Campbell et al v. Facebook Inc.

Filing 172

RESPONSE to re 170 Objection,,, Plaintiffs' Response to Defendant's Objection to and Request to Strike New Evidence and Misstatements of Fact by Matthew Campbell, Michael Hurley. (Sobol, Michael) (Filed on 3/9/2016)

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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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OAKLAND DIVISION

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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,
Plaintiff,

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FACEBOOK, INC.,

PLAINTIFFS’ RESPONSE TO
DEFENDANT’S “OBJECTION TO AND
REQUEST TO STRIKE NEW EVIDENCE
AND MISSTATEMENTS OF FACT”

v.

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Case No. C 13-05996 PJH (MEJ)

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Defendant.

Date:
Time:
Judge:
Place:

March 16, 2016
9:00 a.m.
Hon. Phyllis J. Hamilton
Courtroom 3, 3rd Floor

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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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I.

INTRODUCTION

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Facebook mischaracterizes Plaintiffs’ reply to Facebook’s opposition to class certification

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as presenting “new evidence,” in order to file an additional eleven pages of unauthorized surreply

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argument in an apparent end-run around this Court’s order limiting Facebook’s briefing on this

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motion. See Dkt. 146 (denying Facebook’s request for an additional 15 pages, but allowing an

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additional 5 pages, of briefing). Plaintiffs’ reply offers no new evidence, but rather replies to

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arguments raised by Facebook, drawing on the existing evidentiary record to counter Facebook’s

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arguments. Facebook’s Objection to this supposed “new evidence” includes argument by counsel

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and two declarants which—while ultimately nowhere refuting that Facebook collects and exploits

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users’ private information or that it maintains the

identifying all those

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users—improperly go to the merits of these issues. Accordingly, Plaintiffs respectfully submit

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that the Court should overrule Facebook’s objection and strike the surreply argument and

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declarations, or, in the alternative, grant leave to Plaintiffs to file additional materials to address

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Facebook’s mischaracterizations contained therein.

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II.

ARGUMENT

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A.

Facebook’s Objection is Procedurally Improper.

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Facebook violates Civil L.R. 7-3(d)(1)’s unambiguous requirement that any Objection to

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Reply Evidence “may not include further argument on the motion.” Facebook’s Objection,

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including the declarations, constitutes “argument on the motion.” Indeed, the Objection itself

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acknowledges that Facebook engages in argument concerning the underlying issues, and actually

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threatens the possibility that it may file further argument in the future.1 Here, Facebook does

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more than “straddle the line between objections and argument,” but rather engages in unabashed

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argument. Ross v. Ecolab Inc., No. 13-5097, 2015 WL 5681323, at *15 (N.D. Cal. Sept. 28,

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2015) (Hamilton, J.) (finding that the specific evidentiary objections in that case did not constitute

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surreply argument).2 The Declaration of Dale Harrison argues at length regarding the

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See Dkt. 169-5 (FB Objection), at 4 n. 3 (“Facebook does not respond at this time to all the new
facts and argument raised by Dr. Golbeck. . . . Facebook may seek leave of Court to submit
additional evidence to rebut her contentions”) (emphasis added).
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Plaintiffs’ counsel acknowledge that Plaintiffs’ reply brief erroneously (and unintentionally)
contains a misplaced quotation mark when quoting a statement from a declaration of Dale
Footnote continued on next page
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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infeasibility of identifying class members, albeit based on a blatant mischaracterization of Dr.

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Golbeck’s method. See, e.g., Dkt. 170-2, at 1, ¶3 (taking issue with the “assumptions” used by

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Dr. Golbeck). The Declaration of Alex Himel misinterprets Dr. Golbeck’s method as requiring a

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three step query, making it unworkable. See Dkt. 170-1, at 2, ¶6. While Facebook’s arguments

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lack merit, they nonetheless constitute arguments, and therefore its Objection is improper.

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Laced with argument, Facebook’s Objection is nothing less than improper surreply.

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Carr v. Allied Waste Sys. of Alameda Cnty., No. 10-715, 2011 WL 4047495, at *7 (N.D. Cal.

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Sept. 8, 2011) (Hamilton, J.), aff’d on other grounds, 516 F. App’x 677 (9th Cir. 2013) (denying

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request to file “Additional Information to Address Misleading Facts Made by Defendant” as

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improper attempt to submit a surreply). As unauthorized surreply, Facebook’s Objection also

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violates the spirit of the Court’s order denying its request for additional 15 pages of opposition

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briefing. After consideration, the Court found that Facebook “has not adequately supported its

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request for an additional 15 pages.” Dkt. 146 (Order), at 1. The Court did allow an additional 5

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pages of briefing, which Facebook used in its opposition. Particularly in the face of this order,

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Facebook should have sought leave prior to filing new briefing. Roe v. Doe, No. 9-682, 2009 WL

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1883752, at *5 (N.D. Cal. June 30, 2009) (Hamilton, J.); Civ. L.R. 7–3(d) (“Surreplies are not

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authorized without first obtaining leave of court”; once a reply brief is filed, no additional

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memoranda may be filed without court approval).

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Facebook’s Objection is procedurally improper and therefore the Court should strike it.

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Footnote continued from previous page
Harrison offered earlier in the proceedings in connection with a discovery dispute. At page 10
line 20, the reply brief should have read “would ‘require consulting with engineers in every group
. . . ’” rather than read “‘would require consulting with engineers in every group. . . ’”. Plaintiffs’
counsel apologize for this inadvertent error. Although Mr. Harrison’s declaration literally states
that identifying every use of message content “may” require consultation with all these engineers,
Plaintiffs nonetheless disagree with Facebook’s assertion that Mr. Harrison’s testimony was
substantively misrepresented. The clear implication of his testimony is that identifying all the
uses Facebook makes of Private Messages is an enormous if not impossible task. After all, Mr.
Harrison never explains how it “may not” be the case that one would need to consult with
engineers in every group. Apparently, Mr. Harrison meant to leave the impression that it “would”
be the case, when offering testimony to obstruct discovery, but now in the context of class
certification invokes his lawyers’ use of the word “may” to back off the intended meaning.
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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B.

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Facebook Could And Should Have Raised Its Surreply Points in Its
Opposition.

Facebook’s Objection contains numerous substantive assertions that respond to material

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raised in Plaintiffs’ opening brief, not the rebuttal brief. For example, in Alex Himel’s

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declaration he asserts the “impossib[ility]” of querying

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Dr. Golbeck’s query identified in her opening report and is not related to her rebuttal analysis.

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Dkt. 170-1 (Feb. 26, 2016 Himel Decl.), at 1, ¶5. Mr. Himel also argues that

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but this is purely in response to

, and also states (without evidence or elaboration) that “

play

a critical role in a number of ways—including

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.” Id., at 3, ¶10. This testimony is directly

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related to Facebook’s expert Dr. Goldberg’s opposition opinions (and indeed that was the very

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testimony to which Dr. Golbeck was responding (see Dkt. 167-1, Ex. 1 (Golbeck Rebuttal

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Report), at 10, ¶24), and therefore could and should have been included with Facebook’s

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opposition. Similarly, Dale Harrison’s declaration repeats arguments Facebook made through its

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opposition regarding

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to Dr. Golbeck’s rebuttal opinions. Dkt. 170-2 (Feb. 26, 2016 Harrison Decl.), at 4, ¶7, bullet

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point 4. Accordingly, Facebook’s arguments contained in its Objection should have been

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presented in its Opposition, and are not the proper subject of surreply.

, and therefore does not reply

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C.

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Facebook cannot assert that there is anything improper with filing Dr. Golbeck’s Rebuttal

Dr. Golbeck’s Rebuttal Report Contains No “New Evidence.”

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Report on reply, so therefore asserts that the rebuttal report contains “new evidence.” See Civ.

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L.R. 7–3(c) (“Any reply to an opposition may include affidavits or declarations . . . .”). To the

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contrary, Dr. Golbeck’s rebuttal simply addresses arguments raised by Facebook in its opposition,

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relying on the record of the case. Therefore, Dr. Golbeck’s rebuttal presents nothing new, and

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does not present any occasion for Facebook to file a surreply.

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The

Contrary to Facebook’s assertion, Dr. Golbeck’s Rebuttal Report does not present a new
methodology to identify class members. Instead, in direct reply to Facebook’s challenges, the
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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Rebuttal Report provides clarification and context to the “

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specifically described in her initial expert report. Dkt. 138-4, Ex. 2 (Golbeck Report), at 28, ¶103

” that Dr. Golbeck

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.”); Id., at ¶104

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(“

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new data source,” as Facebook wrongly asserts, Dr. Golbeck references the

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that Facebook retrieved for the Representative Plaintiffs as the same type of information needed

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to identify the absent class members. See Dkt. 126-1 (Oct. 6, 2015 Harrison Decl.), at 2, ¶5

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(stating that Harrison was “able to extract” the

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.”). Rather than identifying “an entirely

for the Named Plaintiffs).

Facebook’s feigned surprise can hardly be credited—

confirms that the

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relevant Private Message data resides on Facebook’s system. First, as early as June 1, 2015,

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Facebook declarant Alex Himel explained that
FB App.3 1607 (June 1, 2015 Himel Decl.), at 1613. Similarly, Facebook

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produced what it, itself, calls

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See FB App. 1535 (Facebook’s Second Suppl. Resps. and Objs. to Pltfs.’ Narrowed Second Set of

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Interrogatories), at 1553

for the Named Plaintiffs’ intercepted Private Messages.

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(emphasis added), and Ex. A thereto, at

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1555.4 In other words, obtaining the Private Message data that Facebook indisputably stores

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would most logically occur via the

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representations and characterizations of the data it has produced, thus far. Dr. Golbeck’s Rebuttal

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Report simply reiterates this point, mentioning

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own witnesses already had.

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, based upon Facebook’s own

by name, just as Facebook’s

Dr. Golbeck’s clarification that her methodology relies on the existence of

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is the necessary by-product of Facebook’s misleading implication that certain data

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Citations to “FB App.” are to the Appendix of Evidence filed by Facebook in connection with
its opposition to Plaintiffs’ Motion for Class Certification.
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Dr. Golbeck lists Facebook’s interrogatory responses which reference the
in her
initial report, as did Plaintiffs in their opening motion. See Dkt. 138-4, Ex. 2 (Golbeck Report), at
Ex. B; Dkt. 138 (Motion for Class Certification), at 13.
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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fields do not exist in its attempt to confuse the most commonsense and elemental steps in a

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straightforward, objective process. Dkt. 149 (FB Opp. Br.), at 14 (claiming that Dr. Golbeck’s

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proposal did not entail searching data sufficient to identify certain class members). The Rebuttal

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Report merely pointed out what Facebook already knew (but chose to ignore) when it claimed

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that the methodology would yield incomplete results. Namely, Dr. Golbeck clarified that

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contains the needed data, specifically:

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Dkt. 167-1,

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Ex. 1 (Golbeck Rebuttal Report), at 2, ¶8. Nowhere does Facebook claim that any other

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information would be required to properly identify the members of the class. Dr. Golbeck has not

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changed her methodology—it remains the same sound, workable procedure that was articulated in

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the initial expert report. She has simply attempted to remedy Facebook’s misdirection.

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Facebook’s newly-submitted complaints that compiling the class list from Private

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Message data would be “impossible” are untimely and incorrect. See Dkt. 170-1 (Feb. 26, 2016

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Himel Decl.), at 1 ¶5. Dr. Golbeck’s opening and rebuttal reports simply state that because

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Facebook stores the relevant data associated with users’ Private Messages, “[a] database query

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could be used

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.” Dkt. 138-4, Ex. 2 (Golbeck Report), at 28, ¶¶103-104. With respect to
each interception at issue in this case, Facebook’s source code creates an

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.5 These relevant

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. The messages which have such

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will themselves have a

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needed to identify class members. In what has to be

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labeled a blatant mischaracterization, Facebook states that Dr. Golbeck’s method requires the

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Improperly arguing the merits in its Objection, Facebook asserts that
specific
to URL attachments in private messages cannot be uniquely identified. See, e.g., Dkt. 170-2
(Feb. 26, 2015 Harrison Decl.), at 2, ¶6. Dr. Golbeck disagrees, based on her review of
Facebook’s source code, which shows that
attributes include those which show the
presence of a
. See Dkt. 167-1, Ex. 1 (Golbeck Rebuttal Report), at 2, ¶8;
Dkt. 138-4, Ex. 2 (Golbeck Report), at 27, ¶99.
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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assembly of a

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pertinent to the class or not. But the subject of the query, as laid out with example query code in

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Dr. Golbeck’s opening report, is for the relevant

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(Golbeck Report), at 28, ¶104. The resulting query would identify

whether they were

. Dkt. 138-4, Ex. 2

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See id., at 28, ¶103; Dkt. 167-1, Ex. 1 (Golbeck Rebuttal Report), at 2, ¶9. Dr.
Golbeck’s statement that
(id.) just means that

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. Thus, the parade of impossibilities Facebook marches out relies upon a
deceptively false premise.
Accordingly, it is of no consequence that

was not referred to by name,

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as it was described in substance, and Facebook was of course well aware of its existence. When

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Facebook challenged the ability to use

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further specifics from the previous disclosed record.

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, Dr. Golbeck properly replied with

2.
Plaintiffs have set forth evidence showing that Facebook scans Private Messages while in

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transit to create

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those representing the

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later use unrelated to sending the message. As set forth in Dr. Golbeck’s opening report, one

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such place this Private Message content is sent to

, including
, which is redirected through discrete code for

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. In its
opposition, Facebook claimed it no longer

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FB App.

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1693 (Jan. 15, 2016 Fechete Decl.), at 1698, ¶14. So, in her rebuttal report, Dr. Golbeck

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confirmed that her search of the source code showed existing references to

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As further evidence of Facebook’s

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, Dr. Golbeck amplified on the

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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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. Dkt. 167-1, Ex. 1 (Golbeck Rebuttal Report), at 1112, ¶¶31-32. As its name implies,

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. Id., at 12, ¶34.

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References linking

have been a part of this case since

long before Dr. Golbeck’s Rebuttal Report. For example, describing a change to Facebook’s

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, one document states:

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See FB000003810. This document shows that

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. Moreover, contrary to Mr. Himel’s assertion, Dr. Golbeck did link

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, when she noted that

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. Dkt. 167-1, Ex. 1
(Golbeck Rebuttal Report), at 12, ¶32.

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Moreover, Mr. Himel’s newly-submitted testimony is even more inappropriate in light of
the fact that Facebook has withheld the source code

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that would support the (otherwise unsupported) assertions he now makes.
Notably, Mr. Himel does not say that Facebook no longer

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In October 2015, Plaintiffs requested, and Facebook refused to produce,

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the

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counsel Joshua Jessen to Plaintiffs’ counsel David Rudolph (arguing that the

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are irrelevant and stating

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. See Nov. 20, 2015 email from Facebook

). Plaintiffs are seeking to compel production of this data, and Facebook should

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not, under the guise of “surreply” material, be allowed to introduce into evidence testimony

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related to source code functionality that Facebook has refused to produce.

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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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D.

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Nothing In Facebook’s Surreply Should Dissuade The Court From Certifying
the Class.

Facebook’s two primary arguments in the Objection—concerning ascertainability of the

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class and Facebook’s improper use of Private Message content—offer no basis to deny class

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certification. On ascertainability, Facebook does not dispute that

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the necessary information to identify all class members. Instead, it essentially bickers that the

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precise code for the query has not necessarily yet been presented in final form. The bickering

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misses the main point, that is, that Plaintiffs’ expert has identified the existence of the data and

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general methodologies for extracting it that can be successful, even if it takes, quite

includes all

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unsurprisingly, working within the systems (a luxury she has not yet been afforded) to finalize the

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details. On improper use, again, Facebook nowhere denies that its source code shows it is

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systematically

Private Message content and that it has historically

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. It merely bickers that so far some of what Plaintiffs identify in

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the source code as pointing to improper use is no longer operative. Moreover, the

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of itself constitutes an interception, and is particularly concerning given the immense extent of

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Facebook’s

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III.

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in and

of the associated data.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court overrule and deny

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Facebook’s Objection to and Request to Strike New Evidence, and to strike the declarations of

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Alex Himel and Dale Harrison filed therewith. Alternatively, if the Court declines to strike

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Facebook’s two declarations, Plaintiffs respectfully request leave to file a response thereto,

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including a declaration from their expert.

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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)

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Dated: March 9, 2016

By:

/s/ Michael W. Sobol
Michael W. Sobol

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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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Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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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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PLAINTIFFS’ RESPONSE TO DEFENDANT’S
“OBJECTION TO AND REQUEST TO STRIKE NEW
EVIDENCE” CASE NO. 13-CV-05996-PJH (MEJ)