Campbell et al v. Facebook Inc.

Filing 89

Joint Discovery Letter Brief Regarding Plaintiff David Shadpour filed by Facebook Inc.. (Attachments: # 1 Exhibits A-B)(Jessen, Joshua) (Filed on 6/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,

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ATTESTATION IN SUPPORT OF JOINT
LETTER REGARDING PLAINTIFF
DAVID SHADPOUR

Defendant.

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Case No. C 13-05996 PJH (MEJ)

Date:
TBD
Time:
TBD
Location: San Francisco Courthouse
Courtroom B – 15th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

v.
FACEBOOK, INC.,

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Pursuant to the Discovery Standing Order for Magistrate Judge Maria-Elena James,

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undersigned counsel hereby attest that they met and conferred in person in a good faith attempt to

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resolve their disputes prior to filing the below joint letter.

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Dated: June 18, 2015

Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:

/s/
JOSHUA A. JESSEN

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Attorneys for Defendant Facebook, Inc.

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

/s/
MICHAEL W. SOBOL

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Attorneys for Plaintiffs

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Gibson, Dunn &
Crutcher LLP

ATTESTATION IN SUPPORT OF JOINT LETTER REGARDING PLAINTIFF DAVID SHADPOUR
Case No. C 13-05996 PJH (MEJ)

June 18, 2015
VIA ECF
The Honorable Maria-Elena James, Chief Magistrate Judge
United States District Court, Northern District of California
San Francisco Courthouse, Courtroom B - 15th Floor
450 Golden Gate Avenue, San Francisco, CA 94102
Re:

Campbell v. Facebook, Inc., N.D. Cal. Case No. 13-cv-05996-PJH (MEJ)

To The Hon. Maria-Elena James:
Plaintiffs and Defendant Facebook, Inc. jointly submit this letter brief pursuant to the Court’s
Discovery Standing Order.
I.

Background

This putative privacy class action challenges the alleged “scanning” of messages sent on
Facebook’s social media website, which Plaintiffs contend violates the federal Wiretap Act
and Cal. Penal Code § 631. Two of the named Plaintiffs (Matthew Campbell and Michael
Hurley) filed the initial complaint on December 30, 2013, and the third Plaintiff (David
Shadpour) filed a similar lawsuit on January 21, 2014. Judge Hamilton consolidated the
actions, appointed interim class counsel, and ordered the filing of a consolidated complaint.
On January 26, 2015, Plaintiffs (jointly) and Facebook exchanged written discovery requests.
On March 17, 2015, Plaintiffs’ interim class counsel informed Facebook’s counsel that Mr.
Shadpour intended to withdraw as a Plaintiff. Facebook responded that it would not stipulate
to Mr. Shadpour’s withdrawal unless he responded to all outstanding discovery requests,
produced documents, and sat for a deposition. Facebook sent a proposed notice for Mr.
Shadpour’s deposition (along with the other named Plaintiffs) in mid-April (see Dkt. 85-1,
Jessen Decl., Ex. E), and Plaintiffs’ counsel sent a draft stipulation to dismiss Mr. Shadpour
from the case.
Having conferred in person, the parties are now at an impasse and submit this joint letter
brief pursuant to the Court’s Discovery Standing Order. By way of this letter brief,
Facebook requests a deposition of Mr. Shadpour and complete responses to its outstanding
discovery requests, including a document production (Ex. A), and Plaintiffs’ interim class
counsel seek an Order pursuant to Rules 21 and/or 41(a)(2) of the Federal Rules of Civil
Procedure to dismiss Mr. Shadpour as a party to this action, and to relieve him of any
outstanding discovery obligations.

June 18, 2015
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II.

Facebook’s Position

Plaintiff David Shadpour filed his initial complaint approximately three weeks after the
Campbell action was filed. Mr. Shadpour’s attorneys at Pomerantz, LLP were appointed as
part of “Plaintiffs’ Executive Committee” and “Interim Class Counsel” by Order dated
April 15, 2014 (Dkt. 24). Along with the two other named Plaintiffs, Mr. Shadpour has
served substantial discovery on Facebook, including two sets of document requests (52 total
requests), two sets of interrogatories, and one set of requests for admission. Mr. Shadpour
(along with his co-Plaintiffs) served a second round of discovery requests on Facebook on
May 26, 2015—after his counsel notified Facebook that he intended to withdraw. Plaintiffs’
expansive discovery requests have placed a substantial burden and expense on Facebook.
The burdens on Mr. Shadpour have been comparatively minimal—one set of Requests for
Production of Documents, one set of Interrogatories, and a proposed deposition notice.
Although Mr. Shadpour responded in writing to Facebook’s discovery requests in March and
April, and promised to produce responsive documents (Ex. B), he has yet to produce a single
document. Facebook is entitled to Mr. Shadpour’s responsive documents and his deposition.
Rule 30(a) authorizes the deposition of any party, and the Ninth Circuit requires a “strong
showing …before a party will be denied entirely the right to take a deposition.” Blankenship
v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Plaintiffs have made no such showing at
all—they have not offered any declaration or other evidence from Mr. Shadpour citing any
burdens—and Facebook is willing to take his deposition in his hometown of Los Angeles at
a convenient time. In sum, he is still a party to this lawsuit, and “[i]t is beyond dispute that
Defendant[] [is] entitled to take the deposition of a party.” Colo. Cross-Disability Coal. v.
Abercrombie & Fitch Co., 2011 U.S. Dist. LEXIS 134930, at *4 (D. Colo. Nov. 22, 2011).
The district courts in this Circuit routinely require that class representatives sit for deposition,
even if they seek to dismiss themselves. E.g., Dysthe v. Basic Research, LLC, 273 F.R.D.
625, 628-30 (C.D. Cal. 2011); Fraley v. Facebook, Inc., 2012 U.S. Dist. LEXIS 21501,
at *6-10 (N.D. Cal. Feb. 21, 2011); Sherman v. Yahoo! Inc., 2015 WL 473270, at *7 (S.D.
Cal. Feb. 5, 2015); Pappas v. Naked Juice Co., 2012 WL 12248744 (C.D. Cal. Dec. 7, 2012);
Nilon v. Natural-Immunogenics Corp., 2014 WL 3779006, at *4 (S.D. Cal. July 31, 2014).
As for Plaintiffs’ assertion that evidence regarding Mr. Shadpour is “common” and available
from the other putative class representatives, that assertion is not supported by any evidence
and it assumes the answer to the very inquiry that must be conducted pursuant to Rule 23(a).
Facebook is entitled to discovery to probe grounds to oppose class certification. In
particular, the Federal Rules “clearly provide that parties may obtain discovery regarding
matters relevant to the action … [and] commonality is an issue that is relevant to Plaintiffs’
class certification efforts.” Dysthe, 273 F.R.D. at 628-29. As a named plaintiff and putative
class member, Mr. Shadpour’s testimony is relevant to the parties’ claims and defenses. Id.

June 18, 2015
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(explaining that a putative class representative’s deposition testimony is “highly likely to be
relevant to class certification issues, including commonality and the typicality of the class
representative’s claims”).1 Mr. Shadpour’s discovery responses also indicate that he has
information relevant to class issues and the merits of Plaintiffs’ allegations. See Ex. B.
Mr. Shadpour has not filed a noticed motion to withdraw, and Plaintiffs’ counsel now
attempts to secure that relief through this discovery brief. But even if this Court (or the
District Court) were to eventually dismiss Mr. Shadpour, the dismissal can and should be
conditioned on completing his deposition and document production. Where, as here,
defendant answered the complaint, courts may impose “terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). One condition courts regularly impose is completing
outstanding discovery obligations, including depositions. See, e.g., Fraley, 2012 U.S. Dist.
LEXIS 21501, at *9 (ordering deposition of named plaintiff seeking dismissal because the
protective order addressed plaintiff’s concerns, and “[i]f anything, the fact that [plaintiff]
may soon be dismissed from the lawsuit makes even more relevant Facebook’s discovery
into the basis for [plaintiff’s] allegations that will be a part of the record”).2 Facebook
respectfully requests that Mr. Shadpour complete his deposition and document production.
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Plaintiffs cite only two cases involving a withdrawal request and a deposition notice;
both are inapposite: (1) the corporate plaintiff in In re Urethane Antitrust Litig., 2006
WL 8096533, at *1-2 (D. Kan. 2006), offered evidence that it was “unable to protect the
interests of class members due to its financial difficulties” and defendants had already
“obtained [its] documents”—Plaintiff Shadpour offers no evidence of hardship and has
not produced documents; and (2) the plaintiff in Roberts v. Electrolux Home Prods., 2013
WL 4239050, at *2 (C.D. Cal. 2013), also offered evidence of “personal and family
health concerns,” and the court cited Dysthe, Fraley, & Colo. Cross-Disab. noting, “at
best, these decisions stand for the proposition that a named plaintiff cannot avoid the
obligation to sit for a deposition merely by filing a request to withdraw”—the same relief
sought here. Plaintiffs’ other cases involved very different circumstances: (1) the quoted
portion of Waller v. Fin. Corp. of Am., 828 F.2d 579 (9th Cir. 1987), addressed dismissal
of lawsuits (not parties); (2) the plaintiff in U.S. ex rel. Meyer v. Horizon Health Corp.,
2006 WL 1490216, at *1 (N.D. Cal. 2006), offered “valid medical reasons” for
withdrawal, and the court noted that the defendant could use third-party subpoenas to
obtain the information it needed; (3) James v. UMG Recordings, 2012 WL 4859069,
at *2 (N.D. Cal. 2012), involved a Rule 15(a) motion to file a consolidated complaint;
and (4) McConnell v. Red Robin Int’l, 2012 WL 1357616, at *3 (N.D. Cal. 2012),
involved the addition of a new named plaintiff (not withdrawal or a deposition notice).
See also Dysthe, 273 F.R.D. at 629 (ordering the deposition of a named plaintiff who
sought withdrawal, in part because he had been a plaintiff since the beginning of the suit
and through several amendments to complaint); Sherman, 2015 WL 473270, at *7
(conditioning withdrawal on plaintiff’s deposition); Mashek v. Silberstein, 20 F.R.D. 421,
422 (S.D.N.Y. 1957) (same); In re Wellbutrin XL, 268 F.R.D. 539, 544 (E.D. Pa. 2010)
(conditioning plaintiff’s dismissal upon document production).

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III.

Plaintiffs’ Position

Plaintiffs’ interim class counsel seek an Order pursuant to Federal Rules of Civil Procedure
21 and/or 41(a)(2) to dismiss Mr. Shadpour as a party to this action, and relieve him of any
outstanding discovery obligations.3 The two original plaintiffs in this action (Matthew
Campbell and Michael Hurley) remain willing and able to zealously represent the class. The
Class will not be prejudiced in any way by dismissal of Mr. Shadpour’s individual claims.
“When considering whether to permit a named plaintiff to withdraw from a class action,
courts have observed that ‘[a]bsent a good reason . . . a plaintiff should not be compelled to
litigate if [he] doesn’t wish to.’” Roberts v. Electrolux Home Prods., Inc., No. 12-1644, 2013
WL 4239050, at *2 (C.D. Cal. Aug. 14, 2013) (citation omitted); see also U.S. ex rel. Meyer
v. Horizon Health Corp., No. 00-1303, 2006 WL 1490216, at *1 (N.D. Cal. May 25, 2006)
(Armstrong, J.); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (stating that
potential class representatives must be able to “vigorously pursue” claims on behalf of the
class.) Accordingly, “a district court should grant a motion for voluntary dismissal unless a
defendant can show that it will suffer some plain legal prejudice as a result.” Waller v. Fin.
Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987).
Facebook would suffer no “plain legal prejudice” if it is not allowed to condition Mr.
Shadpour’s withdrawal on his deposition and additional discovery, for two principal reasons.
First, this motion comes early in the proceedings – no substantial resources have been
expended specific to Mr. Shadpour, as his claims merely mirror those brought by the original
plaintiffs. Moreover, Mr. Shadpour has not propounded any unique discovery on Facebook;
instead, all discovery has been propounded by the plaintiffs collectively. It is unlikely that
any preparation by Facebook for Mr. Shadpour’s deposition, noticed a month after Facebook
learned that Mr. Shadpour intended to withdraw, would not also apply to the Campbell and
Hurley depositions. See James ex rel. James Ambrose Johnson, Jr. v. UMG Recordings,
Inc., No. 11-1613, 2012 WL 4859069, at *2 (N.D. Cal. Oct. 11, 2012) (Illston, J.) (granting
substitution of named plaintiffs, finding “the nature of the litigation and the course of defense
will not be substantially altered, and [defendant] will not suffer substantial prejudice” where
proposed substitute plaintiffs and claims were substantially similar); c.f., McConnell v. Red
Robin Int’l, Inc., No. 11-03026, 2012 WL 1357616, at *3 (N.D. Cal. Apr. 17, 2012) (Alsup,
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Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court
may at any time, on just terms, add or drop a party.” Rule 41(a)(2) provides that after an
opposing party has served an answer, “an action may be dismissed at the plaintiff’s
request only by court order, on terms that the court considers proper.”

June 18, 2015
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J.) (“It is not clear . . . how the addition of [a new named plaintiff], absent additional claims,
will so alter defendant's preparation for this case as to result in undue prejudice.”).
Second, no allegation unique to Mr. Shadpour forms any fundamental part of the record. See
Dkt. 25 (CAC); Dkt. 29-36; 43; 45 (Briefing, Hearing, and Order on Motion to Dismiss);
Dkt. 53 (Answer). The allegations in Mr. Shadpour’s tag-along complaint mirrored those in
the original complaint filed by Mr. Campbell and Mr. Hurley. In the parties’ March 5, 2015
Joint Case Management Statement, Facebook asserted that its “dispositive defenses” would
dispose of the claims of “Facebook users” generally and, for example, “the people who use
Facebook were aware that the URLs in their messages were being processed—and consented
to that processing.” (Dkt. 60 at 4-5). Any critical testimony, discovery responses, or
documents that Mr. Shadpour might possess are equally available from the other Plaintiffs.
Unconditional dismissals are routinely granted under such facts. See Roberts, 2013 WL
4239050, at *2 (granting unconditional dismissal where withdrawal was sought before
summary judgment or class certification, minimal resources were expended preparing for the
plaintiffs’ depositions, and another plaintiff continued to represent the class; holding that
Dysthe, Fraley, & Colo. Cross-Disab. “do not stand for the proposition that . . . withdrawal
can be conditioned upon the plaintiff’s willingness to sit for a deposition”); Meyer, 2006 WL
1490216, at *1 (declining to require discovery as condition of dismissal, holding “[t]o the
extent that [defendant] is concerned about its access to certain documents or information in
[withdrawing plaintiff’s] possession, this can be addressed, as appropriate and necessary,
through third-party discovery.”); In re Urethane Antitrust Litig., No. 04-1616, 2006 WL
8096533, at *2 (D. Kan. June 9, 2006) (denying motion to compel withdrawing plaintiff’s
deposition, in part, because “[t]he information Defendants need regarding class certification
issues may be obtained from the remaining class representatives.”).
Courts have imposed conditions such as Facebook seeks where, unlike here, the
circumstances so warranted. See Sherman, 2015 WL 473270, at *7 (requiring deposition,
but not additional discovery, from original named plaintiff likely to give unique testimony,
whose deposition had been rescheduled several times, and who sought dismissal late in the
proceedings); Dysthe 273 F.R.D. at 629 (requiring discovery from original named plaintiff
who possessed unique information, and sought dismissal late in the proceedings); Fraley,
2012 WL 555071, at *3 (requiring deposition of original named plaintiff who sought
dismissal late in the proceedings, and whose individual allegations formed important part of
the record). By contrast, this request comes early; minimal resources have been expended on
Mr. Shadpour individually, and his allegations form no unique part of the record.
For the foregoing reasons, Plaintiffs respectfully request that this Court dismiss
Mr. Shadpour as a party, and deny Facebook’s request that such dismissal be conditioned
upon his deposition and or any additional discovery responses.