Campbell et al v. Facebook Inc.

Filing 84

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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1 2 3 4 5 6 7 8 9 10 11 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 16 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 17 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 12 13 14 15 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 21 22 23 MATTHEW CAMPBELL, MICHAEL HURLEY, and DAVID SHADPOUR, on behalf of themselves and all others similarly situated, 24 Case No. C 13-05996 PJH (MEJ) PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE Plaintiffs, 25 v. 26 FACEBOOK, INC., 27 Defendant. 28 PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE CASE NO. C 13-05996-PJH (MEJ) 1 Pursuant to Paragraph 3 of the Court’s Discovery Standing Order For Magistrate Judge 2 Maria-Elena James, Plaintiffs hereby request a telephonic conference for the purpose of enforcing 3 this Court’s discovery procedures, specifically, to require Facebook to timely provide Plaintiffs 4 with Facebook’s portion of a joint letter regarding a time-sensitive discovery dispute in 5 conformity with paragraph 2 of the Discovery Standing Order. 6 A dispute has arisen with respect to scheduling the deposition of Facebook employee Alex 7 Himel in a timely manner so as to avoid a continuance of the schedule set forth in Judge James’ 8 April 13, 2015 Discovery Order (Docket No 68), which would, in turn, impact the deadlines in 9 Judge Hamilton’s March 12, 2015 Scheduling Order (Docket No 62). On April 13, 2015 a 10 discovery conference was held to discuss Plaintiffs’ discovery requests related to Facebook’s 11 source code. Because the parties disagreed regarding the discoverability of source code in this 12 action, Judge James set the following discovery and briefing schedule: 13 • By June 1, 2015, Facebook will produce technical and other relevant 14 documents in response to Plaintiffs’ source code discovery requests, which 15 will include a declaration explaining why the produced documents respond 16 to Plaintiffs’ requests without producing the source code itself. 17 • The parties will meet and confer following the production, and if Plaintiffs 18 continue to believe that the actual source code should be produced, 19 Plaintiffs may file a motion to compel by July 2, 2015. Facebook will file 20 its opposition by July 20, 2015, and Plaintiffs will file their reply by July 21 27, 2015. The Court will hold a hearing on the matter on August 13, 2015 22 at 10:00 am. 23 24 25 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 26 deposition dates in mid-June for Facebook’s declarant in support of Plaintiffs’ motion to compel 27 source code. Facebook was non-committal but did not notify Plaintiffs of any concerns related to 28 the declarant’s availability. On June 1, 2015, counsel for the parties met and conferred in person -1- PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE CASE NO. C 13-05996-PJH (MEJ) 1 regarding the date for the declarant’s deposition, during which Plaintiffs’ counsel sought to 2 schedule the deposition during the week of June 15, 2015, in light of the July 2, 2015 due date for 3 Plaintiff’s motion to compel. On June 2, 2015 Plaintiffs’ counsel sought confirmation that 4 Facebook would agree to make Facebook’s declarant, Alex Himel, available during the week of 5 June 15, 2015 as discussed during the in-person meet and confer. On June 3, 2015 Facebook’s 6 counsel informed Plaintiffs’ counsel that Mr. Himel would not be available for deposition until 7 July 8, 2015 and proposed a continuance or modification of the briefing schedule on the Motion 8 to Compel. The parties have accordingly reached an impasse with respect to the issue of the 9 timing of Mr. Himel’s deposition, and Plaintiffs intend to seek an order compelling Facebook to 10 produce Mr. Himel for deposition during the week of June 15, 2015, or alternatively continuing 11 the August 13, 2015 hearing, and related briefing deadlines, by three weeks. 12 Consistent with this Court’s Discovery Standing Order, and as described in the 13 Declaration of David Rudolph, filed herewith (“Rudolph Decl.”), on June 3, 2015, Plaintiffs’ 14 counsel informed Facebook’s counsel that Plaintiffs intended to submit a letter brief seeking to 15 compel the deposition of Mr. Himel the week of June 15, and, given the time-sensitive nature of 16 this dispute, Plaintiffs would seek expedited resolution of this issue. Rudolph Decl., Ex. A at 4. 17 Plaintiffs accordingly proposed that the parties exchange their respective positions on June 4, 18 2015, and that the joint letter brief be filed on June 5, 2015. Id. 19 Facebook rejected this schedule, and instead suggested that the parties “discuss a bilateral 20 briefing schedule for both our letter brief regarding Mr. Shadpour and your letter brief regarding 21 Mr. Himel.” Id. Facebook has indicated that it intends to move to compel discovery from named 22 plaintiff David Shadpour, and the parties have agreed to a briefing schedule for that issue under 23 which the parties exchange initial positions on June 9, 2015, revisions on June 16, 2015 and file 24 the letter brief June 17, 2015. Rudolph Decl., ¶ 4. Because Plaintiffs seek to compel Mr. 25 Himel’s deposition to take place the week of June 15, 2015 a “reciprocal” briefing schedule by 26 which the briefs would be filed on June 17, 2015 is not feasible, and Plaintiffs instead proposed 27 the following compromise schedule: the parties will exchange positions June 5, 2015, any 28 revisions on June 8, 2015, and the letter brief will be filed on June 9, 2015. Ex. A at 2. -2- PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE CASE NO. C 13-05996-PJH (MEJ) 1 Facebook’s counsel did not agree to this schedule, instead suggesting that any briefing be 2 delayed by further meeting-and-conferring on this issue, despite the fact that the parties had 3 already met and conferred in person and reached an impasse. Id., Ex. A at 1. 4 As such, Facebook has not agreed to provide its portion of the joint letter pursuant to a 5 briefing schedule that will allow Plaintiffs to request the relief they seek in time for the Court to 6 rule on it, necessitating the instant request for a telephonic conference. Plaintiffs seek a 7 telephonic conference with Magistrate Judge James to either 1) enforce this Court’s discovery 8 procedures by requiring Facebook to participate in a briefing schedule that will allow Plaintiffs to 9 timely pursue the relief they seek, or 2) preferably, rule on Plaintiffs’ request seeking the 10 deposition of Alex Himel the week of June 15, 2015 during the telephonic conference. In order to 11 maintain the deadlines in Judge Hamilton’s March 12, 2015 Scheduling Order (Docket No 62), 12 Plaintiffs’ strong preference is a timely deposition of Mr. Himel and maintenance of the current 13 schedule. 14 15 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. 16 Respectfully submitted, 17 18 19 20 21 22 23 24 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 25 26 27 28 -3- PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE CASE NO. C 13-05996-PJH (MEJ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 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 16 17 18 19 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 20 21 22 23 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 24 25 Attorneys for Plaintiffs and the Proposed Class 26 27 28 -4- PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE CASE NO. C 13-05996-PJH (MEJ)

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