Campbell et al v. Facebook Inc.

Filing 189

MOTION to Appear by Telephone Defendant's Request for Telephonic Discovery Conference filed by Facebook Inc.. (Attachments: # 1 Declaration of Jeana Bisnar Maute In Support of Defendant's Request for Telephonic Discovery Conference)(Chorba, Christopher) (Filed on 5/12/2016)

1
2
3
4
5
6
7
8
9
10
11
12

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.

13
14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17

MATTHEW CAMPBELL and MICHAEL
HURLEY,

18
Plaintiffs,
19

Case No. C 13-05996 PJH (MEJ)
DEFENDANT FACEBOOK, INC.’S
REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE

v.
20
FACEBOOK, INC.,
21
Defendant.
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

1

Facebook respectfully requests a telephonic conference before May 23 with Magistrate Judge

2

James to discuss two threshold issues that have arisen in connection with four discovery letter briefs

3

that Plaintiffs have prepared over the last several months. Earlier this week, counsel for Facebook

4

asked Plaintiffs’ counsel to provide three dates and times during which they could be available for a

5

telephonic discovery conference. Plaintiffs provided no dates, but instead—without any advance

6

notice to Facebook—filed a 10-page brief and 6-page declaration this afternoon, the singular purpose

7

of which was to smear Facebook. (Dkt. 186.) In response to that filing—which is replete with

8

misstatements and misrepresentations—the Court ordered the parties to meet and confer (something

9

Plaintiffs have repeatedly resisted doing) on May 23. (Dkt. 188.) In addition to this in-person

10

meeting, Facebook also respectfully requests that the Court hold a telephonic conference sometime

11

before May 23 (all parties are available on May 18, 19, and 20 (Dkt. 186)) to address the threshold

12

issues discussed below.

13

The Court should hold a hearing before May 23 for two reasons:

14

First, although Facebook has agreed to submit its portions of the discovery briefs now, it has

15

explained to Plaintiffs’ counsel that further discovery motions practice is improper given that

16

Plaintiffs’ Motion for Class Certification is fully briefed, was argued on March 16, and is currently

17

awaiting a decision. As Plaintiffs’ counsel repeatedly has observed in this case, there is currently no

18

discovery cut-off, and therefore no prejudice to Plaintiffs in deferring these issues until the Court

19

rules on the pending class certification motion. Awaiting that ruling is particularly appropriate given

20

the shifting nature of Plaintiffs’ theories to date. As Judge Hamilton noted during the hearing,

21

Plaintiffs’ Motion for Class Certification focused on new practices not alleged in the complaint, and

22

the proposed class definition was a “moving target.” (Declaration of Jeana Bisnar Maute (“Maute

23

Decl.”), Ex. A (Tr. of Hr’g, Mar. 16, 2016) at 4:24-5:7, 17:13-18:5.)

24

Second, even if the Court does not defer these discovery disputes until there is a ruling on

25

class certification, this Court should hold a discovery conference for the separate reason that

26

Plaintiffs’ counsel have repeatedly rewritten both the substance and requested relief in their letter

27

briefs over an extended period, forcing Facebook to waste time and money responding to constantly-

28

shifting targets. By way of example, Plaintiffs would have had Facebook rewrite its portions of

Gibson, Dunn &
Crutcher LLP

1
DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

1

Plaintiffs’ evolving “predictive coding” brief no less than three times: In September 2015, Plaintiffs

2

met and conferred with Facebook regarding a dispute over the predictive coding process that

3

Facebook had proactively explained to Plaintiffs’ counsel over the preceding months. (Maute Decl.

4

¶¶ 3-4.) In the first draft of their letter brief (served on October 2, 2015), Plaintiffs’ counsel

5

requested an order that Facebook “produce and identify the ‘seed’ or training documents that

6

Facebook [had] used to train its predictive coding software.’” (Id. ¶ 5.) After Facebook spent

7

significant time redrafting its portion of the letter brief and preparing a detailed declaration from its

8

discovery analyst, Plaintiffs’ counsel simply abandoned the letter brief in October 2015. (Id. ¶ 6.)

9

But five months later, and shortly before the hearing on class certification (in early March

10

2016), and without any advance notice to Facebook, Plaintiffs resurrected the brief to seek entirely

11

new relief. (Id. ¶ 7.) Specifically, Plaintiffs’ revised letter brief demanded “that Facebook first

12

conduct another keyword search . . . using both the previously agreed-upon search terms as well as

13

additional search terms proposed [by Plaintiffs]” and “that Facebook then re-train its predictive

14

coding software . . . and re-run the process of predictive coding . . . .” (Id. (emphases added).)

15

Plaintiffs had never met and conferred on this new relief, yet they demanded that Facebook respond

16

to the brief within one week (which was the week before the class certification hearing). (Id.)

17

Ultimately, and only after Facebook insisted that Plaintiffs comply with this Court’s Discovery

18

Standing Order, the parties met and conferred in person on March 16, 2016. (Id. ¶ 8.) Facebook

19

subsequently developed a proposed compromise to avoid this dispute. (Id.) After Plaintiffs’ counsel

20

rejected Facebook’s compromise as allegedly not a “good faith” attempt to address Plaintiffs’ brand

21

new demands, Facebook prepared its portion of the letter brief and provided it to Plaintiffs on April

22

20, 2016. (Id. ¶ 9.)

23

Two weeks later, Plaintiffs’ counsel sent Facebook a revised version of the letter brief. (Id.

24

¶ 10.) Plaintiffs had substantially revised their portion of the brief, and, remarkably, they now

25

requested entirely new relief—specifically, that the Court order Facebook “to abandon its predictive

26

coding process” and “produce all non-privileged documents containing any of the previously-

27

searched keywords in addition to those documents containing the [new] search terms [proposed by

28
Gibson, Dunn &
Crutcher LLP

2
DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

1

Plaintiffs].”1 (Id. (emphasis added).) Plaintiffs never met and conferred with Facebook regarding

2

this newly requested-relief (which would preclude Facebook from utilizing predictive coding

3

altogether and further would not permit Facebook to withhold irrelevant documents from

4

production), and yet they demanded that Facebook provide a new response to Plaintiffs’ new letter

5

brief within four business days. (Id.)

6

In another stark example, Plaintiffs have continually revised their requests for certain database

7

information. Specifically, in October 2015, Plaintiffs requested several specific, extraordinarily large

8

databases and all “production databases necessary for the operation of Facebook’s source code.” (Id.

9

¶ 11.) After Facebook responded to Plaintiffs’ request, Plaintiffs appeared to drop the issue last fall.

10

(Id.) Then, on March 4, 2016 (the same day they sent the second iteration of their letter brief

11

regarding predictive coding, as well as two other draft letter briefs), Plaintiffs sent a draft letter brief

12

requesting entirely different relief—specifically, all “Configuration Table[s] associated with the

13

operation of Facebook’s source code,” including (but not limited to) tables for the specific databases

14

they mentioned four months prior. (Id. ¶ 12 (emphasis added).) Facebook took the time to draft a

15

response to the new request, only to have Plaintiffs once again send a revised portion of the joint

16

letter brief with yet another new request for relief. (Id. ¶ 13.)

17

These are just two of many examples across several discovery letter briefs in this litigation.

18

In light of Plaintiffs’ conduct, and the considerable time and expense Facebook has incurred (and

19

wasted) as result of it, Facebook requests that the Court implement a new procedure for discovery

20

briefs in this case, whereby Plaintiffs’ counsel is required to meet and confer in person regarding the

21

relief they actually plan to request, and then file their portion of any letter brief with this Court, to

22

which Facebook would respond in seven days.2 This process would avoid another “moving target” in

23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

In the alternative, Plaintiffs’ new letter brief requested that the Court “compel Facebook: (1) to
implement a predictive coding protocol that … does not use keyword culling; (2) to meet and confer
with Plaintiffs’ counsel to agree upon a standard for relevance that corresponds to the scope of this
case; (3) to apply that standard, through Equivio, to all custodians and document sources identified
thus far by Facebook; and (4) to produce documents responsive to Plaintiffs’ requests, as identified,
on a rolling basis.” (Id. ¶ 10.)
2
Facebook reserves its right to request additional pages from the Court for letter briefs in which
Plaintiffs request relief that would be extremely costly and/or burdensome for Facebook—such as
where Plaintiffs request an order compelling Facebook to “re-do” predictive coding or to undertake
[Footnote continued on next page]
3
1

DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

1

connection with the many discovery disputes that Plaintiffs’ counsel continues to manufacture in this

2

action.

3
4

Accordingly, Facebook respectfully requests a telephonic conference before May 23
(specifically, May 18, 19, or 20) to discuss these threshold issues.

5
6

Dated: May 12, 2016

Respectfully submitted,

7

GIBSON, DUNN & CRUTCHER LLP

8

By:

9

Attorneys for Defendant FACEBOOK, INC.

/s/
Christopher Chorba

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

[Footnote continued from previous page]
an overly broad, unduly burdensome, and disproportionate document production. See, e.g., Fed. R.
Civ. P. 26(b)(1) (discovery must be “proportional to the needs of the case”).
4
DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)