Campbell et al v. Facebook Inc.

Filing 169

Administrative Motion to File Under Seal Documents In Support of Its Objection to and Request to Strike New Evidence and Misstatements of Fact Contained in in Plaintiffs Reply in Support of Their Motion for Class Certification filed by Facebook Inc.. (Attachments: # 1 Declaration of Nikki Stitt Sokol in Support of Defendant Facebook Inc.s Administrative Motion to File Documents In Support of Its Objection to and Request to Strike New Evidence and Misstatements of Fact Contained in Plaintiffs Reply in Support of Their Motion for Class Certification Under Seal, # 2 [Proposed] Order Authorizing the Filing of Documents Under Seal, # 3 Proof of Service, # 4 Exhibit 1 (Unredacted), # 5 Exhibit 2 (Redacted), # 6 Exhibit 3 (Unredacted), # 7 Exhibit 4 (Redacted), # 8 Exhibit 5 (Unredacted), # 9 Exhibit 6 (Redacted))(Chorba, Christopher) (Filed on 2/26/2016)

EXHIBIT 2
REDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
PRIYANKA RAJAGOPALAN, SBN 278504
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MATTHEW CAMPBELL and MICHAEL
HURLEY,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH
DEFENDANT FACEBOOK, INC.’S
OBJECTION TO AND REQUEST TO
STRIKE NEW EVIDENCE AND
MISSTATEMENTS OF FACT
CONTAINED IN PLAINTIFFS’ REPLY IN
SUPPORT OF THEIR MOTION FOR
CLASS CERTIFICATION
HEARING:
Date:
March 16, 2016
Time:
9:00 a.m.
Location: Courtroom 3, Third Floor
The Honorable Phyllis J. Hamilton

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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Recognizing that their moving papers fall well short of establishing that this case falls within

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the narrow “exception to the usual rule that litigation is conducted by and on behalf of the individual

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named parties only,” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013), Plaintiffs improperly

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submitted brand new evidence and argument in their Reply brief, including an unauthorized expert

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report. Under well-settled law, the Court should not consider Plaintiffs’ new evidence (which fails to

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satisfy their Rule 23 burden in any event), and Facebook respectfully requests that the Court strike it

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pursuant to Local Rule 7-3(d)(1). Alternatively, if the Court does not strike Plaintiffs’ new evidence,

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Facebook asks the Court to consider the attached declarations of Facebook employees Alex Himel

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and Dale Harrison responding to certain aspects of Plaintiffs’ new evidence.

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I. THE COURT SHOULD STRIKE PLAINTIFFS’ NEW REPLY EVIDENCE
It is well-settled that courts should not consider arguments and evidence raised for the first

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time on reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not

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consider arguments raised for the first time in a reply brief.”); Roe v. Doe, No. 09-0682-PJH, 2009

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WL 1883752, at *5 (N.D. Cal. June 30, 2009) (“It is well accepted that raising of new issues and

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submission of new facts in [a] reply brief is improper.”); Harrold v. Experian Info. Solutions, Inc.,

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No. 12-02987-WHA, 2012 WL 4097708, at *4 n.2 (N.D. Cal. Sept. 17, 2012) (“Sandbagging with a

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new legal theory in a reply brief will not be tolerated.”); Rodan & Fields, LLC v. Estee Lauder Cos.,

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No. 10-02451-LHK, 2010 WL 3910178, at *4 n.2 (N.D. Cal. Oct. 5, 2010) (disregarding “new facts,

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evidence, and argument [which] should not be submitted for the first time in a Reply”).

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Here, Plaintiffs have submitted an entirely new and unauthorized “Rebuttal” expert report of

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Dr. Jennifer Golbeck (Dkt. 166-7 & Dkt. 167-1 Ex. 1). This report should be stricken in its entirety.

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In the agreed-upon case schedule set forth in their Joint Case Management Statement that was the

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basis for the Court’s Scheduling Order (Dkt. 62), the parties agreed that Plaintiffs would file “all

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supporting declarations, evidence, and other papers” at the time they filed their Motion for Class

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Certification, and Facebook, in turn, would file its “supporting declarations, evidence, and other

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papers” when it filed its Opposition. (Dkt. 60 at 14 (emphasis added).) The parties did not

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contemplate presenting, nor did this Court authorize the submission of, new declarations or other

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evidence on reply, which is prohibited by well-settled case law and the local rules. See supra p. 1;
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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N.D. Cal. L.R. 7-3(d)(1).

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In keeping with the procedure agreed to by the parties and authorized by the Court, Plaintiffs

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submitted an expert report from Dr. Golbeck when they filed their Motion for Class Certification on

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November 13, 2015 (Dkt. 138-4, Ex. 2), and Facebook submitted the rebuttal report of Dr. Benjamin

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Goldberg with its Opposition papers on January 15, 2016 (Dkt. 149-4). But now, in connection with

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their Reply brief, Plaintiffs have filed a second, and completely unauthorized, report from Dr.

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Golbeck, which they characterize as a “rebuttal” report. In fact, it is not a “rebuttal” report at all—

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Dr. Golbeck proposes an entirely new method for ascertaining the proposed class, from an entirely

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new data source (which she refers to as the “

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”), mentioned nowhere in her first report

or Plaintiffs’ Motion. This is indefensible.
Plaintiffs have no basis to contend that Dr. Golbeck is relying on “new” evidence that was

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unavailable when they filed their Motion and Dr. Golbeck’ initial report. For instance, Dr. Golbeck’s

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entirely new ascertainability query in her new report relies upon records—i.e., the “

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that were produced to Plaintiffs well before their Motion was due. Indeed, the key document upon

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which they rely (Exhibit 7 to the Slade Declaration, Dkt. 166-15) is a

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Plaintiffs to illustrate Dr. Golbeck’s proposed new query) that was produced to Plaintiffs in early

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September—two and a half months before they filed their Motion. Yet neither Plaintiffs nor Dr.

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Golbeck said anything about this document in the Motion or initial expert report.

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”—

(highlighted by

The same is true of several other portions of Dr. Golbeck’s new report. For example, in her
initial report, Dr. Golbeck claimed that Facebook

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(Dkt. 138-4, Ex. 2 ¶¶ 44-50.) Facebook submitted evidence in its Opposition

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that this

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accordingly,

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(App. at 1523.) Now, in her new report, Dr. Golbeck concedes the point yet cites to a similarly-

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named but entirely different

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(based on her review of three-year-old source code) shows that Facebook is “still intercepting and

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Crutcher LLP

was deleted before the beginning of the class period, and that
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—that she claims

URLs sent in Private Messages.” (Dkt. 166-7 ¶ 28.) In support, she relies upon source code
that Plaintiffs had access to since late July 2015 and which they reviewed for a collective total of
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DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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more than 60 days before they filed their Motion and Dr. Golbeck’s initial report. (See, e.g., id. at 11

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n.24.)

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In short, no second report by Dr. Golbeck—“rebuttal” or otherwise—was authorized by the

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Court (and certainly not a report based on information Plaintiffs had when they filed their Motion),

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and the new report should be stricken. See, e.g., In re Wal-Mart Wage & Hour Litig., No. 06-00225,

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2008 WL 3179315, at *11 (D. Nev. June 20, 2008) (striking new expert report accompanying

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plaintiffs’ class certification reply because it “reflects a new analysis which was not part of [the

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expert’s] initial report”); Docusign, Inc. v. Sertifi, Inc., 468 F. Supp. 2d 1305, 1307 (W.D. Wash.

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2006) (striking supplemental expert declaration that was “inappropriate for Reply”); Cotton v. City of

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Eureka, Cal., 860 F. Supp. 2d 999, 1028 n.16 (N.D. Cal. 2012) (“It is improper [] to submit new

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factual information in a reply brief,” including reply declarations that attempt “to rectify [certain]

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evidentiary deficiencies”).1

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As a result, Facebook specifically requests that the Court strike (1) the new Golbeck report in

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its entirety, (2) all portions of Plaintiffs’ Reply brief (Dkt. 167) that cite to or rely on the new

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Golbeck report (specifically, pages 5:26-6:7; 6:10-13; 6 fns. 8-10; & 8:19-21 of the Reply brief), and

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(3) Exhibits 7, 14, 15, 16, 17, 18, 19 & 20 to the David Slade Declaration (Dkt. 167-1), which are the

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newly-filed “

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.”

If the Court declines to strike this information, Facebook should be permitted to respond via
the attached Declarations of Facebook Engineers Alex Himel and Dale Harrison.2 As explained in
Notably, Plaintiffs sought to extend the class certification deadlines by three months (Dkt. 109),
but the Court granted only a one-month extension and ruled that “[n]o further extension of these dates
will be granted.” (Dkt. 117.) Plaintiffs then sought a second extension (Dkt. 134), which the Court
denied (Dkt. 136). By submitting additional evidence three months after the deadline, Plaintiffs are
circumventing the previous orders and taking for themselves the additional time they did not receive.
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See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (holding that the district court erred
by failing to consider a party’s supplemental declaration rebutting new evidence raised in the reply
brief because “[s]uch a result would be unfair” and “the district court should not consider the new
evidence without giving the [non-]movant an opportunity to respond”); Perez v. Saks & Co., No. 142512-PJH, 2014 WL 4060306, at *4 (N.D. Cal. Aug. 14, 2014) (granting defendant’s motion to file a
sur-reply to respond to new arguments in plaintiffs’ reply brief); U.S. v. Cathcart, No. 07-4762-PJH,
2009 WL 1817006, at *2 (N.D. Cal. June 24, 2009) (“[T]o the extent that new evidence is submitted
by any party in a reply brief, the court is mindful that such evidence should not be considered without
affording the opposing party an opportunity to respond.”); Banga v. Experian Info. Sols., Inc.,
No. 09-04867-SBA, 2013 WL 5539690, at *3 (N.D. Cal. Sept. 30, 2013) (“If a party raises a new
[Footnote continued on next page]
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DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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those declarations, Dr. Golbeck’s new proposed query for ascertaining members of the proposed class

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fares no better than her old query, and Dr. Golbeck is simply wrong that the brand new file identified

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for the first time in her new report shows that Facebook was

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during the proposed class period. (Himel Decl. ¶¶ 3-10; Harrison Decl. ¶¶ 37.)3
II. THE COURT SHOULD STRIKE MISREPRESENTATIONS CONTAINED IN
PLAINTIFFS’ REPLY BRIEF
As they did in their Motion, and has been an unfortunate pattern in this case (see, e.g.,
Dkt. 114 at 3; Dkt. 149-1 ¶¶ 21-23), Plaintiffs also have included a number of troubling
misstatements of fact in their Reply that should be stricken.
Most glaringly, Plaintiffs’ Reply brief alters the earlier sworn testimony of Mr. Harrison, who
submitted a declaration in connection with a discovery dispute. For context, Mr. Harrison submitted
a declaration last fall in connection with a discovery dispute regarding whether Facebook should be
required to undertake the time and expense necessary to identify every potential “object” created
during the processing of a message (Plaintiffs’ position) or only those “objects” related to URLs sent
in messages (Facebook’s position, based on the allegations in Plaintiffs’ operative complaint and
proposed class). Mr. Harrison testified about the extensive work he had undertaken (more than 25
hours) just to identify the objects (if any) created in connection with the sharing of URLs in 19
specific messages Plaintiffs had identified for Facebook. (Dkt. 126-1 ¶¶ 13-18.)
In their Reply brief, in support of their knowingly false arguments that “[t]he full extent of
Facebook’s scanning practices is still unknown” and “Facebook admits that its redirection of
intercepted message content is limitless,” Plaintiffs claim that Mr. Harrison said that “identifying
every use of message content ‘would require consulting with engineers in every group who have
[Footnote continued from previous page]
argument or presents new evidence in a reply brief, a court may consider these matters only if the
adverse party is given an opportunity to respond.”).
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Facebook does not respond at this time to all the new facts and arguments raised by Dr. Golbeck.
If the report is not stricken, however, Facebook may seek leave of Court to submit additional
evidence to rebut her contentions.

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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worked on every past or present product or feature at Facebook.’” (Dkt. 167 at 10 (emphasis added).)

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But Plaintiffs have altered Mr. Harrison’s actual words and omitted material portions of his testimony

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to misrepresent what he said. As noted, the discovery dispute did not involve “message content,” nor

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did Mr. Harrison testify about that subject. Here is what he actually said in his discovery declaration,

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with the relevant portions that Plaintiffs have altered and omitted bolded for emphasis:

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19. I understand that Plaintiffs also seek all other Objects related to each of the 16
messages that I was able to identify. This is likely impossible. If ordered to do so,
I would first have to attempt to ascertain the identity of every Object or
Association that could possibly be generated from a message, which may require
consulting with engineers in every group who have worked on every past or
present product or feature at Facebook (thousands of individuals) to find out
what Objects each engineer believes can be generated as a result of their work
at Facebook, and whether any of those Objects could be generated from
sending a message. This also would require consulting former employees who
would have this information. As a part of this exercise, I would also have to try to
ascertain where in the Facebook system each of these types of Object may exist.

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(Id. ¶ 19.) In short, Mr. Harrison: (1) was addressing a discovery dispute regarding the burden of

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collecting all “Objects” and “Associations” from the messages that Plaintiffs selected for further

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discovery; (2) was not addressing “message content” at all; and (3) said that this exercise “may

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require” (not “would require”) consultation with other engineers. The Court should strike the

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misstatement in Plaintiffs’ Reply (specifically, page 10:19-22).

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Facebook will be prepared to address the other misstatements in Plaintiffs’ Reply at the

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March 16 hearing.

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Dated: February 26, 2016

Respectfully submitted,

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/
Christopher Chorba
Attorneys for Defendant FACEBOOK, INC.

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OBJECTION TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS
OF FACT CONTAINED IN PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH