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

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

Page 1

1
2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

3

OAKLAND DIVISION

4
5

MATTHEW CAMPBELL, MICHAEL HURLEY, )

6

and DAVID SHADPOUR,

7
8
9

)

Plaintiffs,
vs.

)
) Case No.

FACEBOOK, INC.,

) C 13-05996 PJH

10

Defendant.

)

11

_________________________________ )

12
13

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

14
15

VIDEOTAPED DEPOSITION OF ALEX HIMEL

16

Palo Alto, California

17

February 4, 2016

18

Volume I

19
20
21

Reported by:

22

KELLI COMBS, CSR No. 7705

23

JOB No. 2224922

24
25

PAGES 1 - 266

Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

EntGlobalShare within this lawsuit, have you -- are

2

there any specific examples you can point to of that

2

3

term being used the way that it's being used in your

3

in which no" --

4

declaration?

4

It's at line 26:

5
6
7
8

A

It's not clear to me what would or would

3:22:21PM

3:22:37PM

not be included on the definition you're giving me.
Q

1

3:26:25PM

"There are many circumstances

5

"There are many circumstances

A

That's correct.

10

Q

Are people who -- Facebook employees who

generated, including if the user

8

does not have JavaScript enabled."

9
3:22:50PM

Do you see that?

10

A

I do.

Q

Why would a URL preview not be generated

11

are not discussing material that's directly related

11

12

to the litigation in this case, has that term been

12

13

used to refer to EntShare and EntGlobalShare?

13

The -- one of the things that I'm getting

3:26:33PM

in which no URL preview will be

7

You don't understand what I mean when I

say "outside the context of this lawsuit"?

A

Paragraph 20, you state:

6

9

14

Q

3:26:43PM

if JavaScript was not enabled?
A

So -- so this -- the answer to this

14

15

tripped up on here is I believe EntShare and

15

break where we were looking at one of the exhibits

16

EntGlobalShare are the material relevant to this

16

in the previous declaration that had the word

17

case. So I can't -- I'm having trouble figuring out

17

"Titan" in it. It's when you asked about that.

18

where in the Venn diagram this would be.

18

Q

Uh-huh.

19

A

The answer to this is that the code that

19

Q

3:23:25PM

question is what we covered right before the last

If a Facebook engineer were to refer to an

20

EntShare object or EntGlobalShare object, they'd be

3:23:50PM 20

detects a URL is present and then renders an

21

more likely to use those terms than "share object,"

21

attachment, is written in JavaScript, and so if

22

the term "share object"; is that correct?

3:27:00PM

3:27:15PM

22

JavaScript is not enabled and/or there is a -- an

23

A

I'd be speculating at that point.

23

error in JavaScript, because it's a single-threaded

24

Q

What do you think the answer to that

24

language, it means that it would be physically

25

impossible for a code to be brought in to generate a

25

question is?

3:24:02PM

Page 154
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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
1
2
3

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.

4

THE WITNESS: Where would I be sending --

5
6
7

from?

8

3:27:57PM

in your question, where would the message be sent
BY MR. RUDOLPH:

9
10

Q A standard desktop computer. Are you
saying geographic location?

3:28:12PM

11

A No, not saying geographic location. So

12

desktop computer, a Web browser on a desktop

13

computer?

14
15

Q Right. Yeah.
A It would be possible to send a private

3:28:22PM

16

message without JavaScript enabled on a desktop

17

computer in most cases. I -- yes, it would be

18

possible to send.

19

Q Okay.

20

If a typical user disables JavaScript in

21

their browser and they try to send a private

22

message, the private message field, composition

23

field, will still show up to them?

24
25

3:28:47PM

MR. JESSEN: You're talking about messages
without URLs?

Page 155

3:29:04PM

Page 157

Pages 154 to 157
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2

Q

3

A

4

Q

5
6

But do you know what it is without looking

5:05:53PM

at the declaration?
Yeah, of course.
Okay. So -- I'm sorry.
So you were answering my -- my previous

5:05:59PM

question.

7

A

8

Q

Where is it in Exhibit B?

9

A

Basically the point of Exhibit B is it

10

Right.

5:06:11PM

11
12
13
14
15

5:06:34PM

16
17
18
19
20

5:07:07PM

21
22
23
24
25

5:07:30PM

Page 202

5:10:04PM

Page 203

5:11:52PM

Page 204

5:13:50PM

Page 205

Pages 202 to 205
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

5:18:54PM
16
17
18

MR. RUDOLPH: Let's take a break.
THE VIDEOGRAPHER: We're going off the
record at 5:19.
(Recess taken.)

19
20
21
22
23

THE VIDEOGRAPHER: We're now going back on
MR. RUDOLPH: I'd like to have the next
exhibit marked.

24

5:15:46PM

(Deposition Exhibit 4 marked for

25

identification.)

Page 206

5:17:40PM

5:19:32PM

the record. The time is 5:38.

5:38:57PM

Page 208
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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.

Page 207

Page 209

Pages 206 to 209
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1
BY MR. RUDOLPH:
7:00:02PM
2
Q What else? Let me withdraw that.
3
Did you write any of the content that is
4
contained in this response to Interrogatory No. 2?
MR. JESSEN: Object to the form.
7:00:34PM 5
6
THE WITNESS: I contributed content.
7
BY MR. RUDOLPH:
8
Q Interrogatory No. 2.
9
Any of the other interrogatory responses?
10
A Number 3.
7:01:26PM
11
Q Mr. Himel, I'm going to withdraw that
12
question.
13
If you look at page 47, do you see the
14
verification?
15
A Uh-huh.
7:02:55PM
16
Q Can you read into the record the sentence
17
starting with "I understand," starting at line 6,
18
please.
19
A (Reading):
"I understand that the facts
7:03:29PM
20
stated in Facebook's responses were
21
assembled by authorized employees,
22
agents and/or legal representatives
23
of Facebook and am informed and
24
believed that, subject to any
7:03:41PM
25

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,

2

the information contained in those

2

3

responses is true and correct based

3

4

on the records of Facebook and

5

information reasonably available to

6

its employees, agents and/or legal

6

7

representatives."

7

8
9

Q

4
5

8
9

subject to any inadvertent errors or omissions, the

10

information contained in these responses is true and

11

correct?

12

1

Did you do anything to verify that,

7:04:14PM 10
11

12

MR. JESSEN: And you should exclude from

13

13

your answer anything you did at the direction of

14

counsel or any conversations you had with counsel.

15

MR. RUDOLPH: I don't think that's a

14
7:04:30PM

15

16

proper instruction. I'm not asking for the

16

17

substance of communications. I'm just asking what

17

18

he did.

18

19

19

MR. JESSEN: If he did something to verify

20

at the direction of counsel, you're getting into

21

privileged communications.

22

7:04:36PM

20
21
22

THE WITNESS: I'm -- I'm not sure how to

23

23

answer the question because I don't understand if

24

there's overlap, substantial overlap, between the

25

content that's in here and the content that you find

24
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

Page 244

1

7:03:52PM

7:05:17PM

I do things to prepare, verify and respond.

Page 242
7:03:43PM

7:05:01PM

deposition, and so I -- I can't tell if you're

Q Is it your belief still today that these
7:06:43PM
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
7:07:11PM
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.

25

Page 243

Page 245

Pages 242 to 245
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2
3
4
5
6
7
8
9
10
11
12

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?

13

MR. JESSEN: Object to the form.

14

In October?
MR. RUDOLPH: Let me withdraw that.

15
16
17

7:09:17PM

BY MR. RUDOLPH:
Q

In the -- let's just say in 2012 in

18

general, how often did you speak with Mark

19

Zuckerberg?

20

MR. JESSEN: Object to the form.

21

THE WITNESS: In 2012 -- 2012, I lived in

22

New York, and so I didn't see or speak to Mark or

23

other people who were in California very frequently.

24

BY MR. RUDOLPH:

25

Q

7:09:26PM

But you can't remember whether or not you

7:12:49PM

7:09:57PM

Page 246
1

had a conversation with him related to this topic;

2

Page 248

is that correct?

3

A

7:09:59PM

That's -- that's not what I said. I do --

4

do not believe I had a conversation with Mark

5

relative -- relevant to this conversation -- to this

6

topic.

7

Q

7:10:11PM

Q Did anyone ever complain to Facebook about

6

Are you sure you did not have a

5

the incrementing of the Like counter based on URLs

7

sent in private messages that was made public in

8

conversation with him related to this topic?

8

October 2012?

9

MR. JESSEN: Object to the form.

9

7:13:26PM

10

THE WITNESS: It's -- it's impossible for

7:10:22PM

10

MR. JESSEN: Object to the form; lacks
foundation.

7:13:48PM

11

me to state if I talked to someone three and a half

11

12

years ago. I very strongly do not recall having a

12

in front of me, I believe there is a Wall Street

13

conversation with Mark about this topic in person.

13

Journal article that's referenced where there is a

14

BY MR. RUDOLPH:

14

vocal user complaining about incrementing the

15

counter next to social plug-ins from private

16

messages.

17

BY MR. RUDOLPH:

15

18
19
20

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

21
22

e-mail was not public to be contacted. I did not

23

work in a capacity of where I would handle incoming

24

bugs or, otherwise, see directly what users were

25

25

I was not a -- I did not work in -- I did not -- my

liking or not liking.

Page 247

7:14:49PM

Page 249

Pages 246 to 249
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2

Q Was there a team within Facebook that

7:14:53PM

1

A

We thought we were -- we thought we were

2

fielded those sorts of complaints?

7:18:17PM

building a feature that was good for users. We

3

thought we were building a feature that would give

4

if you go through the Help Center on Facebook.com

4

users a more comprehensive and accurate sense of how

5

and fill out -- fill out what's not working for you

5

much engagement there was for a particular URL.

6

or -- or what is -- what features are -- are

6

7

frustrating, it gets routed to our Internal

7

apparent that there was a very vocal set of users

8

Operations team who is able to respond to customers,

8

who really did not like the feature, and we reacted

9

is available to look at aggregate sentiment and

9

to that vocal sentiment of a set of users by

3

10

A There's a -- there's a -- if you -- well,

bubble-up issues.

7:15:09PM

10

7:15:38PM

7:18:30PM

However, in October of 2012, it became

changing the way the feature was implemented,

7:18:54PM

11

Q Is there a group within the Internal

11

specifically by no longer including the share_count

12

Operations team who's responsible to look at

12

as part of the count that was rendered next to a

13

aggregate sentiment?

13

social plug-in.

MR. JESSEN: Objection; calls for

14
15

speculation.

14

7:15:58PM

15

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.

16

THE WITNESS: I don't work on the

16

17

Operations team and -- and never have, but I think

17

18

that's a core part of what they do.

18

other declarations, the share_count allows us to do

19

BY MR. RUDOLPH:

19

a bunch of other features that provide benefit and

20

safety to the users of our site.

20
21

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?

21

MR. JESSEN: Object to the form; vague as

22

quick break. How much time is left?

23

THE REPORTER: 6:52.

22
23

7:16:15PM

THE WITNESS: As is stated in one of the

to time.

24

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

24

7:16:35PM

25

break, and if I have any more questions, I'll ask

Page 250
1

Journal article was published.

2

BY MR. RUDOLPH:

7:16:38PM

7:20:10PM

Page 252
1

them.

7:20:12PM
THE VIDEOGRAPHER: Off the record at 6:20

2

[sic].

3

Q

But after the article was published.

3

4

A

After the article was published, it was a

4

THE REPORTER: 7:20.

5

VIDEOGRAPHER: 7:20, sorry.

5

few days later that we removed the feature, and

6

so -- or we changed the way the feature works, and

6

7

so it would have been surprising to hear sentiment

7

8

after we changed the way the feature worked.

8
9

7:20:16PM

the record. The time is 7:25.
BY MR. RUDOLPH:

9
10

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

11
12

7:16:49PM

answered.
THE WITNESS: As we've gone over in detail

13
14

previously today, the change that was made in

15

October of 2012 was to no longer include the

16

share_count field as part of the counter next to the

17

social plug-in.

18

BY MR. RUDOLPH:

19

Q

7:17:23PM

So when I asked a little bit earlier, "Did

20

you ever hear of Facebook users contacting Facebook

21

to complain about this practice?" you said, "The

22

first time I personally heard about this was around

23

the time that this Wall Street Journal article was

24

published."

25

What -- what do you mean by "this"?

7:17:56PM

7:18:10PM

Page 251

7:26:58PM

Page 253

Pages 250 to 253
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

7:29:02PM

Page 254

7:30:33PM

Page 255

7:32:23PM

Page 256

7:33:48PM

Page 257

Pages 254 to 257
Veritext Legal Solutions
866 299-5127

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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

<%signature%>
KELLI COMBS
CSR No. 7705

Page 266

Page 266
Veritext Legal Solutions
866 299-5127