Campbell et al v. Facebook Inc.

Filing 36

Reply in Support of re 33 Request For Judicial Notice In Support Of Its Motion to Dismiss Plaintiffs' Consolidated Amended Complaint by Facebook Inc.. (Jessen, Joshua) (Filed on 8/28/2014) Modified on 8/29/2014 (vlkS, COURT STAFF).

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
JESSICA S. OU, SBN 280534
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
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 DIVISON

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH
CONSOLIDATED CLASS ACTION
DEFENDANT FACEBOOK, INC.’S
REPLY IN SUPPORT OF ITS REQUEST
FOR JUDICIAL NOTICE IN SUPPORT
OF ITS MOTION TO DISMISS
PLAINTIFFS’ CONSOLIDATED
AMENDED COMPLAINT
HEARING:
Date: September 17, 2014
Time: 9:00 a.m.
Place: Courtroom 3, 3rd Floor
The Honorable Phyllis J. Hamilton

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH

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Plaintiffs oppose Facebook’s Request for Judicial Notice (“RJN,” Dkt. No. 30) with an absurd

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accusation that some of the documents have been “altered to reflect Facebook’s position” or that

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some of the documents cannot be “verifi[ed].” (Pls.’ Opp. to Facebook’s Req. for Judicial Notice

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(“RJN Opp.”), Dkt. No. 33, at 1, 4.) Plaintiffs’ arguments lack any merit and are a waste of this

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Court’s time:

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First, Facebook has not “altered” the documents. Rather, Facebook has included the original,

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full-text documents and simply highlighted relevant provisions to aid this Court’s review. Facebook

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never represented that any highlighting appeared in the underlying documents, and it is silly for

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Plaintiffs to oppose the RJN on this basis.

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Second, Plaintiffs do not have any substantive basis for opposing judicial notice of Exhibits A

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and D to the Jordan Declaration (the current versions of Facebook’s Statement of Rights and

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Responsibilities (“SRR”) and Data Use Policy (“DUP”)) and Exhibit 1 of Facebook’s Request for

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Judicial Notice (Senate Report No. 99-541), because Plaintiffs request judicial notice for the same

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documents. (Pls.’ Req. for Judicial Notice, Dkt. No. 32; RJN Opp. at 3.)

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Third, Plaintiffs further object to Exhibits B, C, E, and F to the Jordan Declaration (versions

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of Facebook’s SRR and DUP in effect during the alleged class period), and assert that these

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documents “purport to be versions of [the relevant user agreements]” and that Facebook does not

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“identify any source from which to verify these documents.” (RJN Opp. at 3-4.) Plaintiffs fail to

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note that the authenticity of these documents has indeed been verified with a signed affidavit from a

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Facebook employee with knowledge who certified each document to be a “true and correct” copy.

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(See Jordan Declaration, Dkt. No. 29-1 at 1-2 (attaching Exhibits B, C, E, and F).) As Facebook has

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attested to the authenticity of these documents, their veracity “is not subject to reasonable dispute.”

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Fed. R. Evid. 201(b); RJN at 3; see also In re Copper Mountain Sec. Litig., 311 F. Supp. 2d 857, 864

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(N.D. Cal. 2004) (plaintiff disputed accuracy of document for which defendant sought judicial notice;

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after defendant “attest[ed]” to measures taken to verify the document’s accuracy, the court took

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judicial notice). Accordingly, this court may properly take judicial notice of Exhibits B, C, E, and F.

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Crutcher LLP

Further, “[e]ven if the Court [could not] properly take judicial notice of [the documents],
given [P]laintiffs’ reliance on the documents, the Court may consider them under the incorporation
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DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH

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by reference doctrine.” In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp. 746, 758 (N.D. Cal.

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1997). As explained in the RJN, Plaintiffs’ Complaint repeatedly insists that “Facebook [did] not

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disclose anywhere in its Privacy Policy its practice [during the class period,] . . . nor has such a

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practice ever been announced in any of Facebook’s disclosures to its users.” (RJN at 2-3.) As these

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claims “necessarily rel[y]” on the prior versions of the SRR and DUP, Facebook submits the prior

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versions to show that the relevant disclosures were indeed present during the proposed class period

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(and Plaintiffs do not dispute this). (Id.) Plaintiffs cannot use these documents as both a sword and a

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shield, using the unsubstantiated contention that they have not been sufficiently “verified” to

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Plaintiffs’ liking. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (plaintiffs not

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permitted to “surviv[e] a Rule 12(b)(6) motion by deliberately omitting . . . documents upon which

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their claims are based”) (citation and internal quotation marks omitted); see also In re Silicon

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Graphics, 970 F. Supp. at 759 (“Having raised questions about defendants’ [practices] . . . plaintiffs

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can hardly complain when defendants refer to the same information in their defense.”).

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Facebook respectfully requests that the Court take judicial notice of Exhibits A, B, C, D, E,

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and F attached to the Jordan Declaration and Exhibit 1 attached to Facebook’s Request for Judicial

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Notice.

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Dated: August 28, 2014

Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:

/s/
Joshua A. Jessen

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Attorneys for Defendant FACEBOOK, INC.

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Gibson, Dunn &
Crutcher LLP

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DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH