electronic Media,” “ESI,” “Electronically Stored Information,” “Identify,” and

25

“Metadata” to the extent that Plaintiffs purport to use these defined terms to request the identification

26

and disclosure of documents that: (a) were prepared in anticipation of litigation; (b) constitute

27

attorney work product; (c) reveal privileged attorney-client communications; or (d) are otherwise

28

protected from disclosure under any applicable privileges, laws, and/or rules. Facebook further
3

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1538

1

objects to the extent that these definitions purport to impose obligations that go beyond the

2

requirements of the Federal and Local Rules.

3

4.

Facebook objects to Plaintiffs’ definition of “Destination Object” or “(id2)” to the

4

extent that it is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects

5

to the definition to the extent that Plaintiffs purport to use this defined term to seek materials that are

6

not relevant to the claims and defenses in this action.

7

5.

Facebook objects to Plaintiffs’ definition of “(id)” to the extent that it is vague,

8

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the

9

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

10
11

claims and defenses in this action.
6.

Facebook objects to Plaintiffs’ definition of “Key -> Value Pair” to the extent that it is

12

vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition

13

to the extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to

14

the claims and defenses in this action.

15

7.

Facebook objects to Plaintiffs’ definition of “Object” to the extent that it is vague,

16

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the

17

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

18

claims and defenses in this action.

19

8.

Facebook objects to Plaintiffs’ definition of “Object type” or “(otype)” to the extent

20

that it is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the

21

definition to the extent that Plaintiffs purport to use this defined term to seek materials that are not

22

relevant to the claims and defenses in this action.

23

9.

Facebook objects to Plaintiffs’ definition and use of the term “Person” as vague,

24

ambiguous, overly broad, and unduly burdensome to the extent that Plaintiffs intend to use this term

25

to include “any natural person or any business, legal or governmental entity or association” over

26

which Facebook exercises no control.

27
28
Gibson, Dunn &
Crutcher LLP

10.

Facebook objects to Plaintiffs’ definition of “Process” to the extent that it is vague,

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the
4
DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1539

1

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

2

claims and defenses in this action.

3

11.

Facebook objects to Plaintiffs’ definition of “Private Message(s)” to the extent that it

4

is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the

5

definition to the extent that Plaintiffs purport to use this defined term to seek materials that are not

6

relevant to the claims and defenses in this action.

7

12.

Facebook objects to Plaintiffs’ definitions of “Relate(s) to,” “Related to” and

8

“Relating to” on the ground that the definitions make the Interrogatories overly broad and unduly

9

burdensome and impose obligations that go beyond the requirements of the Federal and Local Rules.

10
11

Facebook shall construe these terms as commonly and ordinarily understood.
13.

Facebook objects to Plaintiffs’ definition of “Source Object” or “(id1)” to the extent

12

that it is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the

13

definition to the extent that Plaintiffs purport to use this defined term to seek materials that are not

14

relevant to the claims and defenses in this action.

15

14.

Facebook objects to Plaintiffs’ definition and use of the terms “You,” “Your,” or

16

“Facebook” as vague, ambiguous, overly broad, and unduly burdensome to the extent the terms are

17

meant to include “directors, officers, employees, partners, members, representatives, agents

18

(including attorneys, accountants, consultants, investment advisors or bankers), and any other person

19

purporting to act on [Facebook, Inc.’s] behalf. . . . parents, subsidiaries, affiliates, predecessor

20

entities, successor entities, divisions, departments, groups, acquired entities and/or related entities or

21

any other entity acting or purporting to act on its behalf” over which Facebook exercises no control,

22

and to the extent that Plaintiffs purport to use these terms to impose obligations that go beyond the

23

requirements of the Federal and Local Rules.

24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

OBJECTIONS TO “RULES OF CONSTRUCTION” AND INSTRUCTIONS
1.

Facebook objects to Plaintiffs’ “Rules of Construction” and “Instructions” to the

extent they impose obligations that go beyond the requirements of the Federal and Local Rules.
2.

Facebook objects to Plaintiffs’ Instruction No. 2 to the extent that it is not limited to

the relevant time period, thus making the Instruction overly broad, unduly burdensome, and not
5
DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1540

1

relevant to the claims or defenses in this action. Unless otherwise specified in its responses, and

2

pursuant to the agreement of the parties, Facebook’s response will be limited to information

3

generated between April 1, 2010 and December 30, 2013.

4

3.

Facebook objects to Plaintiffs’ Instruction No. 6 as ambiguous and unduly

5

burdensome. Facebook further objects to the instruction to the extent it exceeds the requirements of

6

the Federal and Local Rules.

7

OBJECTION TO PURPORTED “RELEVANT TIME PERIOD”

8

Facebook objects to Plaintiffs’ proposed “Relevant Time Period” (September 26, 2006

9

through the present) because it substantially exceeds the proposed class period identified in Plaintiffs’

10

Consolidated Amended Complaint, does not reflect the time period that is relevant to Plaintiffs’

11

claims in this action, and renders the Interrogatories overly broad, unduly burdensome, and irrelevant.

12

Unless otherwise specified, and pursuant to the agreement of the parties, Facebook’s Responses to

13

these Interrogatories will be limited to information generated between April 1, 2010 and December

14

30, 2013. Facebook otherwise objects to the remainder of Plaintiffs’ statement regarding the

15

“Relevant Time Period” to the extent that it purports to impose obligations beyond those imposed by

16

the Federal and Local Rules.

17
18

SPECIFIC RESPONSES AND OBJECTIONS
INTERROGATORY NO. 8:

19
20

Identify all facts relating to the Processing of each Private Message sent or received by
Plaintiffs containing a URL1, including, for each Private Message:

21

(A)

all Objects that were created during the Processing of the Private Message, including

22

the (id) and the Object Type for each Object, as well as any Key -> Value Pair(s)

23

contained in each Object;

24
25
26
27

1

Each such Private Message has been identified by each Plaintiff in Exhibit 1 to his respective Objections and
Responses to Defendant’s First Set of Interrogatories.

28
6
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1541

1

(B)

all Objects that were created specifically when the embedded URL was shared,

2

including the (id) and the Object Type for each Object, as well as any Key -> Value

3

Pair(s) contained in each Object;

4

(C)

all Associations related to each Private Message, identified by the Source Object,

5

Association Type, and Destination Object, as well as any Key -> Value Pair(s)

6

contained in each Association;

7

(D)

the database names and table names in which each Association and Object is stored;

8

(E)

each application or feature in Facebook that uses the Objects or Associations created

9
10
11
12

for each Private Message; and
(F)

how each Object associated with the Private Message was used by Facebook.

RESPONSE TO INTERROGATORY NO. 8:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

13

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

14

forth in this Response. Facebook further objects to this Interrogatory on the following additional

15

grounds:

16

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases

17

“Processing”; “Private Message”; “Objects”; “(id)”; “Object Type”; “Key -> Value Pair(s)”; “Objects

18

that were created specifically when the embedded URL was shared”; “Associations”; “Source

19

Object”; “Association Type”; “Destination Object”; “database names and table names”; and

20

“application or feature.”

21

(B)

The Interrogatory is compound.

22

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

23

this action to the extent it concerns practices other than those challenged in this action (the alleged

24

increase in the Facebook “Like” count on a website when the URL for that website was contained in

25

a message transmitted through Facebook’s Messages product during the class period).

26

(D)

The Interrogatory is vague, unduly burdensome, and overly broad in that it purports to

27

seek “all facts relating to the Processing of each Private Message sent or received by Plaintiffs

28

containing a URL.”
7

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1542

1
2
3

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
(F)

The Interrogatory exceeds the bounds of Federal Rule of Civil Procedure 33(a)(1),

4

which provides that “a party may serve on any other party no more than 25 written interrogatories,

5

including all discrete subparts.”

6
7

Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

8

Facebook refers Plaintiffs to Facebook’s Responses and Objections to Plaintiffs’ Interrogatory

9

Nos. 2, 3, and 4. Facebook also will meet and confer with Plaintiffs’ counsel to determine the proper

10

scope of this overly broad and ambiguous Interrogatory.

11

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 8:

12

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

13

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

14

forth in this Response. Facebook further objects to this Interrogatory on the following additional

15

grounds:

16

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases

17

“Processing”; “Private Message”; “Objects”; “(id)”; “Object Type”; “Key -> Value Pair(s)”; “Objects

18

that were created specifically when the embedded URL was shared”; “Associations”; “Source

19

Object”; “Association Type”; “Destination Object”; “database names and table names”; and

20

“application or feature.”

21

(B)

The Interrogatory is compound.

22

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

23

this action to the extent it concerns practices other than those challenged in this action (the alleged

24

increase in the Facebook “Like” count on a website when the URL for that website was contained in

25

a message transmitted through Facebook’s Messages product during the class period).

26

(D)

The Interrogatory is vague, unduly burdensome, and overly broad in that it purports to

27

seek “all facts relating to the Processing of each Private Message sent or received by Plaintiffs

28

containing a URL.”
8

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1543

1
2
3

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
(F)

The Interrogatory exceeds the bounds of Federal Rule of Civil Procedure 33(a)(1),

4

which provides that “a party may serve on any other party no more than 25 written interrogatories,

5

including all discrete subparts.”

6
7
8
9

Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:
Facebook refers Plaintiffs to Facebook’s Responses and Objections to Plaintiffs’ Interrogatory
Nos. 2, 3, and 4. Additionally, and pursuant to Rule 33(d) of the Federal Rules of Civil Procedure,

10

Facebook refers Plaintiffs to documents bearing production numbers FB000005502 through

11

FB000006175, which contain information responsive to this Interrogatory for the messages identified

12

in Plaintiffs’ letter of July 24, 2015 that could be located after a reasonable search and diligent

13

inquiry. The chart attached as Exhibit 1 identifies the production numbers of the documents that

14

correspond to the messages identified in Plaintiffs’ July 24, 2015 letter.

15

SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 8:

16

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

17

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

18

forth in this Response. Facebook further objects to this Interrogatory on the following additional

19

grounds:

20

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases

21

“Processing”; “Private Message”; “Objects”; “(id)”; “Object Type”; “Key -> Value Pair(s)”; “Objects

22

that were created specifically when the embedded URL was shared”; “Associations”; “Source

23

Object”; “Association Type”; “Destination Object”; “database names and table names”; and

24

“application or feature.”

25

(B)

The Interrogatory is compound.

26

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

27

this action to the extent it concerns practices other than those challenged in this action (the alleged

28
9
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1544

1

increase in the Facebook “Like” count on a website when the URL for that website was contained in

2

a message transmitted through Facebook’s Messages product during the class period).

3

(D)

The Interrogatory is vague, unduly burdensome, and overly broad in that it purports to

4

seek “all facts relating to the Processing of each Private Message sent or received by Plaintiffs

5

containing a URL.”

6

(E)

7
8
9
10
11
12
13

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
(F)

The Interrogatory exceeds the bounds of Federal Rule of Civil Procedure 33(a)(1),

which provides that “a party may serve on any other party no more than 25 written interrogatories,
including all discrete subparts.”
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:
Facebook has conducted a reasonable inquiry for all “Objects” (as defined by Plaintiffs,

14

explained further below) created at the time that Facebook received information resulting from the

15

drafting or sending of the 19 messages (the “Subject Messages”) identified by Plaintiffs in their letter

16

dated July 24, 2015 agreeing to narrow this Interrogatory. Below, Facebook identifies the responsive

17

Objects, as well as other objects (more broadly defined), identified in the course of its inquiry. As

18

will be explained further below, these objects were created after the URL or message information

19

was received by and stored on a Facebook server, either before the sender sent the Subject Message

20

or after it was sent to and received by Facebook.

21
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25
26
27
28
10
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1545

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3
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7
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11
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1546

1
2
3
4
5
6
7
8
9
10
11
12
13
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19
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2

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12
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1547

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2
3
4
5
6
7
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13
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1548

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2
3
4
5
6
7
8
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12
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14
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1549

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
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3

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15
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1550

1
2
3
4
5
6
7
8
9
10
11
12
13
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28
16
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1551

1
2
3
4
5
6
7
8
9
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17
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1552

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

DATED: October 28, 2015

GIBSON, DUNN & CRUTCHER LLP
By:

20
21

/s/ Joshua A. Jessen
Joshua A. Jessen

Attorneys for Defendant FACEBOOK, INC.

22
23
24
25
26
27
28
18
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1553

1
2
3
4
5
6
7
8
9
10
11
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20

PROOF OF SERVICE
I, Jeana Bisnar Maute, declare as follows:
I am employed in the County of Santa Clara, State of California, I am over the age of eighteen
years and am not a party to this action; my business address is 1881 Page Mill Road, Palo Alto, CA
94304-1211, in said County and State. On October 28, 2015, I served the following document(s):
DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES
AND OBJECTIONS TO PLAINTIFFS’ NARROWED SECOND SET OF
INTERROGATORIES
on the parties stated below, by the following means of service:
David F. Slade
[e-mail]
James Allen Carney
[e-mail]
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
[e-mail]
Melissa Ann Gardner
[e-mail]
Nicholas Diamand
[e-mail]
Rachel Geman
[e-mail]
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
[e-mail]
BY ELECTRONIC SERVICE: On the above-mentioned date, based on a court order or
an agreement of the parties to accept service by electronic transmission, I caused the
documents to be sent to the persons at the electronic notification addresses as shown
above.

21
22
23
24

I am employed in the office of Joshua A. Jessen and am a member of the bar of this court.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 28, 2015.

25
/s/ Jeana Bisnar Maute
Jeana Bisnar Maute

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27
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19
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)

APP. 1554

FB000006587
FB000006626

FB000006618
FB000006699

FB000006707
FB000006674
FB000006634
FB000006603
FB000006682

FB000006666
FB000006691
FB000006595
FB000006658
FB000006610
FB000006642
FB000006650

FB000005575
FB000005577
FB000005647
FB000005720
FB000005798
FB000005800
FB000005880
FB000011876
FB000005882
FB000005933
FB000006005
FB000006007
FB000006085
FB000012006
FB000006088
FB000006170
FB000012557
FB000006172
FB000006174

FB000005502

FB000005827
FB000012993
FB000005884
FB000005935

FB000005802
FB000013201

FB000005601
FB000005673
FB000005750

FB000012851
FB000012543

FB000013459
FB000012512

FB000006090

FB000006038

FB000006120

FB000006009

FB000005887
FB000005958

FB000005579
FB000005649
FB000005722

FB000005528

APP. 1555

EXHIBIT A TO DEFENDANT FACEBOOK, INC.’S SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ NARROWED SECOND SET OF INTERROGATORIES
Case No. C 13-05996 PJH (MEJ)
1

1
2
3
4
5
6
7
10
68
89
93
99
113
115
123
200
410
654
482

Message

EXHIBIT A

FB000013572

FB000012425
FB000011841

APP. 1556

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2
3
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7
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12

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]

13
14

Attorneys for Defendant
FACEBOOK, INC.

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

18
19

MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,

PUTATIVE CLASS ACTION
Plaintiffs,

20
21
22

DEFENDANT FACEBOOK, INC.’S
SUPPLEMENTAL RESPONSES AND
OBJECTIONS TO PLAINTIFFS’ FIRST
SET OF INTERROGATORIES

v.
FACEBOOK, INC.,

23

Case No. C 13-05996 PJH

Defendant.

24
25

HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY

26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1557

1

Defendant Facebook, Inc. (“Defendant” or “Facebook”), by and through its attorneys, and

2

pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S.

3

District Court for the Northern District of California, the Court orders in this action, and the parties’

4

agreements, provides the following supplemental responses and objections to Plaintiffs’ First Set of

5

Interrogatories (the “Interrogatories”).

6
7

These responses are designated Highly Confidential – Attorney’s Eyes Only under the
Amended Stipulated Protective Order entered by the Court on July 1, 2015.

8
9

PRELIMINARY STATEMENT
1.

Facebook’s responses to the Interrogatories are made to the best of Facebook’s current

10

knowledge, information and belief. Facebook reserves the right to supplement or amend any of its

11

responses should future investigation indicate that such supplementation or amendment is necessary.

12

2.

Facebook’s responses to the Interrogatories are made solely for the purpose of and in

13

relation to this action. Each response is given subject to all appropriate objections (including, but not

14

limited to, objections concerning privilege, competency, relevancy, materiality, propriety and

15

admissibility). All objections are reserved and may be interposed at any time.

16
17
18

3.

Facebook’s responses are based on its understanding that Plaintiffs seek only that

information that is within Facebook’s possession, custody, and control.
4.

Facebook incorporates by reference each and every general objection set forth into

19

each and every specific response. From time to time, a specific response may repeat a general

20

objection for emphasis or some other reason. The failure to include any general objection in any

21

specific response shall not be interpreted as a waiver of any general objection to that response.

22

5.

Nothing contained in these Reponses and Objections or provided in response to the

23

Interrogatories consists of, or should be construed as, an admission relating to the accuracy,

24

relevance, existence, or nonexistence of any alleged facts or information referenced in any

25

Interrogatory.

26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1558

1

GENERAL OBJECTIONS

2

1.

Facebook objects to each Interrogatory, including the Definitions and Instructions, to

3

the extent that it purports to impose obligations beyond those imposed by the Federal Rules of Civil

4

Procedure, the Federal Rules of Evidence, the Local Civil Rules of the U.S. District Court for the

5

Northern District of California, and any agreements between the parties.

6

2.

Facebook objects to each Interrogatory to the extent that it is not limited to the

7

relevant time period, thus making the Interrogatory overly broad, unduly burdensome, and not

8

relevant to the claims or defenses in this action. Unless otherwise specified in its responses,

9

Facebook’s response will be limited to information generated between December 30, 2011 and

10

December 20, 2012.

11

3.

Facebook objects to each Interrogatory to the extent that it seeks information unrelated

12

and irrelevant to the claims or defenses in this litigation and not reasonably calculated to lead to the

13

discovery of admissible evidence.

14

4.

Facebook objects to each Interrogatory as overly broad and unduly burdensome,

15

particularly in view of Facebook’s disproportionate cost necessary to investigate as weighed against

16

Plaintiffs’ need for the information. For example, many of the Interrogatories seek broad and

17

vaguely defined categories of materials that are not reasonably tailored to the subject matter of this

18

action.

19

5.

Facebook objects to each Interrogatory to the extent that it purports to request the

20

identification and disclosure of information or documents that were prepared in anticipation of

21

litigation, constitute attorney work product, reveal privileged attorney-client communications, or are

22

otherwise protected from disclosure under any applicable privileges, laws, or rules. Facebook hereby

23

asserts all such applicable privileges and protections, and excludes privileged and protected

24

information from its responses to each Interrogatory. See generally Fed. R. Evid. 502; Cal. Code

25

Evid. § 954. Inadvertent production of any information or documents that are privileged or otherwise

26

immune from discovery shall not constitute a waiver of any privilege or of any other ground for

27

objecting to the discovery with respect to such information or documents or the subject matter

28
Gibson, Dunn &
Crutcher LLP

APP. 1559

1

thereof, or the right of Facebook to object to the use of any such information or documents or the

2

subject matter thereof during these or any other proceedings. In the event of inadvertent disclosure

3

of any information or inadvertent production or identification of documents or communications that

4

are privileged or otherwise immune from discovery, Plaintiffs will return the information and

5

documents to Facebook and will be precluded from disclosing or relying upon such information or

6

documents in any way.

7

6.

Facebook objects to each and every Interrogatory to the extent that the information

8

sought by the Interrogatory is more appropriately pursued through another means of discovery, such

9

as a request for production or deposition.

10
11
12

7.

Facebook objects to each and every Interrogatory, Definition, and Instruction to the

extent that it seeks information outside of Facebook’s possession, custody, and control.
8.

Facebook objects to each Interrogatory to the extent that it requests information

13

protected by the right of privacy of Facebook and/or third parties, or information that is confidential,

14

proprietary, or competitively sensitive.

15

9.

Facebook objects to each Interrogatory to the extent that it seeks documents or

16

information already in Plaintiffs’ possession or available in the public domain. Such information is

17

equally available to Plaintiffs.

18
19

OBJECTIONS TO DEFINITIONS
1.

Facebook objects to Plaintiffs’ definition of “Active Likes” as vague, ambiguous,

20

overly broad, and unduly burdensome. Facebook further objects to the definition to the extent that

21

Plaintiffs purport to use this defined term to seek materials that are not relevant to the claims and

22

defenses in this action, particularly as a result of its reference to the undefined term, “Social Plugin.”

23
24
25

2.

Facebook objects to Plaintiffs’ definition of “Architecture” as vague, ambiguous,

26

overly broad, and unduly burdensome. Facebook further objects to the definition to the extent that

27

Plaintiffs purport to use this defined term to seek materials that are not relevant to the claims and

28
Gibson, Dunn &
Crutcher LLP

APP. 1560

1

defenses in this action, particularly as a result of its use of the phrase “including but not limited to”

2

and the undefined term “Your services.”

3

3.

Facebook generally objects to Plaintiffs’ definitions of “Communication,”

4

“Document(s),” “Electronic Media,” “ESI,” “Electronically Stored Information,” “Identify,” and

5

“Metadata” to the extent that Plaintiffs purport to use these defined terms to request the identification

6

and disclosure of documents that: (a) were prepared in anticipation of litigation; (b) constitute

7

attorney work product; (c) reveal privileged attorney-client communications; or (d) are otherwise

8

protected from disclosure under any applicable privileges, laws, and/or rules. Facebook further

9

objects to the extent that these definitions purport to impose obligations that go beyond the

10

requirements of the Federal and Local Rules.

11

4.

Facebook objects to Plaintiffs’ definition of “Facebook User Data Profile(s)” as vague,

12

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the

13

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

14

claims and defenses in this action.

15

5.

Facebook objects to Plaintiffs’ definition of “Passive Likes” as vague, ambiguous,

16

overly broad, and unduly burdensome. Facebook further objects to the definition to the extent that

17

Plaintiffs purport to use this defined term to seek materials that are not relevant to the claims and

18

defenses in this action. Facebook construes the term “Passive Likes” as it relates to the practice

19

challenged in this action (the alleged increase in the Facebook “Like” count on a website when the

20

URL for that website was contained in a message transmitted through Facebook’s Messages product

21

during the class period (December 30, 2011 to approximately December 20, 2012)). Specifically,

22

Facebook construes “Passive Likes” to refer to an increase in the “Like” count on a third-party

23

website resulting from inclusion of that website’s URL in a Facebook message during the class

24

period.

25
26

6.

Facebook objects to Plaintiffs’ definition and use of the term “Person” as vague,

ambiguous, overly broad, and unduly burdensome to the extent that Plaintiffs intend to use this term

27
28
Gibson, Dunn &
Crutcher LLP

APP. 1561

1

to include “any natural person or any business, legal or governmental entity or association” over

2

which Facebook exercises no control.

3

7.

Facebook objects to Plaintiffs’ definition of “Private Message(s)” to the extent that it

4

is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the

5

definition to the extent that Plaintiffs purport to use this defined term to seek materials that are not

6

relevant to the claims and defenses in this action.

7

8.

Facebook objects to Plaintiffs’ definition of “Private Message Content” to the extent

8

that it is vague, ambiguous, overly broad, and unduly burdensome. Facebook further objects to the

9

definition to the extent that Plaintiffs purport to use this defined term to seek materials that are not

10

relevant to the claims and defenses in this action. Facebook further objects to this definition on the

11

ground and to the extent it is inconsistent with applicable law.

12

9.

Facebook objects to Plaintiffs’ definition of “Private Message Transmission” as vague,

13

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the

14

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

15

claims and defenses in this action. Facebook further objects to this definition on the ground and to

16

the extent it is inconsistent with relevant law.

17

10.

Facebook objects to Plaintiffs’ definitions of “Relate(s) to,” “Related to” and

18

“Relating to” on the ground that the definitions make the Interrogatories overly broad and unduly

19

burdensome and impose obligations that go beyond the requirements of the Federal and Local Rules.

20

Facebook shall construe these terms as commonly and ordinarily understood.

21

11.

Facebook objects to Plaintiffs’ definition of “Targeted Advertising” as vague,

22

ambiguous, overly broad, and unduly burdensome. Facebook further objects to the definition to the

23

extent that Plaintiffs purport to use this defined term to seek materials that are not relevant to the

24

claims and defenses in this action.

25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1562

1

12.

Facebook objects to Plaintiffs’ definition of “Transmission,” “Transmit,” and

2

“Transmitting” as vague, ambiguous, overly broad, and unduly burdensome. Facebook further

3

objects to the definition to the extent that Plaintiffs purport to use these terms to seek materials that

4

are not relevant to the claims and defenses in this action.

5

13.

Facebook objects to Plaintiffs’ definition and use of the terms “You” or “Your” as

6

vague, ambiguous, overly broad, and unduly burdensome to the extent the terms are meant to include

7

“directors, officers, employees, partners, members, representatives, agents (including attorneys,

8

accountants, consultants, investment advisors or bankers), and any other person purporting to act on

9

[Facebook, Inc.’s] behalf. . . . parents, subsidiaries, affiliates, predecessor entities, successor entities,

10

divisions, departments, groups, acquired entities and/or related entities or any other entity acting or

11

purporting to act on its behalf” over which Facebook exercises no control, and to the extent that

12

Plaintiffs purport to use these terms to impose obligations that go beyond the requirements of the

13

Federal and Local Rules.

14
15
16
17

OBJECTIONS TO “RULES OF CONSTRUCTION” AND INSTRUCTIONS
1.

Facebook objects to Plaintiffs’ “Rules of Construction” and “Instructions” to the

extent they impose obligations that go beyond the requirements of the Federal and Local Rules.
2.

Facebook objects to Plaintiffs’ Instruction No. 2 to the extent that it is not limited to

18

the relevant time period, thus making the Instruction overly broad, unduly burdensome, and not

19

relevant to the claims or defenses in this action. Unless otherwise specified in its responses,

20

Facebook’s response will be limited to information generated between December 30, 2011 and

21

December 20, 2012.

22

3.

Facebook objects to Plaintiffs’ Instruction No. 6 as ambiguous and unduly

23

burdensome. Facebook further objects to the instruction to the extent it exceeds the requirements of

24

the Federal and Local Rules.

25

OBJECTION TO PURPORTED “RELEVANT TIME PERIOD”

26

Facebook objects to Plaintiffs’ proposed “Relevant Time Period” (September 26, 2006

27

through the present) because it substantially exceeds the proposed class period identified in Plaintiffs’

28
Gibson, Dunn &
Crutcher LLP

APP. 1563

1

Consolidated Amended Complaint, does not reflect the time period that is relevant to Plaintiffs’

2

claims in this action, and renders the Interrogatories overly broad, unduly burdensome, and irrelevant.

3

Unless otherwise specified, Facebook’s Responses to these Interrogatories will be limited to

4

information generated between December 30, 2011 and December 20, 2012, which is the proposed

5

class period defined in Plaintiffs’ Consolidated Amended Complaint. (See Pls.’ Consol. Am. Compl.

6

[Dkt. 25] ¶ 59 & n.3.) Facebook otherwise objects to the remainder of Plaintiffs’ statement regarding

7

the “Relevant Time Period” to the extent that it purports to impose obligations beyond those imposed

8

by the Federal and Local Rules.

9
10
11

SPECIFIC RESPONSES AND OBJECTIONS
INTERROGATORY NO. 1:
Identify all persons, including Third Parties and Your current and former employees, known

12

by You to have personal knowledge of any facts or issues involved in this lawsuit, and for each

13

person please identify

14

(A) the party’s first and last name;

15

(B) the party’s employer, if not You;

16

(C) the party’s job title(s); and

17

(D) the nature of the party’s personal knowledge of the facts or issues involved in this

18

lawsuit.

19
20

RESPONSE TO INTERROGATORY NO. 1:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

21

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

22

forth in this Response. Facebook further objects to this Interrogatory on the following additional

23

grounds:

24

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Third

25

Parties”; “any facts or issues involved in this lawsuit”; and “nature of the party’s personal knowledge

26

of the facts or issues involved in this lawsuit.”

27

(B)

The Interrogatory is compound.

28
Gibson, Dunn &
Crutcher LLP

APP. 1564

1

(C)

The Interrogatory is overly broad in that it purports to seek information regarding each

2

Facebook employee’s “personal knowledge” of “facts or issues involved in this lawsuit,” over an

3

extended time period. Facebook will respond to the best of its ability and based on the information

4

known and identified to date.

5
6
7
8

(D) The Interrogatory purports to request employment information that is not relevant to the
claims or defenses in this action.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1565

1
2

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

3

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

4

forth in this Response. Facebook further objects to this Interrogatory on the following additional

5

grounds:

6

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Third

7

Parties”; “any facts or issues involved in this lawsuit”; and “nature of the party’s personal knowledge

8

of the facts or issues involved in this lawsuit.”

9

(B)

The Interrogatory is compound.

10

(C)

The Interrogatory is overly broad in that it purports to seek information regarding each

11

Facebook employee’s “personal knowledge” of “facts or issues involved in this lawsuit,” over an

12

extended time period. Facebook will respond to the best of its ability and based on the information

13

known and identified to date.

14
15
16
17

(D) The Interrogatory purports to request employment information that is not relevant to the
claims or defenses in this action.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1566

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1567

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Facebook reserves the right to supplement its response to this Interrogatory as its investigation
continues.

27
28
Gibson, Dunn &
Crutcher LLP

APP. 1568

1

INTERROGATORY NO. 2:

2

Identify by name, purpose, sequence, function and physical location each Process and/or piece

3

of Architecture involved in Private Message Transmission.

4

RESPONSE TO INTERROGATORY NO. 2:

5

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

6

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

7

forth in this Response. Facebook further objects to this Interrogatory on the following additional

8

grounds:

9
10

(A)

The Interrogatory is vague and ambiguous in its use of the phrases “Process and/or

piece of Architecture” and “Private Message Transmission.”

11

(B)

The Interrogatory is compound.

12

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

13

this action to the extent it concerns practices other than those challenged in this action (the alleged

14

increase in the Facebook “Like” count on a website when the URL for that website was contained in

15

a message transmitted through Facebook’s Messages product during the Class Period (December 30,

16

2011 to October 31, 2012)).

17

(D)

The Interrogatory is overly broad in that it purports to seek information regarding each

18

“Process and/or piece of Architecture involved in” the transmission of Facebook messages over an

19

extended time period. Facebook will respond to the best of its ability and based on the information

20

known and identified to date, and as limited by the practice challenged in this action (as defined

21

above).

22
23
24
25

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1569

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1570

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1571

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1572

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

16

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

17

forth in this Response. Facebook further objects to this Interrogatory on the following additional

18

grounds:

19
20

(A)

The Interrogatory is vague and ambiguous in its use of the phrases “Process and/or

piece of Architecture” and “Private Message Transmission.”

21

(B)

The Interrogatory is compound.

22

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

23

this action to the extent it concerns practices other than those challenged in this action (the alleged

24

increase in the Facebook “Like” count on a website when the URL for that website was contained in

25

a message transmitted through Facebook’s Messages product during the Class Period (December 30,

26

2011 to approximately December 20, 2012)).

27

(D)

The Interrogatory is overly broad in that it purports to seek information regarding each

28
Gibson, Dunn &
Crutcher LLP

APP. 1573

1

“Process and/or piece of Architecture involved in” the transmission of Facebook messages over an

2

extended time period. Facebook will respond to the best of its ability and based on the information

3

known and identified to date, and as limited by the practice challenged in this action (as defined

4

above).

5
6
7
8

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1574

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1575

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1576

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

INTERROGATORY NO. 3:
For each Process and/or piece of Architecture identified in Interrogatory No. 2, identify
whether – and the manner in which – such Process and/or piece of Architecture scans, analyzes, or

28
Gibson, Dunn &
Crutcher LLP

APP. 1577

1

extracts Private Message Content.

2

RESPONSE TO INTERROGATORY NO. 3:

3

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

4

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

5

forth in this Response. Facebook further objects to this Interrogatory on the following additional

6

grounds:

7
8

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

and/or piece of Architecture,” “Private Message Content,” “scans,” “analyzes,” and “extracts.”

9

(B)

The Interrogatory is compound.

10

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

11

this action to the extent it concerns practices other than those challenged (the alleged increase in the

12

Facebook “Like” count on a website when the URL for that website was contained in a message

13

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

14

October 31, 2012)).

15

(D)

The Interrogatory is overly broad in that it purports to seek additional information

16

regarding each “Process and/or piece of Architecture involved in” the transmission of Facebook

17

messages over an extended time period. Facebook will respond to the best of its ability and based on

18

the information known and identified to date, and as limited by the practice challenged in this action

19

(as defined above).

20

(E)

21
22
23

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1578

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1579

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1580

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1581

1
2
3
4
5
6
7
8
9
10
11
12
13

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

14

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

15

forth in this Response. Facebook further objects to this Interrogatory on the following additional

16

grounds:

17
18

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

and/or piece of Architecture,” “Private Message Content,” “scans,” “analyzes,” and “extracts.”

19

(B)

The Interrogatory is compound.

20

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

21

this action to the extent it concerns practices other than those challenged (the alleged increase in the

22

Facebook “Like” count on a website when the URL for that website was contained in a message

23

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

24

approximately December 20, 2012).

25

(D)

The Interrogatory is overly broad in that it purports to seek additional information

26

regarding each “Process and/or piece of Architecture involved in” the transmission of Facebook

27

messages over an extended time period. Facebook will respond to the best of its ability and based on

28
Gibson, Dunn &
Crutcher LLP

APP. 1582

1

the information known and identified to date, and as limited by the practice challenged in this action

2

(as defined above).

3

(E)

4
5
6

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1583

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1584

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1585

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

INTERROGATORY NO. 4:

24

For each Process and/or piece of Architecture identified in Interrogatory No. 3, identify all

25

uses to which the scanned/analyzed/extracted Private Message Content – as well as any additional

26

data, metadata or other content generated therefrom – are put.

27
28
Gibson, Dunn &
Crutcher LLP

APP. 1586

1
2

RESPONSE TO INTERROGATORY NO. 4:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

3

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

4

forth in this Response. Facebook further objects to this Interrogatory on the following additional

5

grounds:

6
7

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

and/or piece of Architecture,” “Private Message Content,” “scanned,” “analyzed,” and “extracted.”

8

(B)

The Interrogatory is compound.

9

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

10

this action to the extent it concerns practices other than those challenged (the alleged increase in the

11

Facebook “Like” count on a website when the URL for that website was contained in a message

12

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

13

October 31, 2012)).

14

(D)

The Interrogatory is overly broad in that it purports to seek additional information

15

regarding each “Process and/or piece of Architecture involved in” the transmission of Facebook

16

messages over an extended time period. Facebook will respond to the best of its ability and based on

17

the information known and identified to date, and as limited by the practice challenged in this action

18

(as defined above).

19

(E)

20
21
22

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1587

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1588

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1589

1
2
3
4
5
6

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

7

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

8

forth in this Response. Facebook further objects to this Interrogatory on the following additional

9

grounds:

10
11

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

and/or piece of Architecture,” “Private Message Content,” “scanned,” “analyzed,” and “extracted.”

12

(B)

The Interrogatory is compound.

13

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

14

this action to the extent it concerns practices other than those challenged (the alleged increase in the

15

Facebook “Like” count on a website when the URL for that website was contained in a message

16

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

17

approximately December 20, 2012)).

18

(D)

The Interrogatory is overly broad in that it purports to seek additional information

19

regarding each “Process and/or piece of Architecture involved in” the transmission of Facebook

20

messages over an extended time period. Facebook will respond to the best of its ability and based on

21

the information known and identified to date, and as limited by the practice challenged in this action

22

(as defined above).

23

(E)

24
25
26

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

27
28
Gibson, Dunn &
Crutcher LLP

APP. 1590

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1591

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1592

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

INTERROGATORY NO. 5:
Identify by name, purpose, sequence, function and physical location each Process and/or piece

18

of Architecture involved in the creation, development, or maintenance of Facebook User Profiles.

19

RESPONSE TO INTERROGATORY NO. 5:

20

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

21

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

22

forth in this Response. Facebook further objects to this Interrogatory on the following additional

23

grounds:

24

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

25

and/or piece of Architecture,” “Facebook User Profiles,” “purpose,” “sequence,” “function,” and

26

“physical location.”

27

(B)

The Interrogatory is compound.

28
Gibson, Dunn &
Crutcher LLP

APP. 1593

1

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

2

this action to the extent it concerns practices other than those challenged (the alleged increase in the

3

Facebook “Like” count on a website when the URL for that website was contained in a message

4

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

5

October 31, 2012)).

6

(D)

The Interrogatory is overly broad in that it purports to seek information regarding each

7

“Process and/or piece of Architecture involved in the creation, development, or maintenance of

8

Facebook User Profiles” over an extended time period. Facebook will respond to the best of its

9

ability and based on the information known and identified to date, and as limited by the practice

10
11
12
13
14

challenged in this action (as defined above).
(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

APP. 1594

1
2
3
4
5
6
7
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SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 5:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

21

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

22

forth in this Response. Facebook further objects to this Interrogatory on the following additional

23

grounds:

24

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases “Process

25

and/or piece of Architecture,” “Facebook User Profiles,” “purpose,” “sequence,” “function,” and

26

“physical location.”

27

(B)

The Interrogatory is compound.

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APP. 1595

1

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

2

this action to the extent it concerns practices other than those challenged (the alleged increase in the

3

Facebook “Like” count on a website when the URL for that website was contained in a message

4

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

5

approximately December 20, 2012)).

6

(D)

The Interrogatory is overly broad in that it purports to seek information regarding each

7

“Process and/or piece of Architecture involved in the creation, development, or maintenance of

8

Facebook User Profiles” over an extended time period. Facebook will respond to the best of its

9

ability and based on the information known and identified to date, and as limited by the practice

10
11
12
13
14

challenged in this action (as defined above).
(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

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APP. 1596

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22

INTERROGATORY NO. 6:
Identify all possible fields or data points that can comprise a Facebook User Profile.
RESPONSE TO INTERROGATORY NO. 6:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

23

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

24

forth in this Response. Facebook further objects to this Interrogatory on the following additional

25

grounds:

26
27

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases

“Facebook User Profile” and “all possible fields or data points.”

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APP. 1597

1

(B)

The Interrogatory is compound.

2

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

3

this action to the extent it concerns practices other than those challenged (the alleged increase in the

4

Facebook “Like” count on a website when the URL for that website was contained in a message

5

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

6

October 31, 2012)).

7

(D)

The Interrogatory is overly broad in that it purports to seek information regarding “all

8

possible fields or data points that can comprise a Facebook User Profile” over an extended time

9

period. Facebook will respond to the best of its ability and based on the information known and

10
11
12
13
14

identified to date, and as limited by the practice challenged in this action (as defined above).
(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

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APP. 1598

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2
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5
6
7
8
9
10
11
12
13
14
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20

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 6:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

21

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

22

forth in this Response. Facebook further objects to this Interrogatory on the following additional

23

grounds:

24
25

(A)

The Interrogatory is vague and ambiguous in its use of the terms and phrases

“Facebook User Profile” and “all possible fields or data points.”

26

(B)

The Interrogatory is compound.

27

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

28
Gibson, Dunn &
Crutcher LLP

APP. 1599

1

this action to the extent it concerns practices other than those challenged (the alleged increase in the

2

Facebook “Like” count on a website when the URL for that website was contained in a message

3

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

4

approximately December 20, 2012)).

5

(D)

The Interrogatory is overly broad in that it purports to seek information regarding “all

6

possible fields or data points that can comprise a Facebook User Profile” over an extended time

7

period. Facebook will respond to the best of its ability and based on the information known and

8

identified to date, and as limited by the practice challenged in this action (as defined above).

9
10
11
12

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

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APP. 1600

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18

INTERROGATORY NO. 7:
For each field or data point identified in Interrogatory No. 6, identify whether – and the

19

manner in which – such field or data point can be accessed, in any form, by Third Parties, including

20

but not limited to Developers, Third Party websites, and Facebook Users.

21

RESPONSE TO INTERROGATORY NO. 7:

22

Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

23

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

24

forth in this Response. Facebook further objects to this Interrogatory on the following additional

25

grounds:

26
27

(A)

The Interrogatory is vague and ambiguous in its use of the terms “field,” “data point,”

“Developers,” and “Third Party websites.”

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Gibson, Dunn &
Crutcher LLP

APP. 1601

1

(B)

The Interrogatory is compound.

2

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

3

this action to the extent it concerns practices other than those challenged (the alleged increase in the

4

Facebook “Like” count on a website when the URL for that website was contained in a message

5

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

6

October 31, 2012)). Facebook interprets this Interrogatory as limited to the practice challenged in

7

this action.

8

(D)

The Interrogatory is overly broad in that it purports to seek information regarding

9

“each field or data point identified in Interrogatory No. 6” over an extended time period. Facebook

10

will respond to the best of its ability and based on the information known and identified to date, and

11

as limited by the practice challenged in this action (as defined above).

12
13
14
15

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

16
17
18
19
20
21
22
23

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7:
Facebook restates and incorporates its Preliminary Statement, General Objections, Objections

24

to “Rules of Construction,” Instructions, and Purported “Relevant Time Period” as though fully set

25

forth in this Response. Facebook further objects to this Interrogatory on the following additional

26

grounds:

27
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Crutcher LLP

APP. 1602

1
2

(A)

The Interrogatory is vague and ambiguous in its use of the terms “field,” “data point,”

“Developers,” and “Third Party websites.”

3

(B)

The Interrogatory is compound.

4

(C)

The Interrogatory seeks information that is not relevant to the claims or defenses in

5

this action to the extent it concerns practices other than those challenged (the alleged increase in the

6

Facebook “Like” count on a website when the URL for that website was contained in a message

7

transmitted through Facebook’s Messages product during the Class Period (December 30, 2011 to

8

approximately December 20, 2012)). Facebook interprets this Interrogatory as limited to the practice

9

challenged in this action.

10

(D)

The Interrogatory is overly broad in that it purports to seek information regarding

11

“each field or data point identified in Interrogatory No. 6” over an extended time period. Facebook

12

will respond to the best of its ability and based on the information known and identified to date, and

13

as limited by the practice challenged in this action (as defined above).

14
15
16
17

(E)

The Interrogatory seeks information that reflects trade secrets, confidential, and/or

proprietary company information.
Subject to and without waiving the foregoing general and specific objections, and subject to
the ongoing nature of discovery in this action, Facebook responds as follows:

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DATED: September 8, 2015

GIBSON, DUNN & CRUTCHER LLP
By:

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27

/s/ Joshua A. Jessen
Joshua A. Jessen

Attorneys for Defendant FACEBOOK, INC.

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APP. 1603

APP. 1604

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PROOF OF SERVICE
I, Ashley M. Rogers, declare as follows:
I am employed in the County of Santa Clara, State of California, I am over the age of eighteen
years and am not a party to this action; my business address is 1881 Page Mill Road, Palo Alto, CA
94304-1211, in said County and State. On September 8, 2015, I served the following document(s):
DEFENDANT FACEBOOK, INC.’S SUPPLEMENTAL RESPONSES AND
OBJECTIONS TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES
on the parties stated below, by the following means of service:
David F. Slade
[e-mail]
James Allen Carney
[e-mail]
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
[e-mail]

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Melissa Ann Gardner
[e-mail]
Nicholas Diamand
[e-mail]
Rachel Geman
[e-mail]
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
[e-mail]

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20

BY ELECTRONIC SERVICE: On the above-mentioned date based on an agreement of
the parties to accept service by electronic transmission, I caused the document to be sent to
the persons at the electronic notification addresses as shown above.

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I am employed in the office of Joshua A. Jessen and am a member of the bar of this court.

22

I declare under penalty of perjury that the foregoing is true and correct.

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Executed on September 8, 2015.
/s/
Ashley M. Rogers

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APP. 1605

APP. 1606

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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

15

NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISON

17

MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,

18

Case No. C 13-05996 PJH (MEJ)
PUTATIVE CLASS ACTION

Plaintiffs,
19

DECLARATION OF ALEX HIMEL
ON BEHALF OF DEFENDANT
FACEBOOK, INC.

v.
20
FACEBOOK, INC.,
21
Defendant.
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24

HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY
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APP. 1607

1
2

I, Alex Himel, declare as follows:
1.

I have been employed as a software engineer at Facebook since April 2009, and my

3

current title is Engineering Director. From 2009-2014, I worked on Facebook’s Developer Platform,

4

and my work encompassed Facebook’s “Share” button, Facebook’s “Like” button, and the code that

5

keeps track of the “count” features associated with “Share” and “Like.” I have personal knowledge

6

of the matters stated herein and, if called as a witness, could and would testify competently thereto. I

7

provide this Declaration to explain certain facts regarding Facebook’s software code as it relates to

8

detecting uniform resource locators (“URLs”) in messages sent and received through the Facebook

9

platform and the relationship of any such URLs to certain social plugins served by Facebook and

10

visible on third-party websites. In particular, I refer below to the count associated with a Facebook

11

“Like” social plugin on third-party websites (the “Like” count). I also explain the termination of

12

related practices in October and December 2012.

13

2.

I understand the purported class in this action to consist of Facebook users located

14

within the United States who have sent or received messages that included URLs in the body of the

15

message from December 30, 2011 until in or around late 2012, when the practice of including URL

16

shares in messages in the count on third-party websites ceased (“the Relevant Period”).

17

Facebook’s Source Code

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19

3.

internal Facebook system
. These documents,

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21

Attached as Exhibits A through G are true and correct copies of documents from an

, a description

include the date o
, and the

is on the left, and the relevant

22

. The relevant
is on the right.

23
.

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25
26

4.

To the extent that the above-mentioned documents contain source code, this code has

been redacted for several reasons.

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APP. 1608

1

5.

First, Facebook’s source code is a closely guarded trade secret of enormous economic

2

value. Providing it to outside parties increases the risk of further disclosure and therefore poses a risk

3

of substantial competitive harm. Disclosure of source code outside of Facebook erodes Facebook’s

4

efforts to protect the code in which Facebook has invested significant resources and which comprises

5

a significant part of Facebook’s product offering and competitive advantage. Indeed, the code

6

reflected in

7

that generates Facebook’s proprietary design and functionalities could cause catastrophic competitive

8

harm by allowing others to replicate that design and functionality without making the same

9

investment of time, money, and personnel.

10

6.

is the product of thousands of engineering hours. Revealing the code

Second, disclosing portions of Facebook’s source code would reveal the methods used

11

to protect Facebook’s users and the integrity of the Facebook platform, and could undermine both of

12

these efforts. Facebook’s source code includes complex safety and security features that detect spam,

13

detect and prevent abuse of the system, and protect users from malware, among other things. These

14

features not only provide for a better and more enjoyable product (another competitive advantage for

15

Facebook), but also protect Facebook and its users from harm and loss associated with unsolicited

16

and dangerous content and activities by third parties. The effectiveness of these systems depends in

17

part on their secrecy. Disclosure of Facebook’s security methods would potentially allow hackers

18

and abusers to threaten users and the system.

19

7.

In the context of certain types of litigation (such as patent litigation) where there may

20

be a legitimate need for source code inspection, I am aware that Facebook negotiates specific

21

protections for source code and implements detailed and time-consuming protocols for handling

22

source code, as well as extensive limitations on the use of source code materials, disclosure, and

23

future restrictions on the conduct of individuals exposed to source code materials.

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25

8.

In the present case, evidence other than source code is available to demonstrate the

processes and functionality at issue. In particular, the non-code information embodied in

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27

—effectively demonstrates the processes and
functionality at issue. Additionally, the source code for the processes and functionality at issue is not

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APP. 1609

1

limited or contained in any discrete way; that is, it is interconnected with other source code at

2

Facebook. Therefore, if Facebook were required to make source code available in this matter, it

3

would have little choice but to grant access to a significant amount of source code that has nothing to

4

do with the allegations in this case.

5

Share and Like Functionality

6

9.

During the Relevant Period, Facebook offered websites “social plugins,” or units of

7

embeddable code that allow users to share information using Facebook directly from third-party

8

websites. A third-party website may have embedded code for the Facebook “Like” button plugin on

9

its website, enabling Facebook users to directly “Like” the website and to share that action with their

10

Facebook connections (without having to return to https://www.facebook.com or the Facebook

11

mobile app to share the content). The “Like” button plugin also may have displayed an anonymous

12

and aggregate count of all “Likes” for that particular website (the above-referenced “Like” count).

13

Facebook also offered a “Share” button, which also may have displayed an anonymous and aggregate

14

count of all “Shares” for that particular website (the “Share” count).

15

10.

In September 2009, Facebook enabled functionality that would ultimately allow third-

16

party website developers to provide a count associated with a “Share” button on their websites.

17

Attached as Exhibit A is a

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APP. 1610

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Ex. A at 5, 7-8. In addition to

2

the overall “Share count,” third-party website developers also could view the public API statistics

3

indicating how many times a particular URL was shared. The public API statistics did not include

4

statistics indicating (specifically or by inference) how many times a given URL was shared using the

5

“Share” button and choosing “in a private message.”

6

11.

In October 2009, Facebook

7
8
9
10
11
12
13
14

Ex. B at 3-5.
12.

At our F8 Developer Conference on April 21, 2010, Facebook announced the public

15

launch of the “Like” button, which also included a count feature reflecting the number of times a user

16

had clicked or commented on the “Like” button on that third-party website. The

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21

.
13.

In May 2010, Facebook

Exhibit C is a

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APP. 1611

. Attached as

1
2
3
4
5
6

Ex. C at 5.
URL Preview

14.

During the Relevant Period, Facebook’s service included a Messages product, which

7

allowed users to exchange messages that could be viewed in the recipient user’s Messages folder.

8

Beginning in August 2010, Facebook’s source code included functionality supporting a feature

9
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13

15.

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15

—including a brief description of the
URL and, if available, a relevant image from the website, as illustrated by the example below:

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16.
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APP. 1612

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2

.

3

17.

If a user proceeded to send a message,

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5

.

6
7
8

.
1

9
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12

18.

Attached as Exhibit D is the
. 2 As

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described

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22

1

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2

“Titan” was the internal name for the Facebook Messages product.

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APP. 1613

APP. 1614

APP. 1615

EXHIBIT A

APP. 1616

App. 1617-1692
Filed Under Seal