Campbell et al v. Facebook Inc.

Filing 164

Declaration of Melissa Gardner in Support of 147 Administrative Motion to File Under Seal Documents in Support of Facebook's Opposition to Plaintiffs Motion for Class Certification filed byMatthew Campbell, Michael Hurley. (Attachments: # 1 Proposed Order Authorizing the Filing of Documents Under Seal)(Related document(s) 147 ) (Gardner, Melissa) (Filed on 1/22/2016)

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,

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Plaintiff,
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v.
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Case No. C 13-05996 PJH (MEJ)
DECLARATION OF MELISSA GARDNER
IN SUPPORT OF DEFENDANT’S
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL RE DEFENDANT’S
OPPOSITION TO PLAINTIFFS’ MOTION
FOR CLASS CERTIFICATION

FACEBOOK, INC.,
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Defendant.
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Hearing: March 16, 2016, 9:00 a.m.
Location: Courtroom 3, 3rd Floor
Judge:
Honorable Phyllis J. Hamilton

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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I, Melissa Gardner, declare:

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I am an attorney in the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP, a

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member of the State Bar of California. I am admitted to practice before this Court. I am one of

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the counsel for Plaintiffs in this action. I make this declaration based on my own personal

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knowledge. If called upon to testify, I could and would testify competently to the truth of the

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matters stated herein.

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2.

I submit this Declaration in support of Defendant, Facebook, Inc.’s Administrative

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Motion to File Under Seal (Dkt. Nos. 147; 162) for the following documents: Exhibits A, L-W,

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and FF-HH to the Declaration of Christopher Chorba in support of Defendant’s Opposition to

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Plaintiffs’ Motion for Class Certification (Dkt. No 162-3, previously Dkt. No. 149-1; “Chorba

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Declaration”); and portions, specified herein, of (1) the Chorba Declaration, (2) Defendant’s

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Opposition to Plaintiffs’ Motion for Class Certification (Dkt. No. 149), (3) the Expert Witness

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Report of Catherine Tucker (Dkt. No. 162-7, previously Dkt. No. 149-7), and (4) Defendant’s

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Appendix of Evidence (Dkt. Nos. 162-9 and 162-10, previously Dkt. Nos. 155-1, and 156-9).

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3.

Exhibit A to the Chorba Declaration (Exhibit 21 to Defendant’s Motion to Seal) is

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a table through which Defendant characterizes the deposition testimony of six individuals:

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Plaintiffs Matthew Campbell and Michael Hurley, former Plaintiff David Shadpour, and three

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absent Class Members whom Facebook subpoenaed and deposed. Good cause exists to seal the

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entirety of Exhibit A. Under the applicable “good cause” standard, the Court may order records

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sealed or otherwise protected “to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th

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Cir. 2010). Defendant’s table poses a significant risk that the out-of-context “Yes/No” statements

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attributed to each witness will be interpreted by the public and possibly by the press as their own

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affirmative, unqualified statements, resulting in annoyance, embarrassment, or other significant

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harm to the witnesses. The public has no meaningful need to access Defendant’s characterization

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of their testimony. See Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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1213 (9th Cir. 2002) (explaining that “good cause” standard requires “balancing the needs for

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discovery against the need for confidentiality”). Additionally, the absent Class members deposed
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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by Facebook have never sought to place their identities in the public record; such disclosure could

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generate undue, embarrassing, or otherwise burdensome public attention. Mr. Shadpour has

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dismissed his claims in this case, with prejudice (Dkt. No. 123). These witnesses’ testimony, and

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the non-parties’ identities, are entitled to protection under the law in order to protect their privacy

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interests. See O’Connor v. Uber Techs., Inc., No. 13-3826, 2015 WL 355496, at *2 (N.D. Cal.

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Jan. 27, 2015) (quoting G & C Auto Body Inc. v. Geico Gen. Ins. Co., No. 6–4898, 2008 WL

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867372, at *2 (N.D. Cal. Mar. 11, 2008) (finding that a non-party’s privacy interest in

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information with “little or no relevance to the issues raised by [the] summary judgment motions”

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is sufficient to satisfy even the higher “compelling reasons” standard applicable to dispositive

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motions)).
4.

Exhibits L and M to the Chorba Declaration (Exhibits 25 and 26 to Defendant’s

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Motion to Seal) are excerpts from the May 9, 2015 deposition of Matthew Campbell, and excerpts

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from the July 9, 2015 deposition of Michael Hurley, respectively. Plaintiffs designated these

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deposition transcripts Confidential under the operative Protective Order. Plaintiffs withdraw that

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designation with respect to Exhibits L and M, except as to the following portions, which are

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identified by page and line of the deposition:

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Exhibit L (Campbell Deposition Excerpts)
Sealable Portions
19:2-8

Reason for Confidentiality
Text describes Plaintiff’s private conversations with third parties. The
privacy interests of Plaintiff and those third parties outweigh any interest of
the public in the content of these communications.
44:8-9, 19-21, 24Text contains identifying information regarding Mr. Campbell’s
25; 45:1; 63:8, 22- employment and social media activities not relevant to the merits of this
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case or to class certification. The public has no meaningful interest in this
178:15, 25; 222:13; information.
223:4-5; 270:15
20:19; 62:4-10, 13; Text contains identities and personal information of individuals who are not
100:2-6; 101:13;
parties to this case. These non-parties have a privacy interest in protecting
203:13-14; 203:14; their identities and personal information from being made public. The
225:5-24; 226:2, 10, exposure of such information risks subjecting the persons identified to
19-20, 24-25; 230:2- annoyance, embarrassment, or other significant harm, and the public has no
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meaningful need to obtain the information.
13-15, 18-19; 240:2,
8-11; 241:5-6, 12,
17, 20-23; 242:8-13,
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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Sealable Portions Reason for Confidentiality
18, 25; 250:14, 2325; 251:2, 6-7, 18,
24; 252:6, 14, 19,
24; 254:8, 15, 19;
255:2, 9, 13, 15, 17,
19-20; 256:3, 14,
17; 257:11-19, 25
105:24; 106:9, 15- Testimony concerns the contents of Mr. Campbell’s private Facebook
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messages. Mr. Campbell and other correspondents to such messages have a
privacy interest in protecting their correspondence from being made public.
The public has no meaningful need to access the information.

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Exhibit M (Hurley Deposition Excerpts)
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Sealable Portions
117:2-22; 118:924; 120:4-8;
120:14-121:20;
124:13-125:25;
129:5-133:23;
136:6-14, 23-24;
137:1-137:14
92:10-22; 103:3-7 ;
103:10-12; 103:1819; 106:12-107:12;
111:16-112:2;
115:10-24

Reason for Confidentiality
Text contains identities and personal information of individuals who are
not parties to this case who corresponded via private Facebook message
with Mr. Hurley. These non-parties have a privacy interest in protecting
their identities and personal information from being made public. The
exposure of such information risks subjecting the person identified to
annoyance, embarrassment, or other significant harm. The public has no
meaningful need to access the information.
Testimony concerns the contents of Mr. Hurley’s private Facebook
messages. Mr. Hurley and other correspondents to such messages have a
privacy interest in protecting their correspondence from being made
public. The public has no meaningful need to access the information.

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Good cause exists to seal the testimony designated above in order to protect the privacy

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interests of the Plaintiffs and third parties. This testimony concerns the Plaintiffs’ private

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communications and affairs disclosed nowhere else in public filings and not relevant to the merits

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of the case or class certification, and/or the personally identifiable or confidential information of

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non-parties to the case. Publishing this information would expose Plaintiffs and/or these non-

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parties to unnecessary annoyance, embarrassment, or other significant harm, and the public has no

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meaningful need to access it. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1983) (“Much

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of the information that surfaces during pretrial discovery may be unrelated, or only tangentially

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related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet

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admitted, information are not a restriction on a traditionally public source of information.”).

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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5.

Exhibit N to the Chorba Declaration (Exhibit 27 to Defendant’s Motion to Seal)

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contains excerpts from the October 1, 2015 deposition of former Plaintiff David Shadpour.

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Because Mr. Shadpour is no longer a party to this litigation (Dkt. No. 123), good cause exists to

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seal his deposition testimony in its entirety. Publishing the testimony risks exposing Mr.

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Shadpour to embarrassment, annoyance, or other potential harm. No public interest in such

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publication exists, because testimony from a person who is neither a Plaintiff nor entitled to

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recovery of damages in this case is not relevant. C.f., Roberts v. Electrolux Home Prods., Inc., No.

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12-1644, 2013 WL 4239050, at *3 (C.D. Cal. Aug. 14, 2013) (declining to condition named

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plaintiff’s withdrawal upon sitting for a deposition); In re Urethane Antitrust Litig., No. 04-1616,

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2006 WL 8096533, at *2 (D. Kan. June 9, 2006) (“[t]he information Defendants need regarding

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class certification issues may be obtained from the remaining class representatives.”).

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6.

Exhibits O and P to the Chorba Declaration (Exhibits 28-29 to Defendant’s

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Motion to Seal) are Plaintiff Matthew Campbell’s Corrected Objections and Responses to

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Defendant Facebook, Inc.’s First Set of Interrogatories, and Plaintiff Michael Hurley’s Objections

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and Responses to Defendant Facebook, Inc.’s First Set of Interrogatories, respectively. Plaintiffs

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designated these discovery responses Confidential under the operative Protective Order.

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Plaintiffs withdraw that designation for Exhibits O and P, except for the following portions,

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which contain personally identifiable information regarding the Plaintiffs’ e-mail addresses,

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telephone numbers, and social media accounts: lines 3:20-24; 6:11-26 of Exhibit O, and lines

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3:18-21; 6:9-18 of Exhibit P. Such personal information is entitled to protection under the law,

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and good cause exists to keep it confidential to protect Plaintiffs’ privacy interests, and to protect

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against exposure to harm or identity theft. See e.g., Brewer v. Gen. Nutrition Corp., No. 11-3587,

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2014 WL 5873328, at *2 (N.D. Cal. Nov. 12, 2014).

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Exhibit Q to the Chorba Declaration (Exhibit 30 to Defendant’s Motion to Seal) is

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former Plaintiff David Shadpour’s Corrected Objections and Responses to Defendant Facebook,

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Inc.’s First Set of Interrogatories. As discussed above, because Mr. Shadpour is no longer a party

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to this litigation, good cause exists to seal his discovery responses in their entirety. Publication of

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such information could expose Mr. Shadpour to annoyance, embarrassment, or other potential
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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harm. Information concerning a person who is neither a Plaintiff nor entitled to recovery of

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damages in this case is not relevant; thus, no public interest in access to such testimony exists.

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Exhibit R to the Chorba Declaration (Exhibit 5 to Defendant’s Motion to Seal) is

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a letter from Plaintiffs’ counsel David Rudolph to Defendant’s counsel Joshua Jessen, dated April

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10, 2015. Good cause exists to seal the information on page 1 of Exhibit R (the text between

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“contained,” and “detailed”), which reflects data obtained from private correspondence that Mr.

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Campbell produced in discovery. Mr. Campbell has a right to privacy in his private

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correspondence; the public has no meaningful need to access it. Plaintiffs withdraw the

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confidentiality designation for Plaintiffs’ Supplemental Interrogatory responses (on page 2 of

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Exhibit R).
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Exhibits S, T, and U to the Chorba Declaration (Exhibits 31-33 to Defendant’s

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Motion to Seal) contain the partially redacted private Facebook messages of Plaintiff Matthew

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Campbell, and show the names, dates, and URLs associated with each private message.

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Exhibit V (Exhibit 34 to Defendant’s Motion to Seal) is a partially redacted version of Plaintiff

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Michael Hurley’s private Facebook messages, showing the same information. The exposure of

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such information risks subjecting Plaintiffs and their non-party correspondents to annoyance,

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embarrassment, or other significant harm, and the public has no meaningful need to view these

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private messages. For the same reasons, good cause exists to seal the designated text in

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Exhibit W to the Chorba Declaration (Exhibit 7 to Defendant’s Motion to Seal); it is a subset of

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the information contained in Exhibits S and T (correspondent’s name, date and time, and URL

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contained in private messages), organized into table format.

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10.

Exhibit FF, GG, and HH to the Chorba Declaration (Exhibits 35-37 to

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Defendant’s Motion to Seal) are excerpts from third party depositions taken by Facebook of

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individuals who sent or received private messages from Plaintiffs. These depositions were taken

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on August 7, 2015 (Ex. FF), August 10, 2015 (Ex. GG), and August 11, 2015 (Ex. HH). These

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individuals have not sought to put their identities in the public domain, nor does the public have a

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substantial interest in their deposition testimony, even as it regards the subject of this litigation.

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Information regarding how absent class members use Facebook is easily obtainable from other
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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sources without subjecting these individuals to the annoyance, embarrassment, and other

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significant potential harm of having their identities and testimony put into the public domain and

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subject to public dissemination and critique. See Uber Techs., 2015 WL 355496, at *2; Chavez v.

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Petrissans, No. 8-122, 2008 WL 4177797, at *6 (E.D. Cal. Sept. 5, 2008) (ordering that records

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containing contact information for potential class members be sealed); c.f., In re High-Tech

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Employee Antitrust Litig., No. 11-2509, 2013 WL 163779, at *8 (N.D. Cal. Jan. 15, 2013)

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(granting motion to seal documents containing “the identities of associated non-parties such as

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individuals who acted as Plaintiffs’ references” for job applications in employment wage-fixing

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case).

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Good cause exists to seal the following portions of the Chorba Declaration

(Exhibit 3 to Defendant’s Motion to Seal):
Sealable Portions Reason for Confidentiality
2:12
Text contains data obtained from private correspondence produced by Mr.
Campbell in discovery. Mr. Campbell has a right to privacy in his private
correspondence. The public has no meaningful need to access it.
2:17
Text contains data obtained from private correspondence produced by Mr.
Hurley in discovery. Mr. Hurley has a right to privacy in his private
correspondence. The public has no meaningful need to access it.
2:22
Text contains data obtained from private correspondence produced by
former Plaintiff in discovery. The former Plaintiff’s discovery responses are
irrelevant to this litigation. He has a right to privacy in his private
correspondence. The public has no meaningful need to access it.
3:18-19; 3:20-21; Text describes and quotes from Mr. Campbell’s private conversations which
4:1-2; 4:3-7
were disclosed to Facebook in discovery subject to objections, and provides
information concerning Mr. Campbell’s online activities. Mr. Campbell has
a right to privacy in his private communications. The public has no
meaningful need to access the content of such communications.
5:16-20; 5:23-25
Text contains dates and contents of private Facebook messages between
Plaintiffs and third parties, and the names of such third parties. The
exposure of such information risks subjecting the persons identified in
these documents to annoyance, embarrassment, or other significant harm,
and the public has no meaningful need to obtain the information.
12:14, 16, 18
Text contains identification of non-parties to this litigation, which should
be sealed to protect their privacy interests.
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Plaintiffs withdraw the confidentiality designation applicable to the following text

within the Chorba Declaration: 3:2-11, 3:17-18.

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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Good cause exists to seal the following portions of Defendant’s Opposition to

Plaintiffs’ Motion for Class Certification (Exhibit 1 to Defendant’s Motion to Seal):

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Sealable Portions
2:17-18

Reason for Confidentiality
Text is characterization of testimony from the deposition of a former party
to the case. The public has no meaningful need to view Defendant’s
characterization of such testimony, and such publication risks causing
annoyance, embarrassment, or other potential harm to the witness.
2:24-26
Excerpts of testimony from the deposition of former party to the case. The
public has no meaningful need to access the testimony, which is not
relevant due to former Plaintiff’s dismissal of his claims, with prejudice.
Such publication risks causing annoyance, embarrassment, or other
potential harm to the witness.
4:12-13 (to
Text contains quotes from Mr. Campbell’s private Facebook message,
“Counsel”)
which has not been publicly disclosed. Plaintiff has a privacy interest in the
contents of his private correspondence. The public has no meaningful need
to access it.
7:22
Text contains identification of non-parties to this litigation, which should be
sealed to protect their privacy interests.
11:19-22; 20:12-13, Text contains characterizations of testimony from the depositions of
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Plaintiffs and non-parties, as well as names of non-parties, risking
annoyance, embarrassment, and other potential harm to the witnesses.
Witnesses have a privacy interest in their testimony, and non-parties have a
privacy interest in publication of their identities. The public has no
meaningful need to access Defendant’s characterization of the witnesses’
testimony, or the identities of non-parties.
16:3-4, 14-24, 26
Excerpts of testimony from the deposition of a former party. The public has
no meaningful need to access the testimony, which is not relevant due to the
former Plaintiff’s dismissal of his claims, with prejudice.
21:15-19
Text contains characterizations of testimony from the depositions of
Plaintiffs and non-parties, risking annoyance, embarrassment, and other
potential harm to the witnesses. Witnesses have a privacy interest in their
testimony. The public has no meaningful need to access Defendant’s
characterization of the witnesses’ testimony.
23:7-10 (figure)
Figure represents a private message belonging to Matthew Campbell
showing the name of a non-party, date, time, and URL contained within the
message. Mr. Campbell and the non-party have a privacy interest in the
content of such messages. The public has no meaningful need to access it.
26:10-12
Text contains data obtained from Plaintiffs’ private messages produced in
discovery. Plaintiffs have a privacy interest in the content of such messages.
The public has no meaningful need to access it.
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Plaintiffs withdraw the confidentiality designation applicable to the following text

within Defendant’s Opposition to Plaintiffs’ Motion for Class Certification: 3:16-17; 4:9-11; 4:13

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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(from “Counsel”)-17; 7:20-21; 11:8-9; 12:18-22; 14:21-23; 15:15-16, 24-25; 16:1-2; 21: 7-9; and

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30:2-3, 5-6.

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15.

Good cause exists to seal the following portions of the Expert Witness Report of

Catherine Tucker (Exhibit 66 to Defendant’s Motion to Seal):

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Sealable Portions
11, ¶ 32; 12
(figure); 12, ¶ 33;
13 (figure); 14,
¶ 34, lines 3-6; 14,
n.25, 14, n.27; 16,
n.32; 20, ¶ 48-21,
line 4; 21, n.43;
22, ¶ 52, 22, ¶ 53;
23, ¶ 54 ;23,
figure; 29, ¶ 70;
30, figure; 31,
figure; 31, n.63;
32, ¶ 72; 32, n.64;
32, n.6545, lines 610, n.119; 52,
¶ 121; 45
18, ¶ 45-19, line 2;
19, line 4; 19, n.39;
19, n.40

Reason for Confidentiality
Text and figures are depictions of, discussions of, or representations of data
contained within messages produced by Plaintiffs in discovery. Plaintiffs
have a privacy interest in the content of such messages. The public has no
meaningful need to access it.
Insofar as the text and figures identify nonparties to the litigation they should
be sealed for the additional reason that such non-parties have a privacy
interest in publication of their identities and in their private correspondence.

Text specifically identifies online activities of Mr. Campbell. Mr.
Campbell’s right to privacy in that information outweighs any public interest
in access to it.

24, ¶ 56

Excerpts of testimony from deposition of former Plaintiff. The public has no
meaningful need to access the testimony, which is not relevant due to the
former Plaintiff’s dismissal of his claims, with prejudice.
23, n.46; 24, ¶ 57, Text contains characterizations of testimony from depositions of Plaintiffs
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and non-parties, risking annoyance, embarrassment, and other potential
harm to the witnesses. Witnesses have a privacy interest in their testimony.
The public has no meaningful need to access Defendant’s characterization
of the witnesses’ testimony. Non-parties, additionally, have a privacy
interest in publication of their identities.
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Plaintiffs withdraw the confidentiality designation applicable to the following text

within the Expert Witness Report of Catherine Tucker: 29, ¶ 71; 25, ¶ 59.
17.

Good cause exists to seal the following portions of Defendant’s Appendix of

Evidence: App. 2079 (Dkt. No. 162-9) at lines 8, 11, and 15, and Index 2:16-19 (Dkt. 162-10),

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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because those portions identify by name absent class members in this litigation, who, as discussed

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above, have a privacy interest in preventing the publication of their identities.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 22nd day of January, 2016, in San Francisco, California.

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

/s/Melissa Gardner
Melissa Gardner

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF DEFENDANT’S MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)