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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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.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MATTHEW CAMPBELL and MICHAEL
HURLEY,
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Plaintiffs,
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Case No. C 13-05996 PJH (MEJ)
DEFENDANT FACEBOOK, INC.’S
REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
v.
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FACEBOOK, INC.,
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Defendant.
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Gibson, Dunn &
Crutcher LLP
DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)
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Facebook respectfully requests a telephonic conference before May 23 with Magistrate Judge
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James to discuss two threshold issues that have arisen in connection with four discovery letter briefs
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that Plaintiffs have prepared over the last several months. Earlier this week, counsel for Facebook
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asked Plaintiffs’ counsel to provide three dates and times during which they could be available for a
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telephonic discovery conference. Plaintiffs provided no dates, but instead—without any advance
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notice to Facebook—filed a 10-page brief and 6-page declaration this afternoon, the singular purpose
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of which was to smear Facebook. (Dkt. 186.) In response to that filing—which is replete with
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misstatements and misrepresentations—the Court ordered the parties to meet and confer (something
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Plaintiffs have repeatedly resisted doing) on May 23. (Dkt. 188.) In addition to this in-person
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meeting, Facebook also respectfully requests that the Court hold a telephonic conference sometime
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before May 23 (all parties are available on May 18, 19, and 20 (Dkt. 186)) to address the threshold
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issues discussed below.
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The Court should hold a hearing before May 23 for two reasons:
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First, although Facebook has agreed to submit its portions of the discovery briefs now, it has
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explained to Plaintiffs’ counsel that further discovery motions practice is improper given that
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Plaintiffs’ Motion for Class Certification is fully briefed, was argued on March 16, and is currently
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awaiting a decision. As Plaintiffs’ counsel repeatedly has observed in this case, there is currently no
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discovery cut-off, and therefore no prejudice to Plaintiffs in deferring these issues until the Court
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rules on the pending class certification motion. Awaiting that ruling is particularly appropriate given
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the shifting nature of Plaintiffs’ theories to date. As Judge Hamilton noted during the hearing,
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Plaintiffs’ Motion for Class Certification focused on new practices not alleged in the complaint, and
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the proposed class definition was a “moving target.” (Declaration of Jeana Bisnar Maute (“Maute
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Decl.”), Ex. A (Tr. of Hr’g, Mar. 16, 2016) at 4:24-5:7, 17:13-18:5.)
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Second, even if the Court does not defer these discovery disputes until there is a ruling on
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class certification, this Court should hold a discovery conference for the separate reason that
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Plaintiffs’ counsel have repeatedly rewritten both the substance and requested relief in their letter
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briefs over an extended period, forcing Facebook to waste time and money responding to constantly-
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shifting targets. By way of example, Plaintiffs would have had Facebook rewrite its portions of
Gibson, Dunn &
Crutcher LLP
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DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)
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Plaintiffs’ evolving “predictive coding” brief no less than three times: In September 2015, Plaintiffs
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met and conferred with Facebook regarding a dispute over the predictive coding process that
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Facebook had proactively explained to Plaintiffs’ counsel over the preceding months. (Maute Decl.
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¶¶ 3-4.) In the first draft of their letter brief (served on October 2, 2015), Plaintiffs’ counsel
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requested an order that Facebook “produce and identify the ‘seed’ or training documents that
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Facebook [had] used to train its predictive coding software.’” (Id. ¶ 5.) After Facebook spent
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significant time redrafting its portion of the letter brief and preparing a detailed declaration from its
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discovery analyst, Plaintiffs’ counsel simply abandoned the letter brief in October 2015. (Id. ¶ 6.)
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But five months later, and shortly before the hearing on class certification (in early March
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2016), and without any advance notice to Facebook, Plaintiffs resurrected the brief to seek entirely
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new relief. (Id. ¶ 7.) Specifically, Plaintiffs’ revised letter brief demanded “that Facebook first
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conduct another keyword search . . . using both the previously agreed-upon search terms as well as
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additional search terms proposed [by Plaintiffs]” and “that Facebook then re-train its predictive
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coding software . . . and re-run the process of predictive coding . . . .” (Id. (emphases added).)
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Plaintiffs had never met and conferred on this new relief, yet they demanded that Facebook respond
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to the brief within one week (which was the week before the class certification hearing). (Id.)
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Ultimately, and only after Facebook insisted that Plaintiffs comply with this Court’s Discovery
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Standing Order, the parties met and conferred in person on March 16, 2016. (Id. ¶ 8.) Facebook
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subsequently developed a proposed compromise to avoid this dispute. (Id.) After Plaintiffs’ counsel
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rejected Facebook’s compromise as allegedly not a “good faith” attempt to address Plaintiffs’ brand
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new demands, Facebook prepared its portion of the letter brief and provided it to Plaintiffs on April
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20, 2016. (Id. ¶ 9.)
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Two weeks later, Plaintiffs’ counsel sent Facebook a revised version of the letter brief. (Id.
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¶ 10.) Plaintiffs had substantially revised their portion of the brief, and, remarkably, they now
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requested entirely new relief—specifically, that the Court order Facebook “to abandon its predictive
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coding process” and “produce all non-privileged documents containing any of the previously-
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searched keywords in addition to those documents containing the [new] search terms [proposed by
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Gibson, Dunn &
Crutcher LLP
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DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)
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Plaintiffs].”1 (Id. (emphasis added).) Plaintiffs never met and conferred with Facebook regarding
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this newly requested-relief (which would preclude Facebook from utilizing predictive coding
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altogether and further would not permit Facebook to withhold irrelevant documents from
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production), and yet they demanded that Facebook provide a new response to Plaintiffs’ new letter
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brief within four business days. (Id.)
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In another stark example, Plaintiffs have continually revised their requests for certain database
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information. Specifically, in October 2015, Plaintiffs requested several specific, extraordinarily large
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databases and all “production databases necessary for the operation of Facebook’s source code.” (Id.
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¶ 11.) After Facebook responded to Plaintiffs’ request, Plaintiffs appeared to drop the issue last fall.
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(Id.) Then, on March 4, 2016 (the same day they sent the second iteration of their letter brief
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regarding predictive coding, as well as two other draft letter briefs), Plaintiffs sent a draft letter brief
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requesting entirely different relief—specifically, all “Configuration Table[s] associated with the
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operation of Facebook’s source code,” including (but not limited to) tables for the specific databases
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they mentioned four months prior. (Id. ¶ 12 (emphasis added).) Facebook took the time to draft a
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response to the new request, only to have Plaintiffs once again send a revised portion of the joint
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letter brief with yet another new request for relief. (Id. ¶ 13.)
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These are just two of many examples across several discovery letter briefs in this litigation.
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In light of Plaintiffs’ conduct, and the considerable time and expense Facebook has incurred (and
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wasted) as result of it, Facebook requests that the Court implement a new procedure for discovery
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briefs in this case, whereby Plaintiffs’ counsel is required to meet and confer in person regarding the
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relief they actually plan to request, and then file their portion of any letter brief with this Court, to
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which Facebook would respond in seven days.2 This process would avoid another “moving target” in
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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.)
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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]
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DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)
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connection with the many discovery disputes that Plaintiffs’ counsel continues to manufacture in this
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action.
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Accordingly, Facebook respectfully requests a telephonic conference before May 23
(specifically, May 18, 19, or 20) to discuss these threshold issues.
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Dated: May 12, 2016
Respectfully submitted,
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GIBSON, DUNN & CRUTCHER LLP
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By:
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Attorneys for Defendant FACEBOOK, INC.
/s/
Christopher Chorba
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[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”).
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DEFENDANT FACEBOOK, INC.’S REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)
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