Campbell et al v. Facebook Inc.
Filing
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MOTION to Appear by Telephone Plaintiffs' Request for Telephonic Discovery Conference filed by Matthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Declaration of David T. Rudolph in Support of Plaintiffs' Request for Telephonic Conference, # 2 Exhibit A)(Rudolph, David) (Filed on 6/5/2015)
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Michael W. Sobol (State Bar No. 194857)
msobol@lchb.com
Melissa Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Rachel Geman
rgeman@lchb.com
Nicholas Diamand
ndiamand@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: 212.355.9500
Facsimile: 212.355.9592
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Patrick V. Dahlstrom
pdahlstrom@pomlaw.com
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, Illinois 60603
Telephone: 312.377.1181
Facsimile: 312.377.1184
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
2800 Cantrell Road, Suite 510
Little Rock, AR 72202
Telephone: 501.312.8500
Facsimile: 501.312.8505
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Jeremy A. Lieberman
Lesley F. Portnoy
info@pomlaw.com
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: 212.661.1100
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. C 13-05996 PJH (MEJ)
PLAINTIFFS’ REQUEST FOR
TELEPHONIC DISCOVERY
CONFERENCE
Plaintiffs,
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v.
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FACEBOOK, INC.,
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Defendant.
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PLAINTIFFS’ REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
CASE NO. C 13-05996-PJH (MEJ)
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Pursuant to Paragraph 3 of the Court’s Discovery Standing Order For Magistrate Judge
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Maria-Elena James, Plaintiffs hereby request a telephonic conference for the purpose of enforcing
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this Court’s discovery procedures, specifically, to require Facebook to timely provide Plaintiffs
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with Facebook’s portion of a joint letter regarding a time-sensitive discovery dispute in
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conformity with paragraph 2 of the Discovery Standing Order.
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A dispute has arisen with respect to scheduling the deposition of Facebook employee Alex
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Himel in a timely manner so as to avoid a continuance of the schedule set forth in Judge James’
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April 13, 2015 Discovery Order (Docket No 68), which would, in turn, impact the deadlines in
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Judge Hamilton’s March 12, 2015 Scheduling Order (Docket No 62). On April 13, 2015 a
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discovery conference was held to discuss Plaintiffs’ discovery requests related to Facebook’s
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source code. Because the parties disagreed regarding the discoverability of source code in this
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action, Judge James set the following discovery and briefing schedule:
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•
By June 1, 2015, Facebook will produce technical and other relevant
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documents in response to Plaintiffs’ source code discovery requests, which
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will include a declaration explaining why the produced documents respond
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to Plaintiffs’ requests without producing the source code itself.
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•
The parties will meet and confer following the production, and if Plaintiffs
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continue to believe that the actual source code should be produced,
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Plaintiffs may file a motion to compel by July 2, 2015. Facebook will file
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its opposition by July 20, 2015, and Plaintiffs will file their reply by July
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27, 2015. The Court will hold a hearing on the matter on August 13, 2015
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at 10:00 am.
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See Discovery Order Re: Source Code Briefing Schedule (Docket No 68).
During a telephonic meet and confer in mid-May 2015, counsel for Plaintiffs requested
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deposition dates in mid-June for Facebook’s declarant in support of Plaintiffs’ motion to compel
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source code. Facebook was non-committal but did not notify Plaintiffs of any concerns related to
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the declarant’s availability. On June 1, 2015, counsel for the parties met and conferred in person
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PLAINTIFFS’ REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
CASE NO. C 13-05996-PJH (MEJ)
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regarding the date for the declarant’s deposition, during which Plaintiffs’ counsel sought to
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schedule the deposition during the week of June 15, 2015, in light of the July 2, 2015 due date for
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Plaintiff’s motion to compel. On June 2, 2015 Plaintiffs’ counsel sought confirmation that
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Facebook would agree to make Facebook’s declarant, Alex Himel, available during the week of
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June 15, 2015 as discussed during the in-person meet and confer. On June 3, 2015 Facebook’s
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counsel informed Plaintiffs’ counsel that Mr. Himel would not be available for deposition until
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July 8, 2015 and proposed a continuance or modification of the briefing schedule on the Motion
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to Compel. The parties have accordingly reached an impasse with respect to the issue of the
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timing of Mr. Himel’s deposition, and Plaintiffs intend to seek an order compelling Facebook to
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produce Mr. Himel for deposition during the week of June 15, 2015, or alternatively continuing
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the August 13, 2015 hearing, and related briefing deadlines, by three weeks.
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Consistent with this Court’s Discovery Standing Order, and as described in the
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Declaration of David Rudolph, filed herewith (“Rudolph Decl.”), on June 3, 2015, Plaintiffs’
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counsel informed Facebook’s counsel that Plaintiffs intended to submit a letter brief seeking to
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compel the deposition of Mr. Himel the week of June 15, and, given the time-sensitive nature of
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this dispute, Plaintiffs would seek expedited resolution of this issue. Rudolph Decl., Ex. A at 4.
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Plaintiffs accordingly proposed that the parties exchange their respective positions on June 4,
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2015, and that the joint letter brief be filed on June 5, 2015. Id.
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Facebook rejected this schedule, and instead suggested that the parties “discuss a bilateral
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briefing schedule for both our letter brief regarding Mr. Shadpour and your letter brief regarding
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Mr. Himel.” Id. Facebook has indicated that it intends to move to compel discovery from named
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plaintiff David Shadpour, and the parties have agreed to a briefing schedule for that issue under
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which the parties exchange initial positions on June 9, 2015, revisions on June 16, 2015 and file
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the letter brief June 17, 2015. Rudolph Decl., ¶ 4. Because Plaintiffs seek to compel Mr.
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Himel’s deposition to take place the week of June 15, 2015 a “reciprocal” briefing schedule by
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which the briefs would be filed on June 17, 2015 is not feasible, and Plaintiffs instead proposed
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the following compromise schedule: the parties will exchange positions June 5, 2015, any
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revisions on June 8, 2015, and the letter brief will be filed on June 9, 2015. Ex. A at 2.
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PLAINTIFFS’ REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
CASE NO. C 13-05996-PJH (MEJ)
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Facebook’s counsel did not agree to this schedule, instead suggesting that any briefing be
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delayed by further meeting-and-conferring on this issue, despite the fact that the parties had
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already met and conferred in person and reached an impasse. Id., Ex. A at 1.
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As such, Facebook has not agreed to provide its portion of the joint letter pursuant to a
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briefing schedule that will allow Plaintiffs to request the relief they seek in time for the Court to
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rule on it, necessitating the instant request for a telephonic conference. Plaintiffs seek a
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telephonic conference with Magistrate Judge James to either 1) enforce this Court’s discovery
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procedures by requiring Facebook to participate in a briefing schedule that will allow Plaintiffs to
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timely pursue the relief they seek, or 2) preferably, rule on Plaintiffs’ request seeking the
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deposition of Alex Himel the week of June 15, 2015 during the telephonic conference. In order to
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maintain the deadlines in Judge Hamilton’s March 12, 2015 Scheduling Order (Docket No 62),
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Plaintiffs’ strong preference is a timely deposition of Mr. Himel and maintenance of the current
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schedule.
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Counsel for the parties have conferred and are generally available for a telephonic
conference on June 5, on June 8 after 2 p.m., or June 9 prior to 12 p.m.
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Respectfully submitted,
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Dated: June 5, 2015
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:
/s/ David T. Rudolph
David T. Rudolph
Michael W. Sobol (State Bar No. 194857)
msobol@lchb.com
Melissa Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
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PLAINTIFFS’ REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
CASE NO. C 13-05996-PJH (MEJ)
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Rachel Geman
rgeman@lchb.com
Nicholas Diamand
ndiamand@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: 212.355.9500
Facsimile: 212.355.9592
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
2800 Cantrell Road, Suite 510
Little Rock, AR 72202
Telephone: 501.312.8500
Facsimile: 501.312.8505
Jeremy A. Lieberman
Lesley F. Portnoy
info@pomlaw.com
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: 212.661.1100
Facsimile: 212.661.8665
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Patrick V. Dahlstrom
pdahlstrom@pomlaw.com
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: 312.377.1181
Facsimile: 312.377.1184
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Jon Tostrud (State Bar No. 199502)
jtostrud@tostrudlaw.com
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2125
Los Angeles, CA 90067
Telephone: 310.278.2600
Facsimile: 310.278.2640
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Attorneys for Plaintiffs and the Proposed Class
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PLAINTIFFS’ REQUEST FOR TELEPHONIC
DISCOVERY CONFERENCE
CASE NO. C 13-05996-PJH (MEJ)
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