Campbell et al v. Facebook Inc.
Filing
219
NOTICE of Refiling re Motion to Compel Discovery and Supporting Documents by Matthew Campbell, Michael Hurley re 218 Order on Administrative Motion to File Under Seal. (Attachments: # 1 Exhibit 1 - Replacement for Dkt. 205-4, # 2 Exhibit 2 - Replacement for Dkt. 205-6, # 3 Exhibit 3 - Replacement for Dkt. 205-8, # 4 Exhibit 4 - Replacement for Dkt. 205-10, # 5 Exhibit 5 - Replacement for Dkt. 205-12, # 6 Exhibit 6 - Replacement for Dkt. 205-16, # 7 Exhibit 7 - Replacement for Dkt. 205-17, # 8 Exhibit 8 - Replacement for Dkt. 205-18, # 9 Exhibit 9 - Replacement for Dkt. 205-19, # 10 Exhibit 10 - Replacement for Dkt. 205-15, # 11 Exhibit 11 - Replacement for Dkt. 205-21)(Gardner, Melissa) (Filed on 10/18/2016) Modified on 10/19/2016 (kcS, COURT STAFF).
EXHIBIT 6
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MATTHEW CAMPBELL, MICHAEL HURLEY, )
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and DAVID SHADPOUR,
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)
Plaintiffs,
vs.
)
) Case No.
FACEBOOK, INC.,
) C 13-05996 PJH
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Defendant.
)
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_________________________________ )
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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VIDEOTAPED DEPOSITION OF ALEX HIMEL
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Palo Alto, California
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February 4, 2016
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Volume I
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Reported by:
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KELLI COMBS, CSR No. 7705
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JOB No. 2224922
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PAGES 1 - 266
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EntGlobalShare within this lawsuit, have you -- are
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there any specific examples you can point to of that
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term being used the way that it's being used in your
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in which no" --
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declaration?
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It's at line 26:
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A
It's not clear to me what would or would
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3:22:37PM
not be included on the definition you're giving me.
Q
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3:26:25PM
"There are many circumstances
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"There are many circumstances
A
That's correct.
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Q
Are people who -- Facebook employees who
generated, including if the user
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does not have JavaScript enabled."
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3:22:50PM
Do you see that?
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A
I do.
Q
Why would a URL preview not be generated
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are not discussing material that's directly related
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to the litigation in this case, has that term been
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used to refer to EntShare and EntGlobalShare?
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The -- one of the things that I'm getting
3:26:33PM
in which no URL preview will be
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You don't understand what I mean when I
say "outside the context of this lawsuit"?
A
Paragraph 20, you state:
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Q
3:26:43PM
if JavaScript was not enabled?
A
So -- so this -- the answer to this
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tripped up on here is I believe EntShare and
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break where we were looking at one of the exhibits
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EntGlobalShare are the material relevant to this
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in the previous declaration that had the word
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case. So I can't -- I'm having trouble figuring out
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"Titan" in it. It's when you asked about that.
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where in the Venn diagram this would be.
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Q
Uh-huh.
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A
The answer to this is that the code that
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Q
3:23:25PM
question is what we covered right before the last
If a Facebook engineer were to refer to an
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EntShare object or EntGlobalShare object, they'd be
3:23:50PM 20
detects a URL is present and then renders an
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more likely to use those terms than "share object,"
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attachment, is written in JavaScript, and so if
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the term "share object"; is that correct?
3:27:00PM
3:27:15PM
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JavaScript is not enabled and/or there is a -- an
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A
I'd be speculating at that point.
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error in JavaScript, because it's a single-threaded
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Q
What do you think the answer to that
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language, it means that it would be physically
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impossible for a code to be brought in to generate a
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question is?
3:24:02PM
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MR. JESSEN: Objection; calls for
3:24:03PM
speculation, lacks foundation.
THE WITNESS: I can tell you I would say
"EntShare" or "EntGlobalShare," and I find that
engineers tend to like to be specific, but it's
3:24:13PM
really difficult for me to talk on behalf of
other -- others.
BY MR. RUDOLPH:
Q Paragraph -- paragraph 16, line 1 says:
"These URL share objects are
3:24:56PM
stored in a system called TAO."
What is TAO?
A TAO is -- TAO is similar to what we were
talking about a minute or two ago. TAO is what I
would call an abstraction. In the -- in the past,
3:25:15PM
before TAO, engineers would have to write SQL
statements to directly read and write from databases
and then would have to explicitly set the cache keys
and in what would or wouldn't be stored in our
Memcached layer.
3:25:45PM
The beauty of TAO, which is a system that
was built at Facebook, is that it abstracts that
away and makes it so that engineers don't have to
worry about nuances of that logic and can just
interact directly with objects.
3:26:05PM
3:27:37PM
Page 156
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2
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URL preview in that case.
3:27:39PM
Q Is it possible to send a private message
on Facebook without JavaScript enabled?
MR. JESSEN: Object to the form.
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THE WITNESS: Where would I be sending --
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from?
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3:27:57PM
in your question, where would the message be sent
BY MR. RUDOLPH:
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Q A standard desktop computer. Are you
saying geographic location?
3:28:12PM
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A No, not saying geographic location. So
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desktop computer, a Web browser on a desktop
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computer?
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Q Right. Yeah.
A It would be possible to send a private
3:28:22PM
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message without JavaScript enabled on a desktop
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computer in most cases. I -- yes, it would be
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possible to send.
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Q Okay.
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If a typical user disables JavaScript in
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their browser and they try to send a private
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message, the private message field, composition
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field, will still show up to them?
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3:28:47PM
MR. JESSEN: You're talking about messages
without URLs?
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Q
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But do you know what it is without looking
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at the declaration?
Yeah, of course.
Okay. So -- I'm sorry.
So you were answering my -- my previous
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question.
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A
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Q
Where is it in Exhibit B?
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A
Basically the point of Exhibit B is it
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Right.
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MR. RUDOLPH: Let's take a break.
THE VIDEOGRAPHER: We're going off the
record at 5:19.
(Recess taken.)
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THE VIDEOGRAPHER: We're now going back on
MR. RUDOLPH: I'd like to have the next
exhibit marked.
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5:15:46PM
(Deposition Exhibit 4 marked for
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identification.)
Page 206
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5:19:32PM
the record. The time is 5:38.
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BY MR. RUDOLPH:
5:39:00PM
Q Mr. Himel, do you know what this document
is?
A This is not something that I looked at
before.
5:39:19PM
Q Okay.
Do you know what data is represented in
this document?
A IP -- I mean, I can -- I'm reading the
names of the fields and the content in here, but
5:39:35PM
this is not something that I've looked at before.
Q Okay.
You see at the top, it says "Titan Info
for 1556441609"?
A I see it says that at the top.
5:39:54PM
Q And do you have any idea what that's
referring to?
A I would just be speculating.
Q To the best of your knowledge, what does
that refer to?
5:40:07PM
MR. JESSEN: Objection; calls for
speculation.
THE WITNESS: I would just be speculating
on this.
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BY MR. RUDOLPH:
7:00:02PM
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Q What else? Let me withdraw that.
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Did you write any of the content that is
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contained in this response to Interrogatory No. 2?
MR. JESSEN: Object to the form.
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THE WITNESS: I contributed content.
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BY MR. RUDOLPH:
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Q Interrogatory No. 2.
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Any of the other interrogatory responses?
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A Number 3.
7:01:26PM
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Q Mr. Himel, I'm going to withdraw that
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question.
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If you look at page 47, do you see the
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verification?
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A Uh-huh.
7:02:55PM
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Q Can you read into the record the sentence
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starting with "I understand," starting at line 6,
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please.
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A (Reading):
"I understand that the facts
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stated in Facebook's responses were
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assembled by authorized employees,
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agents and/or legal representatives
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of Facebook and am informed and
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believed that, subject to any
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in my declarations and in preparation for this
asking me, did I do special stuff in addition to
what is already relevant to these other documents in
preparation, or if you're asking me in general, did
BY MR. RUDOLPH:
Q
So let me ask you this: Prior to signing
this verification, did you review the entirety of
this document to ensure that it is true and correct,
inadvertent errors or omissions,
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the information contained in those
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3
responses is true and correct based
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4
on the records of Facebook and
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information reasonably available to
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its employees, agents and/or legal
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representatives."
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Q
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5
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subject to any inadvertent errors or omissions, the
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information contained in these responses is true and
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correct?
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1
Did you do anything to verify that,
7:04:14PM 10
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MR. JESSEN: And you should exclude from
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your answer anything you did at the direction of
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counsel or any conversations you had with counsel.
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MR. RUDOLPH: I don't think that's a
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7:04:30PM
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proper instruction. I'm not asking for the
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substance of communications. I'm just asking what
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he did.
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MR. JESSEN: If he did something to verify
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at the direction of counsel, you're getting into
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privileged communications.
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7:04:36PM
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THE WITNESS: I'm -- I'm not sure how to
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answer the question because I don't understand if
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there's overlap, substantial overlap, between the
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content that's in here and the content that you find
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7:04:59PM
7:05:39PM
subject to any inadvertent errors or omissions?
A
I did review the content of this document
to make sure it's correct, subject to any
inadvertent errors or omissions.
Q
Okay.
7:06:00PM
Did you speak with anyone within Facebook
to verify the contents of this document are true and
correct?
A
You mean outside of the -- outside of
counsel and outside of the presence of counsel?
Q
7:06:12PM
No. Did you speak to any Facebook
employees, with or without counsel, to verify the
responses in this document are true and correct?
A
I don't remember talking to anyone beyond
counsel while I reviewed this.
7:06:35PM
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I do things to prepare, verify and respond.
Page 242
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deposition, and so I -- I can't tell if you're
Q Is it your belief still today that these
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responses are true and correct?
A I haven't read every word of this
document, but if you want me to, I can read it again
today.
7:06:59PM
Q Well, you've read every word of it prior
to signing this verification, though, right?
A As of September 8th, 2015, when I signed
it, it was my belief that the facts stated in this
document were correct. I haven't reread it today
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on -- in February of 2016. But if you want me to
reread it and verify, I can do that now.
Q No, that's fine. You don't need to do
that.
If you could look at Exhibit 5 again,
7:07:34PM
please. Did you have any conversations with Mark
Zuckerberg regarding the decision to drop private
message sends from contributing to the "Like"
button?
MR. JESSEN: Object to the form.
7:08:11PM
THE WITNESS: I do not recall having any
in-person discussions with Mark with respect to the
counter that we rendered next to the social plug-in
on third-party websites.
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BY MR. RUDOLPH:
Q
7:08:28PM
Did you have any conversations with him
over the phone or over Video Chat?
A
I did not have any phone or video
conversations with Mark relative to the same thing.
Q
7:08:36PM
Did you have any conversations with Cheryl
Sandberg related to this issue?
A
I did not have any conversations with
Cheryl Sandberg related to the counter next to
social plug-ins.
Q
7:08:57PM
In October, let's say, the latter half of
2012, how often did you speak with Mark Zuckerberg?
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MR. JESSEN: Object to the form.
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In October?
MR. RUDOLPH: Let me withdraw that.
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BY MR. RUDOLPH:
Q
In the -- let's just say in 2012 in
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general, how often did you speak with Mark
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Zuckerberg?
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MR. JESSEN: Object to the form.
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THE WITNESS: In 2012 -- 2012, I lived in
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New York, and so I didn't see or speak to Mark or
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other people who were in California very frequently.
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BY MR. RUDOLPH:
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Q
7:09:26PM
But you can't remember whether or not you
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7:09:57PM
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had a conversation with him related to this topic;
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is that correct?
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A
7:09:59PM
That's -- that's not what I said. I do --
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do not believe I had a conversation with Mark
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relative -- relevant to this conversation -- to this
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topic.
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Q
7:10:11PM
Q Did anyone ever complain to Facebook about
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Are you sure you did not have a
5
the incrementing of the Like counter based on URLs
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sent in private messages that was made public in
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conversation with him related to this topic?
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October 2012?
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MR. JESSEN: Object to the form.
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7:13:26PM
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THE WITNESS: It's -- it's impossible for
7:10:22PM
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MR. JESSEN: Object to the form; lacks
foundation.
7:13:48PM
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me to state if I talked to someone three and a half
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12
years ago. I very strongly do not recall having a
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in front of me, I believe there is a Wall Street
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conversation with Mark about this topic in person.
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Journal article that's referenced where there is a
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BY MR. RUDOLPH:
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vocal user complaining about incrementing the
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counter next to social plug-ins from private
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messages.
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BY MR. RUDOLPH:
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THE WITNESS: In the exhibits you placed
7:14:09PM
Q Did any users contact Facebook directly
regarding this issue?
A I can't answer that question confidently.
7:14:23PM
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e-mail was not public to be contacted. I did not
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work in a capacity of where I would handle incoming
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bugs or, otherwise, see directly what users were
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I was not a -- I did not work in -- I did not -- my
liking or not liking.
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Q Was there a team within Facebook that
7:14:53PM
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A
We thought we were -- we thought we were
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fielded those sorts of complaints?
7:18:17PM
building a feature that was good for users. We
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thought we were building a feature that would give
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if you go through the Help Center on Facebook.com
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users a more comprehensive and accurate sense of how
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and fill out -- fill out what's not working for you
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much engagement there was for a particular URL.
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or -- or what is -- what features are -- are
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frustrating, it gets routed to our Internal
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apparent that there was a very vocal set of users
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Operations team who is able to respond to customers,
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who really did not like the feature, and we reacted
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is available to look at aggregate sentiment and
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to that vocal sentiment of a set of users by
3
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A There's a -- there's a -- if you -- well,
bubble-up issues.
7:15:09PM
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7:18:30PM
However, in October of 2012, it became
changing the way the feature was implemented,
7:18:54PM
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Q Is there a group within the Internal
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specifically by no longer including the share_count
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Operations team who's responsible to look at
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as part of the count that was rendered next to a
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aggregate sentiment?
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social plug-in.
MR. JESSEN: Objection; calls for
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speculation.
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7:15:58PM
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Q
But Facebook continued to and continues to
this day to keep track of the share_count, correct?
7:19:11PM
MR. JESSEN: Object to the form.
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THE WITNESS: I don't work on the
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Operations team and -- and never have, but I think
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that's a core part of what they do.
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other declarations, the share_count allows us to do
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BY MR. RUDOLPH:
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a bunch of other features that provide benefit and
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safety to the users of our site.
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Q Did you ever hear of Facebook users
7:19:27PM
MR. RUDOLPH: Why don't you let us take a
contacting Facebook to complain about this practice?
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MR. JESSEN: Object to the form; vague as
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quick break. How much time is left?
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THE REPORTER: 6:52.
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7:16:15PM
THE WITNESS: As is stated in one of the
to time.
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THE WITNESS: The first I personally heard
25
about this was around the time that this Wall Street
MR. RUDOLPH: Okay. Let's take a quick
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7:16:35PM
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break, and if I have any more questions, I'll ask
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Journal article was published.
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BY MR. RUDOLPH:
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7:20:10PM
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them.
7:20:12PM
THE VIDEOGRAPHER: Off the record at 6:20
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[sic].
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Q
But after the article was published.
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A
After the article was published, it was a
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THE REPORTER: 7:20.
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VIDEOGRAPHER: 7:20, sorry.
5
few days later that we removed the feature, and
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so -- or we changed the way the feature works, and
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so it would have been surprising to hear sentiment
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after we changed the way the feature worked.
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7:20:16PM
the record. The time is 7:25.
BY MR. RUDOLPH:
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Q
And -- and -- and what did you change with
respect to how the feature worked?
(Recess taken.)
THE VIDEOGRAPHER: We're now going back on
7:17:13PM
MR. JESSEN: Objection; asked and
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7:16:49PM
answered.
THE WITNESS: As we've gone over in detail
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previously today, the change that was made in
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October of 2012 was to no longer include the
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share_count field as part of the counter next to the
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social plug-in.
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BY MR. RUDOLPH:
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Q
7:17:23PM
So when I asked a little bit earlier, "Did
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you ever hear of Facebook users contacting Facebook
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to complain about this practice?" you said, "The
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first time I personally heard about this was around
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the time that this Wall Street Journal article was
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published."
25
What -- what do you mean by "this"?
7:17:56PM
7:18:10PM
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I, the undersigned, a Certified Shorthand
Reporter of the State of California, do hereby certify:
That the foregoing proceedings were taken
before me at the time and place herein set forth; that
any witnesses in the foregoing proceedings, prior to
testifying, were administered an oath; that a record of
the proceedings was made by me using machine shorthand
which was thereafter transcribed under my direction;
that the foregoing transcript is a true record of the
testimony given.
Further, that the foregoing pertains to the
original transcript of a deposition in a Federal Case,
before completion of the proceedings, a review of the
transcript [ ] was [X] was not requested.
I further certify I am neither financially
interested in the action nor a relative or employee of
any attorney or any party to this action.
IN WITNESS WHEREOF, I have this date
subscribed my name.
Dated: 2/8/2016
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