Campbell et al v. Facebook Inc.

Filing 213

Administrative Motion to File Under Seal Defendant Facebook, Inc.s Administrative Motion to File Documents in Support of Its Oppositions to Plaintiffs Motions to Compel Under Seal filed by Facebook Inc.. (Attachments: # 1 Declaration of Nikki Stitt Sokol In Support Of Defendant Facebook, Inc.s Administrative Motion to File Documents in Support of its Oppositions to Plaintiffs Motions to Compel Under Seal, # 2 [Proposed] Order Authorizing the Filing of Documents Under Seal, # 3 Exhibit 1 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Source Code, # 4 Exhibit 2 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Source Code, # 5 Exhibit 3 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 6 Exhibit 4 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 7 Exhibit 5 (Unredacted) Poole Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 8 Exhibit 6 (Redacted) Poole Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 9 Exhibit 7 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Documents, # 10 Exhibit 8 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Documents, # 11 Exhibit 9 (Unredacted) Maute Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Documents, # 12 Exhibit 10 (Redacted) Maute Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Documents, # 13 Proof of Service)(Jessen, Joshua) (Filed on 8/19/2016)

Exhibit 8
REDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED

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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 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.

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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,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH (SK)
DEFENDANT FACEBOOK, INC.’S
OPPOSITION TO PLAINTIFFS’
MOTION TO COMPEL PRODUCTION
OF DOCUMENTS
No Hearing Unless Requested By Court (Dkt.
203)
The Honorable Phyllis J. Hamilton

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. C 13-05996 PJH (SK)

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TABLE OF CONTENTS

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT ....................................................... 1

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II.

BACKGROUND ...................................................................................................................... 2

III.

LEGAL STANDARD ............................................................................................................... 4

IV.

ARGUMENT ............................................................................................................................ 4

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A.

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1.

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B.

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Plaintiffs’ Searches Will Produce a Review Population That Is
Unduly Burdensome ......................................................................................... 7

Facebook Has Proposed Proportional Additional Discovery ....................................... 7
1.

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C.
V.

Facebook’s Proposed Searches Are Appropriately Tailored to
URLs in Messages ............................................................................................ 7

2.

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Plaintiffs’ Proposed Date Range Is Overbroad and Unduly
Burdensome ...................................................................................................... 6

3.

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Plaintiffs’ Proposed Searches Are Not Tailored To Their Claims .................... 4

2.

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Plaintiffs’ Proposed Searches Are Overbroad and Unduly Burdensome ..................... 4

Facebook Already Agreed To Produce From Relevant NonIndividual Sources ............................................................................................. 8

If the Court Orders Expansive Discovery, Costs Should Be Shifted to Plaintiffs ........ 9

CONCLUSION ....................................................................................................................... 10

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiffs’ three motions to compel further discovery suffer from several similar problems.

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Fundamentally, Plaintiffs disregard their previous admission that only after the “extensive discovery”

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already completed was this case “appropriate for class certification” (Dkt. 177 at 4:22-23), and they

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also ignore this Court’s explicit instruction that any “additional discovery [shall be] confined to the

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limitations necessitated by the Court’s class certification ruling” (Dkt. 203). To thread this

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impossible needle, Plaintiffs misrepresent the history of the parties’ discovery to date and gloss over

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Facebook’s extensive production of documents, source code, written discovery responses, and the

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dozens of hours of deposition testimony during which Facebook engineers walked them through the

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relevant source code, line by line. Rather than engage in a small amount of additional discovery after

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this “extensive discovery,” Plaintiffs now seek to open the floodgates and request extremely broad

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additional discovery, without any concern for tailoring their requests to the claims and practices at

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issue, and the needs (and schedule) of the case at this stage of the litigation.

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The Court should deny all three motions. With respect to the present motion, after presenting

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a false account of the prior discovery in this case, Plaintiffs present the Court with proposed search

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terms, custodians, and date ranges that are inappropriate for three reasons. First, Plaintiffs’ request is

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overbroad and unduly burdensome because it fails to tailor the proposed search terms to the practices

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at issue (i.e., URLs in messages) and their relevant date ranges. Even obtaining “hit counts” for

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Plaintiffs’ proposed searches has cost Facebook tens of thousands of dollars, and the number of

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responsive documents from Plaintiffs’ proposed searches will require additional hundreds of

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thousands of dollars in discovery vendor costs alone (separate and apart from outside counsel fees for

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attorney review), which is unreasonable at this stage of the litigation—and in a case that concerns

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only injunctive relief. Plaintiffs’ overbroad discovery also will threaten the case schedule, further

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delaying a much-needed resolution of this case on the merits. Given these facts, the proposed

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discovery is not proportional, especially given the lack of importance of the information that

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Plaintiffs hope to receive. Indeed, given their elaborate representations to the Court in their class

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certification papers about the practices they now challenge, it is unclear what further information

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about those practices they need. Further extensive discovery will only confirm facts that Plaintiffs

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already know, as reflected in the detailed discovery and source code already provided.

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Second, Facebook has proposed additional discovery—based largely on Plaintiffs’ proposed

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terms and custodians—that is in fact proportional. Rather than compromise with Facebook in good

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faith, Plaintiffs took an absolutist position and filed an unnecessary and inaccurate motion. If the

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Court agrees that any additional discovery should be limited to the challenged practices, the Court

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need not wade into the morass of Plaintiffs’ proposed search terms. Facebook will proceed with its

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counterproposal, and if Plaintiffs can articulate a need for additional proportional discovery, the

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parties can work through that process and only involve the Court if truly necessary.

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Finally, in light of the “extensive” discovery already provided by Facebook in this case, the

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lack of need for the requested relief, and Plaintiffs’ disregard for the exorbitant costs of their

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overbroad requests, Facebook respectfully requests that if the Court is inclined to grant this Motion,

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then Plaintiffs should bear the cost of Facebook’s review of the results of their proposed searches.

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See In re Nat’l Ass’n of Music Merchants, Musical Instruments & Equip. Antitrust Litig., No. MDL

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2121, 2011 WL 6372826, at *4 (S.D. Cal. Dec. 19, 2011) (denying Plaintiffs’ request for Defendants

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to run additional searches but holding “to the extent Plaintiffs are willing to bear the cost of running

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the searches and conducting the review . . . cost shifting shall apply”).

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II.

BACKGROUND

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Plaintiffs filed this lawsuit over two and a half years ago, and they began propounding broad

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discovery over 18 months ago. Since then, Plaintiffs have served, and been permitted, wide-ranging

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discovery. Among other things, Plaintiffs have served 60 requests for production, propounded 8

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detailed interrogatories (to which Facebook has provided detailed, technical responses), reviewed

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Facebook’s highly confidential and proprietary source code for 86 days, and taken 8 days of

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deposition testimony from Facebook’s fact witnesses (including several days of 30(b)(6) deposition

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testimony) and two days of deposition testimony from Facebook’s experts. (Dkt. 201 at 5; Dkt. 114-

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1 ¶ 21.)

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After receiving Plaintiffs’ initial discovery requests, Facebook proactively engaged Plaintiffs’
counsel and identified the information that Facebook intended to provide. (Dkt. 114-1 ¶ 17.) The
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parties subsequently agreed on the document review set, including agreed-upon custodians, search

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terms, 1 and date ranges. (Id. ¶¶ 21-23.) At every step, Plaintiffs were consulted and involved

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throughout the collection and review process, and they were specifically advised of the significant

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details. (Id. ¶¶ 21-28.) Plaintiffs agreed to the processes Facebook employed. 2

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Indeed, Plaintiffs used the “rather extensive discovery” they received to argue that this case

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was “appropriate for class certification.” (Dkt. 177 at 4:22-23.) Plaintiffs repeatedly represented to

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this Court that only after “contentious and hard-fought discovery” (id. at 6:4-6) were they able to

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identify “new” practices and present them for the first time in their motion for class certification. 3

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(Id.; see also id. at 4:22-23, 18:8-11, 19:22-25.) Plaintiffs also submitted two lengthy declarations

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from their technical expert, Dr. Jennifer Golbeck, purporting to demonstrate that the challenged

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practices were suitable for certification and continued to the present day. (Dkt. 183-4; Dkt. 184-17.)

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Based on Plaintiffs’ representations, the Court certified a Rule 23(b)(2) injunctive relief class of

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Facebook users in the United States “who have sent, or received from a Facebook user, private

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messages that included URLs in their content (and from which Facebook generated a URL

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attachment) . . . .” (Dkt. 192 at 2-3.) The Court also permitted Plaintiffs to amend their complaint to

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include the new practices, such that Plaintiffs’ now challenge four practices: storage of the URL

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attachment (the “EntShare”), as well as three anonymous and aggregate “uses” of that information:

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(1) the counter next to the “Like” button plugin, (2) “recommendations for other users” in Facebook’s

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Plaintiffs’ complaint regarding the search term “share object” (a term they agreed to) is meritless.
The term “share object” appears throughout the documents produced by Facebook, and is used
extensively, including by Plaintiffs’ own expert in her declarations in this case and the source code
she relies upon. (See, e.g., Dkt. 199-2 ¶¶ 29, 32-43, 55, 57, 59, 63, 84, 96,99, 105.)
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Although Plaintiffs now claim to have objected to Facebook’s use of predictive coding, Facebook
advised Plaintiffs early on of its intention to use predictive coding and its methods for doing so.
Contrary to their assertion, Plaintiffs never objected, but instead merely raised questions concerning
the precise protocol used—to which Facebook diligently responded. (Dkt. 114-1 ¶¶ 23-28.)
Plaintiffs’ complaint about the use of “keyword culling” is another red herring, and their suggestion
that it is improper is incorrect. See Bridgestone Amers., Inc. v. IBM Corp., No. 13-1196, 2014 WL
4923014, at *2 (M.D. Tenn. July 22, 2014) (allowing a party to use search terms and then predictive
coding and refusing to compel production). Facebook repeatedly solicited ideas from Plaintiffs for
alternative methods for culling the massive results from the agreed-upon search terms, but Plaintiffs
declined to offer alternatives.
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That Plaintiffs were able to present these new practices to the Court based on Facebook’s past
productions disproves their assertion that those productions were limited to the “Like” count issue.
(Mot. at 2-3.)
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Recommendations Feed, and (3) the “sharing of user data with third parties” through Facebook’s

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“Insights” product. (Id. at 3-5.)

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Following the certification order, the Court and the parties anticipated that some additional

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follow-up discovery would be needed, and the Court set a schedule providing several additional

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months for that discovery. But the Court made clear that any “additional discovery [would be]

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confined to the limitations necessitated by the Court’s class certification ruling.” (Dkt. 203.)

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Despite the Court’s admonition, Plaintiffs now request an order compelling Facebook to use

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search terms that are not tailored to the challenged practices, not remotely confined to the needs of

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the case, and that would potentially more than double the document discovery to date. Facebook has

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agreed to provide additional document discovery (as well as updated interrogatories and additional

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deposition testimony (as necessary)), and has provided a counterproposal that limits Plaintiffs’

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searches to the subject matter of this case (URLs in messages). Plaintiffs rejected Facebook’s

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counterproposal and refused to negotiate any further.

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III.

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LEGAL STANDARD

Federal Rule of Civil Procedure 26 governs the scope of permissible discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.

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Fed. R. Civ. P. 26(b)(1) (emphasis added). “[A] party seeking discovery of relevant, non-privileged

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information must now show, before anything else, that the discovery sought is proportional to the

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needs of the case.” Gilead Scis., Inc. v. Merck & Co, Inc., No. 13–04057–BLF, 2016 WL 146574, at

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*1 (N.D. Cal. Jan. 13, 2016).

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IV.
A.

ARGUMENT

Plaintiffs’ Proposed Searches Are Overbroad and Unduly Burdensome

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1.

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Plaintiffs bring this case on behalf of a class of users that sent or received URL attachments in

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Plaintiffs’ Proposed Searches Are Not Tailored To Their Claims

messages, and they assert claims based on four practices (creation of EntShares, “Like” count,
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Insights, and Recommendations) as they relate to Facebook’s processing of URLs in messages. (Dkt.

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192; Dkt. 196.) Yet Plaintiffs refuse to tailor their proposed search terms to their claims and class.

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See Fed. R. Civ. P. 26(a)(1) (limiting discovery to the “claim[s] or defense[s]”). Instead, Plaintiffs

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insist on pursuing subject matters beyond the scope of their complaint. For example, they seek

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documents pertaining to “logging Private Message content for future use,” but Plaintiffs’ case is not

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broadly about “Private Message content.” Rather, their case is about four practices as they relate to

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URLs in messages, on behalf of a class of people who sent or received URLs in messages. There is

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no reason for Facebook to search for documents that are not related to those practices and their class.

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See Hughes v. LaSalle Bank, N.A., 2004 WL 414828, at *1 (S.D.N.Y. Mar. 4, 2004) (“The purpose of

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discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a

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claim exists.”).

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The parties have agreed to a set of keywords—pertaining to certain Facebook features, tables,

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code files, and data structures—as the foundation for any further searches. (See the far-left column in

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Plaintiffs’ Appendix A to their Motion to Compel, Dkt. 208 at A-1.) But they do not agree on the

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proper limiting terms that will narrow the keywords to the actual practices at issue (“limiting terms”).

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Plaintiffs propose a set of terms that purports to limit the searches to the challenged practices, but

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even a cursory review reveals that their terms are not tailored to their claims. These are just a few

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examples:

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Searches using the limiting words “bootcamp,” “node,” or “API” are limited to neither URLs
nor Facebook messages.

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Searches using the word “EntShares” are not limited to URLs or messages. EntShares store
many other kinds of attachments (such as videos) and are created as a result of many other
kinds of actions (such as sharing URL attachments in public posts). (Dkt. 170-2 ¶ 6.)

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The search for “tracking_info” is not limited to URLs in messages, since it will yield
information regarding different sharing methods, such as posts, comments, and clicks on a
“Like” button. (Dkt. 184-11 ¶¶ 23-24.)

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Searches using the limiting word “Hbase” are not limited to URLs in Facebook messages.
Hbase is
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The search for “Domain Insights” is likewise not limited to URLs in messages. “Domain
Insights” refers to an entire product team at Facebook, and the product involves information
about all kinds of engagement with URLs, not just in messages. (Dkt. 184-11 ¶¶ 58-60.)

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These are just a few examples of the overbreadth that is characteristic of each of Plaintiffs’

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proposed searches. 4 Simply stated, searches that are not limited to the use of URLs in messages in

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one of the challenged practices are beyond the scope of Plaintiffs’ case and the additional discovery

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envisioned by the Court. (See, e.g., Dkt. 192 at 10 (“[a]ny messages that did not generate a URL

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attachment (or share object) have already been excluded from the class definition, and thus, they are

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not relevant” (emphasis added)); Dkt. 203 (discovery must be “confined to the limitations

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necessitated by the Court’s class certification ruling”).) Plaintiffs’ proposed terms seek material well

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beyond the scope of permissible discovery, and this Court should not order their use. See, e.g.,

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TVIIM, LLC v. McAfee, Inc., No. 13-04545-VC, 2014 WL 5280966, at *2 (N.D. Cal. Oct. 15, 2014)

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(holding that responding party was not required to run search terms that were “not sufficiently

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narrowed by other keywords to reduce the risk of overproduction”); I-Med Pharma Inc. v. Biomatrix,

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Inc., No. 03–3677, 2011 WL 6140658, at *5-6 (D.N.J. Dec. 9, 2011) (affirming decision that party

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would not be forced to undertake an “enormously expensive” review based on overbroad search

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terms); Perry v. Schwarzenegger, 268 F.R.D. 344, 354 (N.D. Cal. 2010) (affirming decision to adopt

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a small number of terms because the other proposed terms “do not appear tailored to cabin

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production”). 5

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2.

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Plaintiffs propose that all searches be run on all documents for a six-year period—from April

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2010 to May 18, 2016 (the date of certification). (Mot. at 9.) This date range is overbroad because it

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does not track the operative dates of the challenged practices during the class period. Proportional,

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additional discovery should be limited to the time periods when each of the challenged practices was

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actually occurring during the class period; anything more is not proportional in light of the extensive

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discovery already conducted in this case. 6

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Several of Plaintiffs’ proposed search terms also are too generic. For example, “share,” “like,”
“taste,” “entity,” and “graph” (and other terms) are simply too broad to be effective limiting terms.
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Plaintiffs’ reference to the Quartz article (Dkt. 209-6) in footnote 33 of their motion is merely
another attempt to try to justify additional expansive discovery. The practice discussed in that article
(a) is not a practice challenged in the complaint, and (b) is included in the source code that Plaintiffs
have had for over a year. (Poole Decl. In Support of Facebook’s Opp. to Pls.’ Mot. to Compel
Source Code ¶ 11.) Plaintiffs’ suggestion that it has been concealed is baseless. Plaintiffs already
have discovery pertaining to this practice.
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The appropriate date range for each search is the beginning of the class period (Dec. 30, 2011) to
the date when the practice of including URLs in messages in that product was discontinued—late

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Plaintiffs’ Proposed Date Range Is Overbroad and Unduly Burdensome

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3.

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Even collecting documents to learn how many are responsive to Plaintiffs’ proposed searches

Plaintiffs’ Searches Will Produce a Review Population That Is Unduly Burdensome

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has already cost Facebook approximately $50,000 in discovery vendor services alone. (Declaration

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of Jeana Bisnar Maute (“Maute Decl.”) ¶ 3.) In fact, Plaintiffs’ proposed searches from individual

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custodians alone would result in almost 100,000 documents for review. (Id.) Facebook has already

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incurred hundreds of thousands of dollars in discovery vendor costs for this matter, and, Facebook

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estimates that, if ordered to use Plaintiffs’ proposed searches, it would incur another several hundred

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thousand dollars in discovery costs. (Id.) These estimates do not include any resources expended

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internally at Facebook or outside counsel fees, the latter of which is likely to be in the hundreds of

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thousands of additional dollars. Facebook also estimates that it would take several months to

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complete review of the documents, risking further delaying a resolution of this matter on the merits.

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Furthermore, given the post-certification stage of this case, where there has already been

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“extensive discovery” (and where damages are no longer at issue), this expenditure would serve no

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purpose other than to drive up Facebook’s costs. This discovery would only confirm facts that

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Plaintiffs already know, as reflected in the detailed discovery and source code already provided. The

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Court should not order the use of overbroad search terms that will generate a large volume of results,

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especially when Plaintiffs have articulated no legitimate need to develop any issues within the scope

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of their case that are not addressed by Facebook’s proposed discovery. See Vasudevan Software, Inc.

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v. Microstrategy Inc., No. 11-06637-RS, 2012 WL 5637611, at *5 (N.D. Cal. Nov. 15, 2012) (“the

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right way to resolve [a search term] dispute is to consider the yield against the purported need”).

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B.

Facebook Has Proposed Proportional Additional Discovery

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1.

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Facebook’s proposed searches (see fourth column of Appendix A to Plaintiffs’ motion) add

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limiting terms that appropriately cabin further searches to URLs in messages. Plaintiffs argue that

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Facebook’s Proposed Searches Are Appropriately Tailored to URLs in Messages

2012 for Insights-related searches, May 9, 2014 (when the backup system was removed) for
Recommendations-related searches, and the date of certification (May 18, 2016) for EntShare-related
searches. Facebook is not asking Plaintiffs to take its word regarding when these practices ceased.
On the contrary, Facebook has provided documents, testimony, and/or relevant source code reflecting
the discontinuation dates, and Facebook also offered to provide additional discovery and stipulations
related thereto. (See Facebook’s Opp. to Pls.’ Mot. to Compel Source Code at 6-8, 10.)
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Facebook’s limitations are not appropriate because at least some relevant documents have already

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been produced that do not contain these terms. (Mot. at. 7-8.) But this is not the test for appropriate

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search criteria; the goal is not to craft a search that will be sure to sweep in every potentially relevant

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document regardless of the cost and burden. It is instead to craft reasonable searches, tailored to the

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claims and defenses, that are proportional to the needs of the case. Plaintiffs have already made

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emphatic representations regarding the functionality of all of the challenged practices in this case,

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including up to the present day, in their certification papers, based in large part on a lengthy

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declaration from Dr. Golbeck, who opined that she was comfortable drawing her conclusions based

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on the information she already had. (Dkt. 183-4 ¶¶ 57-78, 82-97; Dkt. 184-9 at 203:2-7 (confirming

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she is “comfortable giving opinions about the operation of Facebook’s messaging system after

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December 2012”).) Plaintiffs cannot now claim—in good faith, and consistent with their prior

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representations to the Court—that they need significant additional discovery. Proportional additional

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discovery must be limited to the practices actually at issue (both in time and scope) and take into

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account the extensive information Plaintiffs already have. Facebook’s proposal does exactly that.

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2.

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Plaintiffs state in their motion that “Facebook has resisted searching documents from the non-

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individual custodial sources . . . .” (Mot. at 10.) This is not true. On the contrary, Facebook already

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produced documents from these non-individual custodian sources and has expressed willingness to

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produce from them again, noting only that a different approach is necessary “since those sources do

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not have search capabilities that will allow for the types of searches we are considering for emails,

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and they also are not amenable to efficient collection processes.” (Dkt. 209-1.) Instead of discussing

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this issue, Plaintiffs simply filed their motion and mischaracterized Facebook’s statement. If

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Plaintiffs had agreed to discuss this matter with Facebook, Facebook would have explained the

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following:

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Facebook has already agreed to produce from the 12 individual custodians listed, as well as
the Salesforce documents, which have the same search and collection capacity. (Id.)

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Facebook’s
system should not be searched separately, since all
alerts are sent to
the relevant custodian’s email, and therefore this search would be duplicative of other
discovery. (Maute Decl. ¶ 5.)

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Facebook Already Agreed To Produce From Relevant Non-Individual Sources

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•

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•

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This is an extremely labor-intensive
process. A search for “EntShare” alone resulted in over 10,000 results, and it is simply too
burdensome to manually export each document for all searches for all words in Plaintiffs’
proposed searches. (Id. ¶ 4.)

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6

•

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. This is an
extremely labor-intensive process. If Plaintiffs identify a specific page from
or
, Facebook can consider restoring those pages manually. (Id. ¶ 7.)

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Several of these “custodians” (Facebook Temp, Facebook Email, Facebook) are likely to be
metadata errors (not separate custodians), which Facebook is happy to discuss with Plaintiffs
to ascertain whether custodian information is available for those documents. (Id. ¶ 6.)

In short, there is no dispute as to almost all of the non-individual sources. But
, and

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and

,

systems simply do not have the capacity to search and

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export documents responsive to Plaintiffs’ proposed searches in bulk, and this Court should not order

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Facebook to do so. See Helmert v. Butterball, LLC, No. 08-00342, 2010 WL 2179180, at *4-5 (E.D.

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Ark. May 27, 2010) (rejecting search terms that are impossible to execute).

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Facebook has already begun to run tailored searches to identify additional potentially

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responsive documents. If the Court agrees that additional discovery should be limited to the

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challenged practices, the Court need not wade into the details of proposed search terms. Facebook

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will proceed with its counterproposal, and the parties can only involve the Court if truly necessary.

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C.

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If the Court Orders Expansive Discovery, Costs Should Be Shifted to Plaintiffs
In light of the extensive discovery already conducted, the significant costs already incurred by

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Facebook, and the broad nature of the discovery requested, if the Court orders expansive further

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discovery, Facebook requests that the Court shift costs to Plaintiffs. To determine whether a request

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imposes an “undue burden or expense” on a responding party, thereby warranting cost-shifting,

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courts in the Ninth Circuit evaluate seven factors “weighted more-or-less in the following order”:

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1. The extent to which the request is specifically tailored to discover relevant
information; 2. The availability of such information from other sources; 3. The total cost
of production, compared to the amount in controversy; 4. The total cost of production,
compared to the resources available to each party; 5. The relative ability of each party
to control costs and its incentive to do so; 6. The importance of the issues at stake in the
litigation; and 7. The relative benefits to the parties of obtaining the information.
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. C 13-05996 PJH (SK)

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OpenTV v. Liberate Techs., 219 F.R.D. 474, 475-76 (N.D. Cal. 2003) (quotation omitted).

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All of these factors support denying Plaintiffs’ Motion: As to the first two factors, Plaintiffs’

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proposed terms are not specifically tailored to discover relevant information, and the information

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Plaintiffs purport to seek has already been produced through other sources. (See Facebook’s Opp. to

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Pls.’ Mot. to Compel Source Code.) As to the third and fourth factors, the amount in controversy is

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zero, given this Court’s denial of a damages class under Rule 23(b)(3), and, while Facebook has

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considerable resources, a parties’ resources do not “justify unlimited discovery.” Fed. R. Civ. P. 26,

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Adv. Comm. Note. Facebook has already incurred excessive discovery costs in this matter, and

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Plaintiffs’ overbroad discovery requests (and lack of incentive to conserve costs) should not

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continually result in undue burden on Facebook. 7 If Plaintiffs are confident that the expansive

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discovery requested is necessary, they should be more than willing to incur the costs. 8

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Finally, if Plaintiffs’ discovery delays the current schedule, Facebook respectfully requests an

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opportunity to file its motion for summary judgment regarding the cessation of several challenged

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practices on an earlier schedule. Those issues are ready for resolution now. Facebook should not be

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required to wait until Plaintiffs have completed their fishing expedition to resolve this litigation.

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V.

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CONCLUSION

Plaintiffs have sought and obtained “extensive discovery,” and they should not be permitted

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to conduct sweeping additional discovery outside the bounds of this Court’s class certification ruling.

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Rather than compromise with Facebook in good faith, Plaintiffs filed an unnecessary and costly

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motion to compel that serves no purpose but to run up Facebook’s already significant discovery costs.

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Facebook plans to provide proportional discovery, and the Court should deny Plaintiffs’ Motion.

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See, e.g., Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 575 (N.D. Ill. 2004) (splitting costs
because “several hundred thousand dollars for one limited part of discovery is a substantial amount”);
Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002) (“The less
specific the requesting party’s discovery demands, the more appropriate it is to shift the costs.”);
Byers v. Illinois State Police, No. 99-8105, 2002 WL 1264004, at *12 (N.D. Ill. June 3, 2002) (costshifting where “plaintiffs are in the best position to control the total cost of production”).
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See Musical Instruments & Equip. Antitrust Litig., 2011 WL 6372826 at *4; Boeynaems v. L.A.
Fitness Int’l, 285 F.R.D. 331, 335 (E.D. Pa. 2012) (“If Plaintiffs’ counsel has confidence in the merits
of the case, they should not object to making an investment in the cost of securing documents.”).
7

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. C 13-05996 PJH (SK)

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Dated: August 19, 2016

Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:

/s/
Joshua A. Jessen
Attorneys for Defendant FACEBOOK, INC.

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Case No. C 13-05996 PJH (SK)