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)

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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
Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
2800 Cantrell Road, Suite 510
Little Rock, AR 72202
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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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.

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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)

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I, David T. Rudolph, hereby declare:

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1.

I am a member in good standing of the California State Bar and an attorney in the

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law firm Lieff, Cabraser, Heimann & Bernstein, LLP, counsel for the plaintiffs in the above-

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captioned Action (“Plaintiffs”). I have personal knowledge of the facts set forth herein, and if

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called to testify thereto, I could and would do so competently. I submit this declaration in support

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of Plaintiffs’ Request for a Telephonic Discovery Conference.

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2.

On March 4, 2016, Plaintiffs sent Facebook, via email, drafts of four joint letter

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briefs addressing the following topics, respectively: (1) missing documents related to damages

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Requests for Production; (2) missing documents related to topics alluded to in Facebook’s current

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production; (3) missing source code-related “configuration tables,” which contain information

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regarding Facebook’s storage and use of Private Message data; and (4) critical deficiencies in

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Facebook’s use of “predictive coding” to identify and produce documents throughout the

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discovery process to date. (Email from M. Gardner to C. Chorba re Plaintiffs’ Portions of Letter

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Briefs, March 4, 2016). Each of these letter briefs was preceded by at least one in-person meet-

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and-confer with Facebook’s counsel.

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3.

In the March 4, 2016 email, and consistent with the parties’ prior agreement (a

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proposal from Facebook’s counsel, in which the moving party would provide its portion of the

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brief to the non-moving party, who would then have a week to craft its responsive portion),

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Plaintiffs asked that Facebook provide its portions of the respective letter briefs by March 10, at

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which time Plaintiffs would revise their sections prior to the proposed filing date of March 14. Id.

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4.

On March 8, 2016, counsel for Facebook sent an email response to Plaintiffs’

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counsel, stating that Facebook would not provide its portions of the respective letter briefs.

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(Email from C. Chorba to M. Gardner re Plaintiffs’ Portions of Letter Briefs, March 8, 2016).

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Citing to the prior in-person meet-and-confers on each of the topics in each of the briefs—and

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contending that these meetings did not represent “a good faith attempt to meet and confer”—

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Facebook’s counsel contended that a further “good faith meet-and-confer” was needed. Id.

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Following an exchange of several emails between the parties as to the sufficiency of the prior

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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)

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meet-and-confers,1 Facebook represented that it had “thoughts on potential compromises,” which

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it would present to Plaintiffs only upon the condition of an additional meet-and-confer. (Email

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from C. Chorba to H. Bates re Prior Meet and Confers and Proposing March 16, 2016 Meet and

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Confer and Revised Briefing Schedule, March 9, 2016). Facebook proposed a meet-and-confer

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on March 16, 2016, following the hearing on Plaintiffs’ Motion for Class Certification. Id.

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Facebook further represented that, if the parties could not reach agreement, Facebook would

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provide its portions of the four letter briefs on March 23, 2016. Id. Plaintiffs subsequently

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agreed to this proposal. (Email from H. Bates to C. Chorba re March 16, 2016 Meet and Confer

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and Revised Briefing Schedule, March 10, 2016).

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5.

On March 16, following the hearing on Plaintiffs’ Motion for Class Certification, I

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participated in an in-person meet and confer with Facebook’s counsel. At the end of this meeting,

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the parties agreed that an impasse had been reached on all topics except for the letter brief

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addressing “predictive coding.” Plaintiffs requested, and Facebook agreed, that Facebook would

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provide its portions of three letter briefs, as well as its proposal regarding a compromise related to

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its implementation of predictive coding, on March 23, 2016.

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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.

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7.

On April 5, 2016, Facebook provided its portion of the damages letter brief, but

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did not provide its portion of the two outstanding letter briefs or its proposal regarding predictive

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coding. On April 7, 2016, Facebook provided a proposed compromise regarding predictive

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coding. (Email from J. Bisnar-Maute to D. Rudolph re Proposed Search Terms and Custodians,

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April 7, 2016). The proposal consisted of an offer to search for a small subset of search terms

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proposed by Plaintiffs for only 3 custodians (Facebook had identified over 30 custodians, to date).

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Id. This same email also indicated that Facebook had “been looking into the databases raised in

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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.
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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)

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[Plaintiffs’] draft joint letter brief,” and that Facebook had follow-up questions regarding this

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matter.

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8.

On April 11, 2016, I had a telephonic conversation with Facebook’s counsel, Jeana

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Bisnar-Maute, regarding the missing databases and configuration tables. In the conversation, Ms.

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Bisnar-Maute indicated that Facebook was attempting to locate information related to the

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databases sought by Plaintiffs, and that she would provide additional information by Friday, April

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15, 2016. I sent an email to Ms. Bisnar-Maute on April 11, 2016, memorializing our conversation

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and stating that Plaintiffs required a list of all databases and configuration tables that Facebook

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would produce no later than April 15, 2016. (Email from D. Rudolph to J. Bisnar-Maute, April

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11, 2016). To the extent that Facebook did not intend to produce the databases and configuration

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tables sought in Plaintiffs’ letter brief, I requested that Facebook provide its portion of that joint

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letter brief by April 20, 2016. Id.

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9.

On April 13, 2016, I emailed Facebook’s counsel concerning the proposed

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predictive coding compromise sent on April 7. The email rejected the proposal and detailed the

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deficiencies that made it unworkable for Plaintiffs (including the truncated list of search terms

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and custodians). (Email from D. Rudolph to J. Bisnar-Maute, April 13, 2016). The email

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requested that Facebook provide its portion of the predictive coding letter brief by April 20, 2016.

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Id.

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10.

On April 15, 2016, Facebook replied that it “continue[d] to investigate potentially

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responsive information about logs and databases,” but that it could not “agree to the full scope of

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production requested by Plaintiffs.” (Email from J. Bisnar-Maute to D. Rudolph, April 15, 2016).

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11.

On April 18, 2016, I sent an email to Facebook’s counsel reiterating Plaintiffs’

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position regarding the need for letter briefing on predictive coding and database/configuration

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tables. (Email from D. Rudolph to J. Bisnar-Maute, April 18, 2016). Additionally, I sought

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confirmation from Facebook that it would be producing its portions of the three outstanding letter

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briefs by close of business on April 20, 2016. Id. Alternatively, I sought Facebook’s availability

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for a telephonic conference with the Court, in the event that Facebook refused to provide its

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portions of the briefs. Id. Facebook confirmed that it would provide its portions of the letter
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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)

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briefs in a subsequent email on April 18, 2016. (Email from J. Bisnar-Maute to D. Rudolph,

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April 18, 2016).

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12.

On April 20, 2016, Facebook provided its portions of the remaining three letter

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briefs, stating that it “reserve[d] the right to make further edits to its sections based on changes

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Plaintiffs make to their sections.” (Email from J. Bisnar-Maute to Plaintiffs’ Counsel, April 20,

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2016). In each of the letter briefs, Facebook’s portion exceeded the page space allotted by the

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Court (in some cases by 100 percent).

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13.

On May 4, 2016, Plaintiffs provided their revised portions of all four letter briefs.

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These revisions included edits to the briefs to ensure that Plaintiffs’ portions were responsive to

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Defendant’s written position and stayed within the space allotted under the Court’s page limit.

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(Email from D. Rudolph to C. Chorba, J. Jessen, et al., May 4, 2016). Plaintiffs requested that

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Facebook provide versions of Facebook’s portions that complied with the Court's 5-page limit, or

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confirm that Facebook declined to abide the Court's page limits, by close of business on May 10.

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On May 10, 2016, Facebook’s counsel sent an email stating that it declined to

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provide its revised portions of the four letter briefs. (Email from J. Jessen to D. Rudolph, May

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10, 2016). Taking issue with Plaintiffs’ revisions to their briefs, Facebook indicated it would

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seek a telephonic discovery conference with the Court “to fashion an alternative procedure that

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would require Plaintiffs to file their requests and argument with the Court, and then require

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Facebook to respond in a separate filing.” Id. Facebook alleged that Plaintiffs “made substantive

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changes to the actual relief that they are seeking in many of the briefs.” Facebook also indicated

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that, during the telephonic conference, it planned “to ask the Magistrate Judge to defer the merits

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of discovery briefs until the District Court rules on the pending class certification motion.” Id.

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On May 11, 2016, Plaintiffs proposed granting Facebook an additional two weeks

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to revise its portions of the letter briefs in light of any perceived, substantive changes in any of the

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briefs. (Email from D. Rudolph to J. Jessen, May 11, 2016).

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Later that day, Facebook responded to and declined Plaintiffs’ offer, stating that

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Facebook “need[ed] a new path going forward.” Facebook asserted that “(1) Plaintiffs have never

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met and conferred on the new relief they now seek (such as a prohibition on predictive coding),
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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)

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(2) there is no way for Facebook to recoup the significant costs it has already incurred by drafting

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responses to the earlier, different requests, and (3) it provides Facebook no assurance that

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Plaintiffs will not once again change the nature of the relief they are requesting after Facebook

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incurs additional costs drafting new briefs.” (Email from J. Jessen to D. Rudolph, May 11, 2016).

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Additionally, Facebook’s email stated that while “allegations regarding

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‘share_stats’ and Nectar logging are not pled in Plaintiffs’ operative Complaint and were only

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raised for the first time in Plaintiffs’ Motion for Class Certification, in the interests of

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compromise we will today be producing documents relating to these issues as discussed in the

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January 14, 2016 Declaration of Alex Himel.” Id.

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18.

Subsequently, Facebook filed an “Errata” with the Court outlining its “discovery”

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of an “error” in factual assertions made by its witnesses in support of its opposition to Class

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Certification. (Dkt. 185). Concurrently with this filing, Facebook provided Plaintiffs with a

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document that controverted factual assertions made by Facebook witnesses in its opposition brief.

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(Email from J. Bisnar-Maute to Plaintiffs’ counsel, May 11, 2016). The metadata associated with

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this document appears to indicate the document was created on May 10, 2016.

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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

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By:

/s/ David T. Rudolph
David T. Rudolph

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ATTESTATION

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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.

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Dated: May 12, 2016

/s/ Michael W. Sobol
Michael W. Sobol

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DECLARATION OF DAVID T. RUDOLPH
CASE NO. 4:13-CV-05996-PJH (MEJ)