Campbell et al v. Facebook Inc.

Filing 209

Declaration of David Rudolph in Support of 208 MOTION to Compel Production of Documents, 206 MOTION to Compel Production of Source Code, 207 MOTION to Compel Production of Configuration Tables filed byMatthew Campbell, Michael Hurley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 208 , 206 , 207 ) (Sobol, Michael) (Filed on 8/2/2016)

EXHIBIT 2

Gardner, Melissa
From:
Sent:
To:
Cc:
Subject:

Jessen, Joshua A. <[e-mail]>
Thursday, June 25, 2015 9:01 PM
Hank Bates; Rudolph, David T.
Chorba, Christopher; Maute, Jeana Bisnar; Sobol, Michael W.; Allen Carney; David Slade;
Diamand, Nicholas; Gardner, Melissa
RE: Campbell v Facebook

This is generally fine, Hank, though can you clarify what exactly you are looking for in Request 36 seeking “all code
repositories related to produced source code”?
Thanks,
Joshua A. Jessen

GIBSON DUNN
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412
1881 Page Mill Road, Palo Alto, CA 94304-1211
Tel [phone] • Fax [phone]
Tel + 650.849.5375
[e-mail] • www.gibsondunn.com

From: Hank Bates [mailto:[e-mail]]
Sent: Thursday, June 25, 2015 11:11 AM
To: Jessen, Joshua A.; Rudolph, David T. ([e-mail])
Cc: Chorba, Christopher; Maute, Jeana Bisnar; Sobol, Michael W.; Allen Carney; David Slade; Diamand, Nicholas;
Gardner, Melissa
Subject: RE: Campbell v Facebook

Josh,
Thank you for your email. While it appears the parties are in general agreement regarding the production of
relevant source code, for the avoidance of doubt we think it is appropriate to articulate the scope of relevant
source code given the posture of this issue so as to avoid further disputes down the road.
As a general matter Plaintiffs request all source code articulated in, and related to, Request For Production Nos.
4-11, 13-14, 16-17 & 19. (In our April 7, 2015 letter we agreed to table Requests Nos. 12, 15 & 18.) Request
No. 4 is the broadest of these requests. For clarification, Request No. 4 includes all source code related to the
private message function from creation through end storage, including any scanning or acquisition of private
message content and any data structures that connect or associate users to messages or message content, and
messages to attachments or URLs. This would also include all source code and Diffs referenced or included in
Mr. Himel’s declaration and the Exhibits thereto.
To address your concerns regarding specific requests below, with respect to Request Nos. 7, 8 & 9, we interpret
these to be seeking information relevant to spam and malware filtering and URL previews in the context of
private messages. With respect to Request No. 11, this has the meaning that Facebook intended in the
referenced pleading; however, it is our interpretation that it was related to the private message context. With
respect to Request Nos. 16 and 17, while these requests are not specifically limited to private messages we did
limit these requests to the Passive Like context in our April 7th letter; these Requests go to the issue of whether
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the data collected or acquired from private messages is in any form available to third parties; we expect
Facebook to produce responsive source code.
With respect to the time frame, as we discussed, we are amenable to an initial source code production spanning
from September 1, 2009 to December 31, 2012 (which tracks the timeframe in Mr. Himel’s declaration) but
reserve our rights to seek source code outside of this time frame to the extent we determine based on our review
of the code or subsequent depositions of Mr. Himel or others that such further code is relevant.
In addition, Plaintiffs requested all code repositories related to produced source code (Request No. 36) and all
check in/check out histories for such source code (Request No. 37). Please confirm that this production will be
provided contemporaneously with the source code production, as these documents will assist in expediting the
code review.
Please confirm Facebook agrees to the above scope of production. Assuming Facebook agrees, the parties can
proceed with the stipulation and modified protective order. I’ve revised and added to your stipulation language
some and propose the following language to be included in the stipulation:
“Subject to the entry of an amended protective order governing the treatment of source code, Facebook has
agreed to produce source code responsive to Plaintiffs’ discovery requests for the time period September 1,
2009 to December 31, 2012. The parties have met and conferred in good faith and have not identified any
issues of disagreement related to the scope of the source code production. However, in the event that a dispute
arises as to whether particular portions of the source code are responsive or relevant to Plaintiffs’ claims, the
parties will meet and confer in a good-faith attempt to resolve the dispute. If they cannot reach agreement, the
parties will brief the dispute for the Court. Accordingly, by agreement of the parties, the deposition of Alex
Himel scheduled for July 1, 2015 has been continued to a date yet to be determined, Plaintiffs will not file a
motion to compel related to the source code at this time, and the deadlines associated with such briefing set by
the Court in its April 13, 2015 Order shall be taken off calendar.”
Regards,
Hank Bates
Carney Bates & Pulliam PLLC
2800 Cantrell, Suite 510
Little Rock, AR 72202
[phone]
[e-mail]
www.CBPLaw.com

From: Jessen, Joshua A. [mailto:[e-mail]]
Sent: Wednesday, June 24, 2015 8:27 PM
To: Hank Bates; Rudolph, David T. ([e-mail])
Cc: Chorba, Christopher; Maute, Jeana Bisnar
Subject: Campbell v Facebook
Gentlemen –
Thank you for speaking with us earlier.

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Per our discussions, and subject to the entry of an amended protective order, we are amenable to making the relevant
source code available during the period discussed in the Himel declaration (September 2009 to December 2012).
I’ve gone back and looked at the specific requests for production you referenced on our call and have a few
concerns. Some of them are not tethered specifically to the messages product, such as Requests 7, 8, 9, 11, 16, and
17. And for some others, we disagree with the phrasing (e.g., “Facebook User Data Profiles”). However, we seem to
have general agreement regarding the relevant source code (i.e., source code relating to the operation of the messages
product and Plaintiffs’ allegations of “scanning,” “intercepting,” etc. in connection with social plugins). It is of course
possible disputes will arise in the future regarding specific portions of the source code, but if that happens, I believe the
parties can resolve them.
Therefore, the kind of language I would propose we build into our stipulation is something along the following
lines: “Subject to the entry of an amended protective order governing the treatment of source code, Facebook has
agreed to make available source code relevant to Plaintiffs’ claims for the time period September 2009 to December
2012. In the event the parties dispute whether particular portions of the source code are relevant to Plaintiffs’ claims,
the parties will meet and confer in a good-faith attempt to resolve the dispute. If they cannot reach agreement, the
parties will brief the dispute for the Court.” Please let me know if this (or something along these lines) works. Again, I
don’t anticipate disputes, but this preserves all parties’ rights.
I also anticipate sending you proposed source code PO provisions by tomorrow.
Thanks,
Josh
Joshua A. Jessen

GIBSON DUNN
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412
1881 Page Mill Road, Palo Alto, CA 94304-1211
Tel [phone] • Fax [phone]
Tel + 650.849.5375
[e-mail] • www.gibsondunn.com

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