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
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APP. 500
App. 501-556
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APP. 557
App. 558-688
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APP. 689
App. 690-710
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App. 712-728
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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
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App. 916-970
Filed Under Seal
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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
jjessen@gibsondunn.com
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
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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) )
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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
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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
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
ASHLEY M. ROGERS, SBN 286252
ARogers@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
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Attorneys for Defendant
FACEBOOK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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PUTATIVE CLASS ACTION
Plaintiffs,
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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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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
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Defendant Facebook, Inc. (“Defendant” or “Facebook”), by and through its attorneys, and
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pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S.
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District Court for the Northern District of California, the Court orders in this action, and the parties’
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agreements and conferences among counsel, provides the following responses and objections to
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Plaintiffs’ First Set of Requests for Admission (each, a “Request,” collectively the “Requests”).
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OBJECTIONS TO DEFINITIONS
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1.
Facebook objects to Plaintiffs’ definition and use of the terms “You” or “Your” as
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vague, ambiguous, overly broad, and unduly burdensome to the extent the terms are meant to include
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“directors, officers, employees, partners, members, representatives, agents (including attorneys,
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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,
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divisions, departments, groups, acquired entities and/or related entities or any other entity acting or
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purporting to act on its behalf” over which Facebook exercises no control, and to the extent that
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Plaintiffs purport to use these terms to impose obligations that go beyond the requirements of the
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Federal and Local Rules.
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OBJECTION TO PURPORTED “RELEVANT TIME PERIOD”
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Facebook objects to Plaintiffs’ proposed “Relevant Time Period” (September 26, 2006
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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’
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claims in this action, and renders the Requests overly broad, unduly burdensome, and irrelevant.
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Unless otherwise specified, and pursuant to the agreement of the parties, Facebook’s Responses to
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these Requests will be limited to information generated between April 1, 2010 and December 30,
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2013.
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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.
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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
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RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Facebook restates and incorporates its Objections to Definitions and its Objection to the
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Purported “Relevant Time Period” as though fully set forth in this Response. Subject to and without
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waiving the foregoing objections, Facebook denies this Request.
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DATED: June 29, 2015
GIBSON, DUNN & CRUTCHER LLP
By:
/s/
Joshua A. Jessen
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Attorney for Defendant FACEBOOK, INC.
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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
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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
dslade@cbplaw.com
James Allen Carney
acarney@cbplaw.com
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
hbates@cbplaw.com
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Jeremy A. Lieberman
Pomerantz Grossman Hufford Dahlstrom & Gross LLP
jalieberman@pomlaw.com
Melissa Ann Gardner
mgardner@lchb.com
Nicholas Diamand
ndiamand@lchb.com
Rachel Geman
rgeman@lchb.com
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
msobol@lchb.com
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Jon A Tostrud
Tostrud Law Group, P.C.
jtostrud@tostrudlaw.com
Lionel Z. Glancy
Glancy Binkow & Goldberg LLP
info@glancylaw.com
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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. 988
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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.
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I am employed in the office of Joshua A. Jessen and am a member of the bar of this court.
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I declare under penalty of perjury that the foregoing is true and correct.
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Executed on June 29, 2015.
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/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: +1 949.475.4741
JJessen@gibsondunn.com
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”
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Joshua A. Jessen
Direct: +1 949.451.4114
Fax: +1 949.475.4741
JJessen@gibsondunn.com
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
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
UNITED STATES DISTRICT COURT
2
NORTHERN DISTRICT OF CALIFORNIA
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4
________________________________
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MATTHEW CAMPBELL, MICHAEL
)
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HURLEY, and DAVID SHADPOUR, on
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behalf of themselves and all
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others similarly situated,
)
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Plaintiffs,
vs.
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) Case No.
FACEBOOK, INC.,
12
)
) C 13-05996 PJH
Defendant.
) Volume I
________________________________)
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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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
25
PAGES 1 - 307
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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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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.
09:53:46
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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.
12:55:04
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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
01:17:19
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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.
01:33:48
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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?
01:34:50
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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 --
01:37:14
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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,
01:37:54
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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.)
01:38:57
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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
01:50:41
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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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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?
02:10:14
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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
02:18:45
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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.
02:20:12
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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?
02:26:31
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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
02:27:46
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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.)
02:39:09
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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
03:33:26
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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.
03:35:43
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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
03:36:55
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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?
03:37:48
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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
03:48:39
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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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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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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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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
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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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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
Page 21
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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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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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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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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
Page 105
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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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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%>
21
Notary Public in and for
22
the District of Columbia
23
24
My Commission expires:
June 30, 2020
25
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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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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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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
Page 114
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APP. 1466
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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
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
PRIYANKA RAJAGOPALAN, SBN 278504
PRajagopalan@gibsondunn.com
ASHLEY M. ROGERS, SBN 286252
ARogers@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
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,
25
26
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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
27
28
Gibson, Dunn &
Crutcher LLP
7
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
26
27
28
Gibson, Dunn &
Crutcher LLP
8
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
17
18
19
20
21
22
23
24
25
26
27
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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
26
27
28
Gibson, Dunn &
Crutcher LLP
12
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,
25
26
27
28
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
21
22
23
24
25
47.
26
27
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Gibson, Dunn &
Crutcher LLP
14
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.
26
27
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Gibson, Dunn &
Crutcher LLP
15
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
1
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
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
16
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,
5
6
7
8
9
10
11
12
13
14
15
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
18
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
22
23
24
25
26
27
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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
26
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
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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Crutcher LLP
23
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
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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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
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
ASHLEY M. ROGERS, SBN 286252
ARogers@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
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
22
23
24
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
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
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
14
15
16
17
18
19
20
21
22
23
24
25
26
27
2
28
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
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
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
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
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
18
19
20
21
22
23
24
25
26
3
27
28
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
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
12
13
14
15
16
17
18
19
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
dslade@cbplaw.com
James Allen Carney
acarney@cbplaw.com
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
hbates@cbplaw.com
Melissa Ann Gardner
mgardner@lchb.com
Nicholas Diamand
ndiamand@lchb.com
Rachel Geman
rgeman@lchb.com
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
msobol@lchb.com
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
26
27
28
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
1
2
3
4
5
6
7
8
9
10
11
12
GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
ASHLEY M. ROGERS, SBN 286252
ARogers@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
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
8
9
10
11
12
13
14
15
16
17
18
19
20
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.
28
Gibson, Dunn &
Crutcher LLP
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:
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1596
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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.”
28
Gibson, Dunn &
Crutcher LLP
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:
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1598
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
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:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1600
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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.”
28
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
28
Gibson, Dunn &
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:
18
19
20
21
22
23
24
25
DATED: September 8, 2015
GIBSON, DUNN & CRUTCHER LLP
By:
26
27
/s/ Joshua A. Jessen
Joshua A. Jessen
Attorneys for Defendant FACEBOOK, INC.
28
Gibson, Dunn &
Crutcher LLP
APP. 1603
APP. 1604
1
2
3
4
5
6
7
8
9
10
11
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
dslade@cbplaw.com
James Allen Carney
acarney@cbplaw.com
Joseph Henry Bates, III
Carney Bates & Pulliam, PLLC
hbates@cbplaw.com
12
13
14
15
16
17
Melissa Ann Gardner
mgardner@lchb.com
Nicholas Diamand
ndiamand@lchb.com
Rachel Geman
rgeman@lchb.com
Michael W. Sobol
Lieff Cabraser Heimann & Bernstein, LLP
msobol@lchb.com
18
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.
21
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.
19
23
24
Executed on September 8, 2015.
/s/
Ashley M. Rogers
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1605
APP. 1606
1
2
3
4
5
6
7
8
9
10
11
12
GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
ASHLEY M. ROGERS, SBN 286252
ARogers@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
Attorneys for Defendant
FACEBOOK, INC.
13
14
UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA
16
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.
22
23
24
HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY
25
26
27
28
Gibson, Dunn &
Crutcher LLP
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
18
19
3.
internal Facebook system
. These documents,
20
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
.
24
25
26
4.
To the extent that the above-mentioned documents contain source code, this code has
been redacted for several reasons.
27
28
Gibson, Dunn &
Crutcher LLP
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.
24
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
26
27
—effectively demonstrates the processes and
functionality at issue. Additionally, the source code for the processes and functionality at issue is not
28
Gibson, Dunn &
Crutcher LLP
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
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1610
1
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
17
18
19
20
21
.
13.
In May 2010, Facebook
Exhibit C is a
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
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
10
11
12
13
15.
14
15
—including a brief description of the
URL and, if available, a relevant image from the website, as illustrated by the example below:
16
17
18
19
20
21
22
23
16.
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
APP. 1612
1
2
.
3
17.
If a user proceeded to send a message,
4
5
.
6
7
8
.
1
9
10
11
12
18.
Attached as Exhibit D is the
. 2 As
13
14
described
15
16
17
18
19
20
21
22
1
23
24
25
26
27
2
“Titan” was the internal name for the Facebook Messages product.
28
Gibson, Dunn &
Crutcher LLP
APP. 1613
APP. 1614
APP. 1615
EXHIBIT A
APP. 1616
App. 1617-1692
Filed Under Seal
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