Campbell et al v. Facebook Inc.

Filing 33

RESPONSE (re 30 Request For Judicial Notice ) filed by Matthew Campbell, Michael Hurley, David Shadpour. (Sobol, Michael) (Filed on 7/30/2014) Modified on 7/31/2014 (vlkS, COURT STAFF).

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: 312.377.1184

Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: 212.661.8665

Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR, on
behalf of themselves and all others
similarly situated,

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Case No. 4:13-cv-05996
PLAINTIFFS’ OPPOSITION TO
DEFENDANT’S REQUEST FOR
JUDICIAL NOTICE

Plaintiffs,
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v.
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FACEBOOK, INC.,
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HEARING
Date:
September 17, 2014
Time:
9:00 a.m.
Place:
Courtroom 3, 3rd Floor
The Honorable Phyllis J. Hamilton

Defendant.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH

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I.

INTRODUCTION
Plaintiffs oppose Facebook’s Request for Judicial Notice filed together with its Motion to

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Dismiss Plaintiffs’ Consolidated Amended Complaint (“RJN”), on the grounds that all the

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documents they seek to have judicially noticed have been altered to reflect Facebook’s position,

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and some of the documents are not publicly accessible, and therefore all the documents lack the

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proper foundation to be judicially noticed.
All of the documents are not proper subjects for judicial notice because they are not “true

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and correct cop[ies]” of the documents they purport to be. Rather, Facebook has altered these

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documents by highlighting them to indicate the aspects of the documents that defense counsel

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asserts are relevant and important. Documents altered to convey the arguments of counsel are not

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properly judicially noticed. Plaintiffs, in a separately filed Request for Judicial Notice, are

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seeking to have three of these documents judicially noticed, but without alteration from counsel’s

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highlighting.
Further, Facebook improperly seeks to have three of its own internally generated

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documents, which are not even readily accessible to the public, judicially noticed. Because

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Facebook provides no link, either in its RJN or on its website, to any online versions of its

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archived disclosures (Facebook’s Exhibits B, C, E and F) they cannot be independently verified

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and lack the requisite foundation to be judicially noticed.
Therefore, Facebook’s Request for Judicial Notice should be denied.

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II.

ARGUMENT

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A.

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When ruling on a Rule 12(b)(6) motion to dismiss, courts must take all factual allegations

Legal Standard.

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in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v.

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Iqbal, 556 U.S. 662 (2009). “[F]actual challenges to a plaintiff’s complaint have no bearing on

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the legal sufficiency of the allegations under Rule 12(b)(6).” Scooter’s Pals Rescue v. Cnty. of

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Placer, No. 12-01736, 2012 U.S. Dist. LEXIS 151682, at *14 (E.D. Cal. Oct. 19, 2012) (quoting

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Lee v. City of Los Angeles, 250 F. 3d 668, 688 (9th Cir. 2001)). Thus, “[a]s a general rule, a
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH

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district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6)

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motion.” U.S. ex rel. Lee v. Corinthian Colls., 655 F.3d 984, 998 (9th Cir. 2011) (quoting Lee,

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250 F.3d at 688).

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There are two limited exceptions to this rule: (1) courts may consider documents attached

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to or incorporated by reference into the complaint if no party questions their authenticity, and

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(2) courts may consider adjudicative facts that are not subject to reasonable dispute. See Lee,

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250 F. 3d at 688-89. The key to both exceptions is that the documents or facts must be

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undisputed—if any party contests the authenticity or veracity of a fact or document, judicial

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notice cannot be taken of it.

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The Ninth Circuit cautions district courts to avoid taking judicial notice unless the “matter

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is beyond controversy.” Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005) (citing

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the advisory committee’s notes to Fed. R. Evid. 201(a) & (b), which explain “[a] high degree of

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indisputability is the essential prerequisite” to taking judicial notice). Put simply, a court may not

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“take judicial notice of facts favorable to Defendants that could reasonably be disputed.”

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Corinthian Colleges, 655 F.3d at 999 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).

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B.

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Facebook’s Request for Judicial Notice for documents altered by counsel should be

Facebook’s Request for Judicial Notice Should be Denied in its Entirety.

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denied. By presenting counsel’s version of the documents, Facebook essentially attempts to

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present the underlying facts in a light least favorable to the Plaintiffs, in contravention to the

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standard under Rule 12(b)(6).

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Facebook requests that the Court consider several documents, extrinsic to the pleadings, in
ruling on its Motion to Dismiss:
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current Statement of Rights and Responsibilities, dated November 15, 2013”;
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Exhibit A, which Facebook claims is a “true and correct copy of Facebook’s

Exhibit B, which Facebook claims is a “true and correct copy of Facebook’s
Statement of Rights and Responsibilities, dated April 26, 2011”;

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Exhibit C, which Facebook claims is a “true and correct copy of Facebook’s
Statement of Rights and Responsibilities, dated June 8, 2012”;
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH

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

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current Data Use Policy, dated November 15, 2013”;
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Exhibit E, which Facebook claims is a “true and correct copy of Facebook’s Data
Use Policy, dated September 7, 2011”;

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Exhibit D, which Facebook claims is a “true and correct copy of Facebook’s

Exhibit F, which Facebook claims is a “true and correct copy of Facebook’s Data
Use Policy, dated June 8, 2012”

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Exhibit 1, which Facebook claims is a “true and correct copy of Senate Report
No. 99-541, dated October 17, 1986.”

Def’s. RJN at 1.
Facebook’s Request for Judicial Notice should be rejected in its entirety. Facebook’s

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Exhibits A-F are improper subjects for judicial notice because they contain Defendant’s attorney

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work-product, in the form of highlighting sections of Facebook’s purported disclosures that

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Defendant viewed as helpful to its case. Likewise, Facebook’s presentation of ECPA’s legislative

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history (Exhibit 1) inaccurately emphasizes, by highlighting it, the one paragraph that Facebook

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has (mistakenly) identified as supporting its interpretation of ECPA. Even if the underlying text

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were a true and accurate representation of Facebook’s disclosures—a fact that Plaintiffs dispute

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with respect to Facebook’s Exhibits B, C, E, and F—Facebook’s insertion of misleading

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highlighting to portions of that text, is not. For this reason, none of Facebook’s Exhibits

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accurately depict the documents they purport to be—they are not true representations of the

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documents that Plaintiffs relied upon when using Facebook’s service or drafting the CAC. See

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Fed. R. Evid. 201. Thus, Facebook’s Request for Judicial Notice should be denied in its entirety.

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With respect to Exhibits 1, A, and D, Plaintiffs, in a separately filed Request for Judicial
Notice, seek to have them judicially noticed, but without alteration or highlighting.
With respect to Exhibits B, C, E, and F, Facebook’s Request for Judicial Notice should be

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denied for an additional reason. Those documents purport to be versions of Facebook’s

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Statement of Rights and Responsibilities and Data Use Policy in effect prior to November 15,

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2013. Facebook argues that the truth of these documents “can be accurately and readily

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determined from sources whose accuracy cannot reasonably be questioned.” RJN at 3 (citing
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH

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Fed. R. Evid. 201(b) & (b)(2)). But Facebook fails to identify any source from which to verify

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these documents. It provides no link to any website in its RJN, in the Jordan Declaration in

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support of Defendant’s Motion to Dismiss, or even on its website, to an original, accessible,

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source of these documents. Indeed, a reasonable search by Plaintiffs has turned up no such

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website. See Sobol Decl. ¶ 6. Thus, even putting aside Facebook’s self-interested modifications

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to its exhibits, Plaintiffs simply cannot concede the authenticity of Exhibits C-F. At this stage of

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the proceedings, it is not possible to verify that these documents are, in fact, what Facebook

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claims they are, or to assess the truth of the matters asserted in them.

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III.

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CONCLUSION
Plaintiffs respectfully request that the Court deny Facebook’s Request for Judicial Notice

of its self-serving, altered versions of the documents.

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Dated: July 30, 2014

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

/s/ Michael W. Sobol
Michael W. Sobol

Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505
Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: [phone]
Facsimile: 212.661.8665

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: [phone]
Facsimile: 312.377.1184

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Jon Tostrud (State Bar No. 199502)
[e-mail]
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2125
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310.278.2640

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Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE
CASE NO. C 13-05996-PJH