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)

EXHIBIT A
From:
To:
Cc:
Subject:
Date:

Jessen, Joshua A.
Rudolph, David T.; Chorba, Christopher
Sobol, Michael W.; Hank Bates ([e-mail])
RE: Deposition date for Alex Himel
Thursday, June 04, 2015 6:02:06 PM

David –

Facebook is not “refusing” to make Mr. Himel available for deposition before July 2.  Mr. Himel is not
in fact available for a deposition before July 8.  If he were, we would have offered that date.  Mr.
Himel is a senior Facebook employee who manages a team of dozens of people and does not have
requisite availability for a deposition before then. 

We have repeatedly pointed out that, even under the existing schedule, Plaintiffs will have ample
time to address anything Mr. Himel says in a July 8 deposition in a supplement to their motion or in
their reply brief (due July 27).  We also have offered to extend the briefing schedule.  The schedule
you propose below is generally fine, though may need to be tweaked slightly in light of vacation
schedules.

We’re happy to chat with you, Michael, Hank, or whomever tomorrow to resolve this issue.  There is
a reasonable solution here (we have offered several), and I believe Magistrate Judge James would
expect the parties to resolve this simple issue without court intervention.  Alternatively, if you insist
on involving the court now, you have our consent to e-mail Magistrate Judge James’ clerk (copying
us) to request a brief telephonic conference on this issue anytime tomorrow afternoon, Monday
after 2 p.m., or Tuesday before Noon.

Thanks,

Josh
Joshua A. Jessen

GIBSON DUNN
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412          1881 Page Mill Road, Palo Alto, CA 94304-1211
Tel [phone] • Fax [phone]              Tel + 650.849.5375
[e-mail] • www.gibsondunn.com

From: Rudolph, David T. [mailto:[e-mail]]
Sent: Thursday, June 04, 2015 4:23 PM
To: Jessen, Joshua A.; Chorba, Christopher
Cc: Sobol, Michael W.; Hank Bates ([e-mail])
Subject: RE: Deposition date for Alex Himel

Josh,

The parties and the Court already conferred and determined what the briefing schedule for
Plaintiffs’ motion will be.  As you are aware, the parties’ respective motions are due October 14, and

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EXHIBIT A
pushing back resolution of the source code issue a number of weeks could potentially impact the
entire case schedule.  Facebook’s refusal to produce Mr. Himel for deposition prior to the due date
for Plaintiffs’ motion to compel is unacceptable and Plaintiffs will be seeking to compel his
deposition. 

Facebook already proposed, and Plaintiffs accepted, a schedule for the briefing related to Mr.
Shadpour.  That issue is totally unrelated to the deposition date for Mr. Himel, and there is no
reason for the parties to arrange “reciprocal” briefing on these issues, and  your suggestion is a clear
attempt to delay resolution of this issue by the Court.  Because Plaintiffs are seeking the deposition
of Mr. Himel the week of June 15, the letter brief must be filed no later than early next week in
order to allow the Court sufficient time to rule.  If, as your email suggests, Facebook is unwilling to
agree to a schedule that allows for that, pursuant paragraph 3 of Judge James’ Discovery Standing
Order, Plaintiffs will seek a telephonic conference with Judge James to resolve this issue.

As a compromise to the briefing schedule I proposed yesterday, which contemplated the parties
exchanging positions today and filing the letter brief tomorrow (which Facebook rejected), we
propose the following schedule:  the parties will exchange positions tomorrow at 5pm, the parties
will exchange any revisions to their positions on Monday at 5pm, and the letter brief will be filed on
Tuesday.  If Facebook will not agree to this schedule, pursuant to Judge James’ standing order,
please provide us three times tomorrow, Monday, and Tuesday you are available for a telephonic
conference with Judge James. 

Finally, Plaintiffs intend to propose, in the event the Court declines to grant Plaintiffs’ motion to
compel, an alternative briefing schedule pushing all dates associated with the motion back three
weeks (i.e. motion to compel due 7/23, opposition due 8/10, reply due 8/17, hearing 9/3).  Please
confirm Facebook stipulates to this alternative schedule in the event the Court declines to grant
Plaintiffs’ motion.

Please let us know this afternoon.

Thank you.

David T. Rudolph
Of Counsel
[e-mail]
t 415.956.1000
f 415.956.1008
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
www.lieffcabraser.com

From: Jessen, Joshua A. [mailto:[e-mail]]
Sent: Thursday, June 04, 2015 2:09 PM
To: Rudolph, David T.; Chorba, Christopher
Cc: Sobol, Michael W.; Hank Bates ([e-mail])
Subject: RE: Deposition date for Alex Himel

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EXHIBIT A
David –

We gave you his first date of availability for a deposition, which is July 8.    As I mentioned, we are
willing to modify the briefing schedule such that Plaintiffs’ motion would not be due until after Mr.
Himel’s deposition.  Let me know.

Thanks,

Joshua A. Jessen

GIBSON DUNN
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412          1881 Page Mill Road, Palo Alto, CA 94304-1211
Tel [phone] • Fax [phone]              Tel + 650.849.5375
[e-mail] • www.gibsondunn.com

From: Rudolph, David T. [mailto:[e-mail]]
Sent: Thursday, June 04, 2015 11:44 AM
To: Jessen, Joshua A.; Chorba, Christopher
Cc: Sobol, Michael W.; Hank Bates ([e-mail])
Subject: RE: Deposition date for Alex Himel

Josh, you’ve stated  twice Mr. Himel is not available for deposition during “the week of June 15.” Is
Mr. Himel available the following week, on June 22 or 23? Please let us know this afternoon.

David T. Rudolph
Of Counsel
[e-mail]
t 415.956.1000
f 415.956.1008
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
www.lieffcabraser.com

From: Jessen, Joshua A. [mailto:[e-mail]]
Sent: Thursday, June 04, 2015 10:59 AM
To: Rudolph, David T.; Chorba, Christopher
Cc: Sobol, Michael W.; Hank Bates ([e-mail])
Subject: RE: Deposition date for Alex Himel

David –

Thank you for your e-mail.

As I indicated during our meet-and-confer, to the extent Plaintiffs decide to move to compel after
reviewing the information we provided this week, we are willing to allow Plaintiffs to file a
supplement to their motion to compel after they depose Mr. Himel, and of course Plaintiffs’ reply
brief is not due until July 27, which provides ample time to present information learned in a July 8
deposition to the Court.  We also are amenable to a continuance of the briefing schedule, so that

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EXHIBIT A
Plaintiffs’ motion would not due until sometime after Mr. Himel’s deposition.  Let me know if either
of these works.

Unfortunately, Mr. Himel is not available for deposition during the week of June 15.  Bothering the
Court with this issue under these circumstances, especially when your concern can be addressed by
a continuance of the briefing schedule (or simply by raising any information from Mr. Himel’s
deposition in a supplement or in Plaintiffs’ reply), would be a tremendous waste.

If Plaintiffs nonetheless proceed down that path,  we can discuss a bilateral briefing schedule for
both our letter brief regarding Mr. Shadpour and your letter brief regarding Mr. Himel.  Obviously
we’re not going to have disparate timing standards apply to those two briefs.

Thanks,

Joshua A. Jessen

GIBSON DUNN
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive, Irvine, CA 92612-4412          1881 Page Mill Road, Palo Alto, CA 94304-1211
Tel [phone] • Fax [phone]              Tel + 650.849.5375
[e-mail] • www.gibsondunn.com

From: Rudolph, David T. [mailto:[e-mail]]
Sent: Wednesday, June 03, 2015 4:45 PM
To: Jessen, Joshua A.; Chorba, Christopher
Cc: Sobol, Michael W.; Hank Bates ([e-mail])
Subject: RE: Deposition date for Alex Himel

Josh,

As we discussed during the in-person meet and confer, Plaintiffs require the deposition of Mr. Himel
prior to the July 2 due date for their motion to compel, and July 8 is obviously unacceptable.  We
intend to seek an order from the Court compelling Mr. Himel’s deposition the week of June 15, and
attach a Background section of the joint letter brief.  Given the nature of this request we will seek
expedited resolution of this issue by the Court.  Accordingly, we propose the parties exchange
positions at 5pm tomorrow, with the motion to be filed on Friday—given the nature of the relief
Plaintiffs are seeking we cannot wait 7 days to exchange positions as was the case with the prior
letter brief.  Please confirm Facebooks agrees to this schedule.

Plaintiffs will take Mr. Liu’s deposition on June 30.

Thank you.

David T. Rudolph
Of Counsel
[e-mail]
t 415.956.1000

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