Campbell et al v. Facebook Inc.
Filing
186
MOTION to Appear by Telephone Plaintiffs' Request for Telephonic Conference filed by Matthew Campbell, Michael Hurley. (Attachments: # 1 Declaration of David T. Rudolph in Support of Plaintiffs' Request for Telephonic Conference)(Sobol, Michael) (Filed on 5/12/2016)
1
2
3
4
5
6
7
8
9
10
11
12
Michael W. Sobol (State Bar No. 194857)
msobol@lchb.com
David T. Rudolph (State Bar No. 233457)
drudolph@lchb.com
Melissa Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
2800 Cantrell Road, Suite 510
Little Rock, AR 72202
Telephone: 501.312.8500
Facsimile: 501.312.8505
13
Attorneys for Plaintiffs and the Proposed Class
14
UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA
16
17
18
19
MATTHEW CAMPBELL, and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,
20
21
22
23
Plaintiffs,
Case No. 4:13-cv-05996-PJH (MEJ)
DECLARATION OF DAVID T. RUDOLPH IN
SUPPORT OF PLAINTIFFS’ REQUEST FOR
TELEPHONIC DISCOVERY CONFERENCE
v.
FACEBOOK, INC.,
Defendant.
24
25
26
27
28
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
1
I, David T. Rudolph, hereby declare:
2
1.
I am a member in good standing of the California State Bar and an attorney in the
3
law firm Lieff, Cabraser, Heimann & Bernstein, LLP, counsel for the plaintiffs in the above-
4
captioned Action (“Plaintiffs”). I have personal knowledge of the facts set forth herein, and if
5
called to testify thereto, I could and would do so competently. I submit this declaration in support
6
of Plaintiffs’ Request for a Telephonic Discovery Conference.
7
2.
On March 4, 2016, Plaintiffs sent Facebook, via email, drafts of four joint letter
8
briefs addressing the following topics, respectively: (1) missing documents related to damages
9
Requests for Production; (2) missing documents related to topics alluded to in Facebook’s current
10
production; (3) missing source code-related “configuration tables,” which contain information
11
regarding Facebook’s storage and use of Private Message data; and (4) critical deficiencies in
12
Facebook’s use of “predictive coding” to identify and produce documents throughout the
13
discovery process to date. (Email from M. Gardner to C. Chorba re Plaintiffs’ Portions of Letter
14
Briefs, March 4, 2016). Each of these letter briefs was preceded by at least one in-person meet-
15
and-confer with Facebook’s counsel.
16
3.
In the March 4, 2016 email, and consistent with the parties’ prior agreement (a
17
proposal from Facebook’s counsel, in which the moving party would provide its portion of the
18
brief to the non-moving party, who would then have a week to craft its responsive portion),
19
Plaintiffs asked that Facebook provide its portions of the respective letter briefs by March 10, at
20
which time Plaintiffs would revise their sections prior to the proposed filing date of March 14. Id.
21
4.
On March 8, 2016, counsel for Facebook sent an email response to Plaintiffs’
22
counsel, stating that Facebook would not provide its portions of the respective letter briefs.
23
(Email from C. Chorba to M. Gardner re Plaintiffs’ Portions of Letter Briefs, March 8, 2016).
24
Citing to the prior in-person meet-and-confers on each of the topics in each of the briefs—and
25
contending that these meetings did not represent “a good faith attempt to meet and confer”—
26
Facebook’s counsel contended that a further “good faith meet-and-confer” was needed. Id.
27
Following an exchange of several emails between the parties as to the sufficiency of the prior
28
-2-
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
1
meet-and-confers,1 Facebook represented that it had “thoughts on potential compromises,” which
2
it would present to Plaintiffs only upon the condition of an additional meet-and-confer. (Email
3
from C. Chorba to H. Bates re Prior Meet and Confers and Proposing March 16, 2016 Meet and
4
Confer and Revised Briefing Schedule, March 9, 2016). Facebook proposed a meet-and-confer
5
on March 16, 2016, following the hearing on Plaintiffs’ Motion for Class Certification. Id.
6
Facebook further represented that, if the parties could not reach agreement, Facebook would
7
provide its portions of the four letter briefs on March 23, 2016. Id. Plaintiffs subsequently
8
agreed to this proposal. (Email from H. Bates to C. Chorba re March 16, 2016 Meet and Confer
9
and Revised Briefing Schedule, March 10, 2016).
10
5.
On March 16, following the hearing on Plaintiffs’ Motion for Class Certification, I
11
participated in an in-person meet and confer with Facebook’s counsel. At the end of this meeting,
12
the parties agreed that an impasse had been reached on all topics except for the letter brief
13
addressing “predictive coding.” Plaintiffs requested, and Facebook agreed, that Facebook would
14
provide its portions of three letter briefs, as well as its proposal regarding a compromise related to
15
its implementation of predictive coding, on March 23, 2016.
16
17
6.
On March 23, 2016, rather than provide the draft brief revisions and compromise
proposal, Facebook instead requested additional time to draft its responses and proposal.
18
7.
On April 5, 2016, Facebook provided its portion of the damages letter brief, but
19
did not provide its portion of the two outstanding letter briefs or its proposal regarding predictive
20
coding. On April 7, 2016, Facebook provided a proposed compromise regarding predictive
21
coding. (Email from J. Bisnar-Maute to D. Rudolph re Proposed Search Terms and Custodians,
22
April 7, 2016). The proposal consisted of an offer to search for a small subset of search terms
23
proposed by Plaintiffs for only 3 custodians (Facebook had identified over 30 custodians, to date).
24
Id. This same email also indicated that Facebook had “been looking into the databases raised in
25
26
27
28
1
Email from H. Bates to C. Chorba re Prior Meet and Confers, March 8, 2016; Email from C.
Chorba to H. Bates re Prior Meet and Confers and Proposing March 16, 2016 Meet and Confer
and Revised Briefing Schedule, March 9, 2016; Email from H. Bates to C. Chorba re March 16,
2016 Meet and Confer and Revised Briefing Schedule, March 10, 2016.
-3-
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
1
[Plaintiffs’] draft joint letter brief,” and that Facebook had follow-up questions regarding this
2
matter.
3
8.
On April 11, 2016, I had a telephonic conversation with Facebook’s counsel, Jeana
4
Bisnar-Maute, regarding the missing databases and configuration tables. In the conversation, Ms.
5
Bisnar-Maute indicated that Facebook was attempting to locate information related to the
6
databases sought by Plaintiffs, and that she would provide additional information by Friday, April
7
15, 2016. I sent an email to Ms. Bisnar-Maute on April 11, 2016, memorializing our conversation
8
and stating that Plaintiffs required a list of all databases and configuration tables that Facebook
9
would produce no later than April 15, 2016. (Email from D. Rudolph to J. Bisnar-Maute, April
10
11, 2016). To the extent that Facebook did not intend to produce the databases and configuration
11
tables sought in Plaintiffs’ letter brief, I requested that Facebook provide its portion of that joint
12
letter brief by April 20, 2016. Id.
13
9.
On April 13, 2016, I emailed Facebook’s counsel concerning the proposed
14
predictive coding compromise sent on April 7. The email rejected the proposal and detailed the
15
deficiencies that made it unworkable for Plaintiffs (including the truncated list of search terms
16
and custodians). (Email from D. Rudolph to J. Bisnar-Maute, April 13, 2016). The email
17
requested that Facebook provide its portion of the predictive coding letter brief by April 20, 2016.
18
Id.
19
10.
On April 15, 2016, Facebook replied that it “continue[d] to investigate potentially
20
responsive information about logs and databases,” but that it could not “agree to the full scope of
21
production requested by Plaintiffs.” (Email from J. Bisnar-Maute to D. Rudolph, April 15, 2016).
22
11.
On April 18, 2016, I sent an email to Facebook’s counsel reiterating Plaintiffs’
23
position regarding the need for letter briefing on predictive coding and database/configuration
24
tables. (Email from D. Rudolph to J. Bisnar-Maute, April 18, 2016). Additionally, I sought
25
confirmation from Facebook that it would be producing its portions of the three outstanding letter
26
briefs by close of business on April 20, 2016. Id. Alternatively, I sought Facebook’s availability
27
for a telephonic conference with the Court, in the event that Facebook refused to provide its
28
portions of the briefs. Id. Facebook confirmed that it would provide its portions of the letter
-4-
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
1
briefs in a subsequent email on April 18, 2016. (Email from J. Bisnar-Maute to D. Rudolph,
2
April 18, 2016).
3
12.
On April 20, 2016, Facebook provided its portions of the remaining three letter
4
briefs, stating that it “reserve[d] the right to make further edits to its sections based on changes
5
Plaintiffs make to their sections.” (Email from J. Bisnar-Maute to Plaintiffs’ Counsel, April 20,
6
2016). In each of the letter briefs, Facebook’s portion exceeded the page space allotted by the
7
Court (in some cases by 100 percent).
8
13.
On May 4, 2016, Plaintiffs provided their revised portions of all four letter briefs.
9
These revisions included edits to the briefs to ensure that Plaintiffs’ portions were responsive to
10
Defendant’s written position and stayed within the space allotted under the Court’s page limit.
11
(Email from D. Rudolph to C. Chorba, J. Jessen, et al., May 4, 2016). Plaintiffs requested that
12
Facebook provide versions of Facebook’s portions that complied with the Court's 5-page limit, or
13
confirm that Facebook declined to abide the Court's page limits, by close of business on May 10.
14
14.
On May 10, 2016, Facebook’s counsel sent an email stating that it declined to
15
provide its revised portions of the four letter briefs. (Email from J. Jessen to D. Rudolph, May
16
10, 2016). Taking issue with Plaintiffs’ revisions to their briefs, Facebook indicated it would
17
seek a telephonic discovery conference with the Court “to fashion an alternative procedure that
18
would require Plaintiffs to file their requests and argument with the Court, and then require
19
Facebook to respond in a separate filing.” Id. Facebook alleged that Plaintiffs “made substantive
20
changes to the actual relief that they are seeking in many of the briefs.” Facebook also indicated
21
that, during the telephonic conference, it planned “to ask the Magistrate Judge to defer the merits
22
of discovery briefs until the District Court rules on the pending class certification motion.” Id.
23
15.
On May 11, 2016, Plaintiffs proposed granting Facebook an additional two weeks
24
to revise its portions of the letter briefs in light of any perceived, substantive changes in any of the
25
briefs. (Email from D. Rudolph to J. Jessen, May 11, 2016).
26
16.
Later that day, Facebook responded to and declined Plaintiffs’ offer, stating that
27
Facebook “need[ed] a new path going forward.” Facebook asserted that “(1) Plaintiffs have never
28
met and conferred on the new relief they now seek (such as a prohibition on predictive coding),
-5-
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
1
(2) there is no way for Facebook to recoup the significant costs it has already incurred by drafting
2
responses to the earlier, different requests, and (3) it provides Facebook no assurance that
3
Plaintiffs will not once again change the nature of the relief they are requesting after Facebook
4
incurs additional costs drafting new briefs.” (Email from J. Jessen to D. Rudolph, May 11, 2016).
5
17.
Additionally, Facebook’s email stated that while “allegations regarding
6
‘share_stats’ and Nectar logging are not pled in Plaintiffs’ operative Complaint and were only
7
raised for the first time in Plaintiffs’ Motion for Class Certification, in the interests of
8
compromise we will today be producing documents relating to these issues as discussed in the
9
January 14, 2016 Declaration of Alex Himel.” Id.
10
18.
Subsequently, Facebook filed an “Errata” with the Court outlining its “discovery”
11
of an “error” in factual assertions made by its witnesses in support of its opposition to Class
12
Certification. (Dkt. 185). Concurrently with this filing, Facebook provided Plaintiffs with a
13
document that controverted factual assertions made by Facebook witnesses in its opposition brief.
14
(Email from J. Bisnar-Maute to Plaintiffs’ counsel, May 11, 2016). The metadata associated with
15
this document appears to indicate the document was created on May 10, 2016.
16
17
18
I declare under penalty of perjury that the foregoing is true and correct and that this
Declaration was signed in San Francisco, California, on May 12, 2016.
Dated: May 12, 2016
19
By:
/s/ David T. Rudolph
David T. Rudolph
20
21
22
ATTESTATION
23
24
25
I, Michael W. Sobol, am the ECF user whose identification and password are being used
to file this document. I hereby attest that David Rudolph has concurred in this filing.
26
27
Dated: May 12, 2016
/s/ Michael W. Sobol
Michael W. Sobol
28
-6-
DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?