Campbell et al v. Facebook Inc.

Filing 187

OBJECTIONS to re 185 Errata, Plaintiffs' Objections to Facebook's Errata to Evidence Filed in Support of Facebook's Opposition to Plaintiffs' Motion for Class Certification by Matthew Campbell, Michael Hurley. (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

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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,
Plaintiff,

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v.

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Case No. C 13-05996 PJH (MEJ)
PLAINTIFFS’ OBJECTIONS TO
FACEBOOK’S ERRATA TO EVIDENCE
FILED IN SUPPORT OF FACEBOOK’S
OPPOSITION TO PLAINTIFFS’ MOTION
FOR CLASS CERTIFICATION

FACEBOOK, INC.,

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Defendant.

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PLAINTIFFS’ OBJECTIONS TO ERRATA
CASE NO. 13-CV-05996-PJH (MEJ)

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I.

INTRODUCTION

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Plaintiffs object to Facebook’s filing of supplemental evidence and production of

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documents after the briefing on class certification has been completed, the hearing held, and the

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matter submitted. See Dkt. 185. Facebook’s “Errata” reveals that it provided inaccurate

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representations to the Court and incorrect testimony from its key witness Alex Himel concerning

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“facts” Facebook heavily relied upon in its opposition to class certification. The Errata itself is

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based on a self-serving, partial disclosure of a relevant category of information about which

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Facebook continues to refuse to produce documents and data, and is the subject of one of four

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pending discovery disputes which the parties have met and conferred upon and which are the

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subject of a Request for Telephonic Conference before Magistrate Judge James. As for the

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document Facebook produces with its Errata, it appears to be a recently fashioned excerpt,

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strategically tailored specifically for this litigation, and therefore does not even comprise a

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reliable record of the company. Accordingly, Plaintiffs respectfully request that the Court strike

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Facebook’s improper Errata and accompanying declaration.

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II.

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ARGUMENT
A.

Facebook’s “Errata” is Based on a Document It Has Cherry Picked From a
Category of Documents It Has Refused to Produce.

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It is an elementary principle of discovery that a party cannot withhold an entire category

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of documents from production, but then selectively cherry-pick information from that withheld

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category to produce. That is precisely what Facebook has done here: it refuses to produce

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“configuration tables,” i.e., the information showing how Facebook stores and configures Private

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Message content after it successfully intercepts it, yet it offers self-serving testimony about them.

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It also offers a document which does not appear to be a document kept in the ordinary course of

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business, and appears to reflect Facebook’s lawyer’s editing to address a contested issue presently

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before the Court. See Declaration of David Rudolph in Support of Plaintiffs’ Request for

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Telephonic Conference, filed May 12, 2016, ¶ 18 (metadata associated with document purporting

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to demonstrate deletion of “share_stats” table indicates document was created on May 10, 2016).

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Facebook’s inaccurate representations to the Court on this issue (which it now
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PLAINTIFFS’ OBJECTIONS TO ERRATA
CASE NO. 13-CV-05996-PJH (MEJ)

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acknowledges) highlight the importance of fulsome discovery in order to test the credibility and

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veracity of witness statements.1 The configuration tables from which Facebook cherry-picked this

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document go to the heart of the parties’ dispute regarding the ongoing wrongful interception of

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users’ Private Message content during the proposed class period. As described in Plaintiffs’ class

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certification reply briefing expert report and in their reply to Facebook’s improper “objection to

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reply evidence,” Plaintiffs contend that Facebook has continued to log Private Message content

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via the “scribeh_share_stats” functionality.2 While Facebook contended (as it now admits,

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incorrectly), that the “share_stats” Hive table was deleted prior to the class certification period, it

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has produced no evidence suggesting that the “scribeh_share_stats” functionality does not log

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data into a different Hive table. Facebook’s selective production of a single entry from a

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configuration table which purports to show that the “share_stats” table was deleted (and which in

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any event has not been the subject of expert analysis or witness testimony) only highlights the

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necessity of Facebook producing all of the Hive configuration data. Plaintiffs should have the

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ability to obtain this entire category of documents, which they have been seeking for several

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months.

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B.

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Facebook Continues to Withhold the Very Documents From Which it Now
Cherry-Picks Data for Production.

Incredibly, Facebook continues to withhold production of the very data sources upon

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which it now relies in its Errata. There is simply no excuse for this and Facebook’s continued

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refusal to produce such documents and data constitutes discovery misconduct. As Plaintiffs have

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explained, Mr. Himel’s assertion that the “share_stats” table was deleted prior to the class period

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was a bald statement unsupported by any documentary evidence.3 During his deposition, Mr.

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Apparently, Facebook’s counsel’s exhortation to the Court at the class certification hearing “to
carefully check the citations to the record that are provided if the Court’s crediting anything in
[Plaintiffs’] briefing,” would have been more productively directed at themselves. March 16,
2016 Hrg. Tr. at 101:1-15. Cf. Facebook’s counsel statement at 87:16-20 (“And they spent a lot
of time on the share stats table. That was deleted in 2011 before the class period. So I don't even
know why we're talking about it. It was deleted before. It had nothing to do with this case. It was
deleted beforehand.”).
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See, e.g., Dkt. 178-5, at 6-7.
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See Dkt. 172, at 7.
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PLAINTIFFS’ OBJECTIONS TO ERRATA
CASE NO. 13-CV-05996-PJH (MEJ))

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Himel revealed that he consulted requested but unproduced configuration data as the basis for

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this (false) assertion.4 Following his deposition, Facebook agreed to produce this narrow sliver of

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data—the data upon which Mr. Himel purported to rely—but refused to produce the larger data

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set from which this sliver would be drawn. Plaintiffs rejected this proposal, and instead properly

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insisted on Facebook producing the full data set from which this data was allegedly cherry-

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picked. However, even this newly-produced entry from a larger table does not support Mr.

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Himel’s former assertions as to the date of the deletion of the table, and there is simply no

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legitimate dispute regarding whether Facebook should be required to produce the actual

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documents and data from which this information was drawn. But not only does Facebook refuse

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to produce this data, as described in Plaintiffs’ concurrently-filed Request for Telephonic

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Conference, it is seeking to actively block Plaintiffs from even requesting that the Court compel

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the production of this data.

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C.

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Throughout the course of this case, Facebook has repeatedly taken the position that the

Facebook’s Conduct is Emblematic of The Discovery Issues in This Case.

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production of key data, such as Facebook’s source code, was unnecessary, or that the production

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of key witnesses and evidence was “impossible,” only to be eventually forced to do so by the

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Court. Plaintiffs’ analysis of the source code that Facebook initially refused to produce as

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“unnecessary” has revealed significant further information regarding Facebook’s interception and

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use of Private Message content. Facebook’s position that the small subset of documents it has

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chosen to produce, in addition to its employees’ self-serving (but in this case false) “sworn

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testimony,” is sufficient disclosure can no longer be credited, and Facebook must produce the

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documents and data needed to test the veracity of those assertions. Only then can the factual

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disputes common to the class be resolved.

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III.

CONCLUSION

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For the foregoing reasons, Plaintiffs respectfully request that the Court strike Facebook’s

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improper Errata and accompanying declaration. Facebook’s conduct and admission demonstrate

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that there are material facts in dispute which are common to the class and make certification

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See Himel Dep. Vol. 1, at 203:7-204:1.
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PLAINTIFFS’ OBJECTIONS TO ERRATA
CASE NO. 13-CV-05996-PJH (MEJ))

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appropriate, and that further discovery is necessary to determine the full extent of Facebook’s

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interception and use of Private Message content during the proposed class period.

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Dated: May 12, 2016

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By:

/s/ Michael W. Sobol
Michael W. Sobol

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
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
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
Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ OBJECTIONS TO ERRATA
CASE NO. 13-CV-05996-PJH (MEJ))