Campbell et al v. Facebook Inc.

Filing 85

RESPONSE (re 84 MOTION to Appear by Telephone Plaintiffs' Request for Telephonic Discovery Conference ) filed byFacebook Inc.. (Attachments: # 1 Declaration of Joshua Jessen In Support of Response to Plaintiffs' Request for Telephonic Conference, # 2 Declaration of Christopher Chorba In Support of Response to Plaintiffs' Request for Telephonic Conference)(Jessen, Joshua) (Filed on 6/5/2015)

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[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.,

Case No. C 13-05996 PJH (MEJ)
PUTATIVE CLASS ACTION
DEFENDANT FACEBOOK, INC.’S
RESPONSE TO PLAINTIFFS’ REQUEST
FOR TELEPHONIC DISCOVERY
CONFERENCE

Defendant.

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

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Facebook files this brief response to Plaintiffs’ Request for Telephonic Discovery Conference
(Dkt. 84) to correct several misleading statements made in Plaintiffs’ filing.
First, as the email traffic appended to Plaintiffs’ counsel’s declaration (Dkt. 84-2) establishes,

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Facebook worked very hard to resolve this simple scheduling dispute without the involvement of the

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Court. For example, Facebook noted that Plaintiffs could supplement any motion to compel with

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deposition testimony secured after July 2, or address it in their reply brief (which is not due until July

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27). Facebook also offered a brief continuance to the existing motion-to-compel schedule, so that

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Plaintiffs could depose Mr. Himel before filing their motion to compel. Plaintiffs’ motion to compel

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is currently due on July 2, and the Court’s April 13 Order requires the parties to meet and confer

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before the filing of any motion. (Dkt. 68.) To date, Plaintiffs’ counsel has not conducted that meet

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and confer, or explained why such a motion is necessary in light of the materials that Facebook

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provided on June 1. In any event, even if Plaintiffs proceed with their motion to compel on July 2,

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Mr. Himel is first available for deposition on July 8. So a short continuance of the briefing schedule

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would have resolved this simple issue and obviated the need for Court involvement. Plaintiffs were

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recalcitrant, however, and have steadfastly refused a brief continuance, even though they now

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propose a continuance in the alternative. (Dkt. 84 at 2.)

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Second, while Facebook did endeavor to resolve this issue without involving the Court, it is

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not correct that Facebook refused to engage Plaintiffs on a reasonable schedule for preparing a letter

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brief. Rather, Facebook—which earlier this week sent Plaintiffs the background section for a letter

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brief seeking to compel a deposition and discovery responses from one of the three named Plaintiffs

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(David Shadpour, who has not produced a single document in this case and whose deposition

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Facebook first requested seven weeks ago)—noted that the briefing schedules for the two letter briefs

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should be the same. (See Declaration of Joshua A. Jessen (“Jessen Decl.”) ¶ 2, Ex. A, & ¶ 4, Ex. D.)

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Plaintiffs, however, apparently believe their discovery issues should receive priority over Facebook’s

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(much earlier) discovery issues. They therefore demanded that Facebook provide its portion of a

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letter brief within 24 hours (later extended to 48 hours) after informing Facebook they would be

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filing a letter brief on this issue, while previously requesting an exchange of positions over two

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weeks. (Id. ¶ 2, Ex. A & ¶ 2, Ex. C.) Plaintiffs reject any talk of “reciprocity,” but Facebook
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

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respectfully submits that the same standards and timing should apply to all parties’ submissions to

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this Court.

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Further, Facebook did not categorically reject any expedited briefing of these issues. In fact,

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Plaintiffs’ rush to file their Request eliminated any further discussion of this issue. As the email

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exchanges (Dkt. 84-2) demonstrate, as late as yesterday evening, Facebook urged Plaintiffs’ counsel

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to discuss these issues in real time to resolve this dispute. Plaintiffs’ counsel responded to

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Facebook’s offer at approximately 10:57 a.m. on Friday, June 5, thanking Facebook’s counsel for

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providing times for a telephonic conference with the Court, and stating that “we will be filing a

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written request seeking the conference.” (Jessen Decl. Ex. A.) Then, only one minute later,

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Plaintiffs filed their five-page Request for Telephonic Discovery Conference and supporting

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declaration. (Id., ¶ 2 & Ex. B.) Incredibly, rather than engaging in a simple telephone call, Plaintiffs’

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counsel focused their energies on preparing their brief and attempting to deprive Facebook of any

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opportunity to present its position to this Court.

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Third, Plaintiffs’ statement that Facebook “did not notify Plaintiffs of any concerns related to

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the declarant’s availability” (Dkt. 84 at 1) in mid-May is false. In fact, as the accompanying

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Declaration of Facebook’s counsel confirms, Facebook specifically noted during these discussions

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that it had not yet identified the declarant, and it could not commit to a date certain for that

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declarant’s deposition before July 2. (Declaration of Christopher Chorba ¶¶ 2-3.) Plaintiffs also state

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that during a June 1 meet-and-confer conference, they requested that Mr. Himel be made available for

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a deposition in mid-June and then “sought confirmation” the following day that Mr. Himel would be

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available then. (Dkt. 84 at 2.) This is a mischaracterization, which perhaps explains why Plaintiffs

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chose not to attach the entire e-mail chain between Plaintiffs’ counsel and Facebook’s counsel. As

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the full e-mail chain makes clear (Jessen Decl. Ex. A), during the June 1 conference, Facebook’s

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counsel stated that Facebook was checking into Mr. Himel’s availability for a deposition the week of

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June 15. (Id.) As it turned out, Mr. Himel was not available for a deposition that week (or until July

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8); but there was no agreement on June 1 of a mid-June Himel deposition (or any suggestion that the

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week of June 15 likely would work) that was subject to “confirmation.” (See Jessen Decl. Ex. A (“I

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did inform you during our meet and confer that we were checking into Mr. Himel’s availability for

Gibson, Dunn &
Crutcher LLP

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DEFENDANT FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)

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the week of June 15. Unfortunately, he is not available for deposition that week. He is, however,

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available on July 8. Let me know if that works.”).) 1
Finally, in an effort to efficiently resolve this simple issue, Facebook is not opposed to a

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telephonic conference with the Court during the times proposed in Plaintiffs’ Request. But nor is

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Facebook opposed to exchanging positions with Plaintiffs next Tuesday (June 9) for a letter brief on

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this issue to be filed on Wednesday (June 10), although Facebook respectfully submits the same

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schedule also should apply to Facebook’s letter brief regarding Mr. Shadpour’s refusal to produce

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documents or sit for a deposition. This issue can and should have been resolved without burdening

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the Court by agreement on a brief continuance of the motion-to-compel schedule, but if the Court

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wishes to receive full briefing regarding the fact that Mr. Himel is not available for a deposition until

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July 8, Facebook is happy to provide it.

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Dated: June 5, 2015

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Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP

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/s/
Joshua A. Jessen

By:

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Attorneys for Defendant FACEBOOK, INC.

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Gibson, Dunn &
Crutcher LLP

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By way of comparison, on April 16, Facebook requested the deposition of named Plaintiff
Michael Hurley in mid-May. (Jessen Decl. ¶ 6, Ex. E.) Plaintiffs informed Facebook that Mr.
Hurley would not be available for deposition until July 9—84 days after Facebook made its
request. (Id. ¶ 6.) But Plaintiffs now demand that Facebook make Mr. Himel available for a
deposition within 21 days of their request (even though he is not available then) and flatly reject a
July 8 deposition date (which would be slightly more than one month after their June 1 request
and is the day before the Hurley deposition, which Facebook first requested in mid-April).
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DEFENDANT FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’ REQUEST FOR TELEPHONIC DISCOVERY CONFERENCE
Case No. C 13-05996 PJH (MEJ)