TimesLines, Inc v. Facebook, Inc.

Filing 60

MEMORANDUM by Facebook, Inc. in Opposition to motion to clarify 58 and compel (Willsey, Peter)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.
Plaintiff,
v.
FACEBOOK, INC.
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No.: 11 CV 6867
Jury Trial Demanded

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO
PLAINTIFF TIMELINES, INC.’S MOTION TO CLARIFY AND COMPEL

I.

INTRODUCTION
The Motion to Clarify and Compel (the “Motion”) filed by Plaintiff Timelines, Inc.

(“Timelines”) is unwarranted. Timelines has not articulated any reason it needs Facebook’s
complete document production by this Friday. Facebook has already informed Timelines that it
is in the process of reviewing tens of thousands of documents and intends to complete its rolling
productions by July 31, 2012 – one month before the parties’ agreed upon close of fact discovery
on August 31 and five months before the Court-ordered close of all discovery on December 28.
Further, Facebook is willing to extend the August 31 date if Timelines requires more time to
review the production and take fact depositions. It is unnecessary for the Court to adjust any
deadlines or compel any discovery from Facebook.
II.

ARGUMENT
Timelines inexplicably moves to compel Facebook to complete its document production

by June 29, 2012, nearly six months before the close of all discovery, two months before the
mutually agreed target for the end of fact discovery, and one month before the date Facebook has
estimated it can complete its main production. Timelines’ motion is devoid of any explanation
or showing of urgency for why an order compelling production is necessary or appropriate given
that Facebook has produced, and continues to diligently produce, responsive documents. The
motion lacks merit and should be denied.
Facebook is proceeding reasonably to satisfy its discovery obligations. As Timelines is
well aware, discovery was initially postponed by mutual agreement for early settlement
negotiations.

Since that time, the parties responded to written discovery and negotiated a

protective order, and have each produced hundreds of pages of documents.

-2-

Facebook has now conducted interviews of potential document custodians, collected data
from relevant custodial and noncustodial sources, and is in the process of reviewing tens of
thousands of documents potentially responsive to Timelines’ 75 document requests. As it has
informed Timelines, Facebook expects to continue producing documents on a rolling basis and to
complete its production by the end of July. Timelines’ demand that Facebook complete its
production by this Friday, June 29, is logistically impossible and unnecessary in light of the
December 28 close of discovery.
Timelines, on the other hand, has indicated that its initial production of 229 documents
constitutes the entirety of its production. This production does not include any internal emails
relating to the substantive issues in this proceeding. If in fact Timelines only possesses 229
responsive documents, the burden of discovery in this proceeding is obviously disproportionate.
It is hardly surprising that, unlike Timelines, Facebook’s collection and review is ongoing.
Timelines’ sense of urgency is misplaced; Timelines will not be prejudiced in any
manner by the current trajectory of Facebook’s production. While the parties have agreed to
complete fact discovery by August 31, that date is not part of the scheduling order in this case.
Although Facebook believes there is no scheduling ambiguity that requires the Court’s
clarification, it is willing to extend the August 31 fact discovery date if Timelines needs more
time to review Facebook’s production and take fact depositions.1

Facebook has already

conveyed this offer to Timelines.
III.

CONCLUSION.
For the reasons stated above, Facebook respectfully requests that the Court deny

Timelines’ Motion to Clarify and Compel.

1

No depositions have been noticed by either party.

-3-

Dated: June 26, 2012

Respectfully submitted,

By:

/s/ Peter J. Willsey
Peter J. Willsey (pro hac vice)
Brendan J. Hughes (pro hac vice pending)
COOLEY LLP
777 6th Street, NW, Suite 1100
Washington, DC 20001
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Michael G. Rhodes (pro hac vice)
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Steven D. McCormick (IL Bar No. 1824260)
KIRKLAND & ELLIS LLP
300 North Lasalle
Chicago, IL 60654-3406
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant-Counterplaintiff
FACEBOOK, INC.

-4-

CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that he served the foregoing
DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFF TIMELINES, INC.’S
MOTION TO CLARIFY AND COMPEL by means of the Court’s CM/ECF System, which
causes a true and correct copy of the same to be served electronically on all CM/ECF registered
counsel of record, on June 26, 2012.

Dated: June 26, 2012
/s/ Peter J. Willsey
Peter J. Willsey (pro hac vice)
Brendan J. Hughes (pro hac vice pending)
COOLEY LLP
777 6th Street, NW, Suite 1100
Washington, DC 20001
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Defendant-Counterplaintiff
FACEBOOK, INC.

1040697/HN

-5-