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)

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1 2 3 4 5 6 7 8 9 10 11 12 GIBSON, DUNN & CRUTCHER LLP JOSHUA A. JESSEN, SBN 222831 JJessen@gibsondunn.com JEANA BISNAR MAUTE, SBN 290573 JBisnarMaute@gibsondunn.com PRIYANKA RAJAGOPALAN, SBN 278504 PRajagopalan@gibsondunn.com ASHLEY M. ROGERS, SBN 286252 ARogers@gibsondunn.com 1881 Page Mill Road Palo Alto, California 94304 Telephone: (650) 849-5300 Facsimile: (650) 849-5333 GIBSON, DUNN & CRUTCHER LLP CHRISTOPHER CHORBA, SBN 216692 CChorba@gibsondunn.com 333 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 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)

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