District of Columbia v. Facebook, Inc. Document 289

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IN THE SUPERIOR COURT FOR THE DISTRICT OF COLDMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA,

Civil Action No. 2018 CA 008715 B

Plaintiff, Judge Maurice A. Ross Next Event: Deadline to Fife Reply Briefs v. Date: February 22, 2022

FACEBOOK, INC.,
ORAL HEARING REQUESTED

Defendant.

DECLARATION OF J. ELE WADE-SCOTT

Pursuant to D.C. Superior Court Rule of Civil Procedure 9-I (c)(1)CA), I declare and state as follows:

1. My name is J. Bl: Wade-Scott. l am an attorney of record in the above-captioned matter. | make the following declaration on personal knowledge, except where otherwise noted.

2. Tama partner at the law firm of Edelson PC, which has been retained as outside counsel to represent the named Plaintiff in the above-captioned matter, the District of Columbia (“District”). Lam entering this declaration in support of Plainnif’s Reply in support of its Motion to Compel Concerning Privilege.

3. Attached hereto as Exhibit A-1 is the transcript for a hearing in front of Judge Vince Chhabria on February 10, 2022 in the case fy re Facebook, inc. Consumer Priv. User Profile Litig., No. 18-MD-02843, (ND. Cal.). I obtained this transcript from the court reporter/transcriber Echo Reporting, Inc., through the Northern District of California’s non-party

transcript order form process.

%* * %*

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I declare under the penalty of perjury that the above and foregoing is true and correct. Executed on this 22nd day of February, 2022 in Chicago, Hlinois. Respectfully submitted,

Dated: February 22, 2022 sf J Eli Wade-Scott

J. Eli Wade-Scott

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Exhibit A-1

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AMENDED TRANSCRIPT

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Before The Honorable Vince Chhabria, Judge IN RE: FACEBOOK, INC., CONSUMER PRIVACY USER PROFILE LITIGATION,

TRANSCRIPT OF PROCEEDINGS OF

San Francisco, California Thursday, February 10, 2022 THE OFFICIAL ELECTRONIC SOUND

RECORDING 4:23 -
5:01 = 38 MINUTES

APPEARANCES:

For Plaintiffs:

BY:
BY:

Bleichmar, Fonti & Auld, LLP 555 12th Street, Suite 1600 Oakland, California 94607 LESLEY E. WEAVER, ESQ.

ANNE KATHLEEN DAVIS, ESQ.

MATTHEW S. MELAMED, ESQ.

Keller Rohrback, LLP 1201 Third Avenue, Suite 3200 Seattle, Washington 98101 DEREK W. LOESER, ESQ.

DAVID J. KO, ESQ.

CARI CAMPEN LAUFENBERG, ESQ.

(APPEARANCES CONTINUED ON NEXT PAGE.)

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APPEARANCES: (Cont’d.)

For Plaintiffs:

For Defendant:

BY:
BY:
BY:

Facebook General Counsel:

Transcribed by:

BY:

Keller Rohrback, LLP 300 Lakeside Drive, Suite 1000 Oakland, California 94612 BENJAMIN B. GOULD, ESQ.

Gibson, Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, California 90071 ORIN SNYDER, ESQ.

DEBORAH L. STEIN, ESQ.

Gibson, Dunn & Crutcher, LLP 1881 Page Mill Road Palo Alto, California 94304 MARTIE KUTSCHER CLARK, ESQ.

Meta Platforms, Inc.

1601 Willow Road Menlo Park, California 94025 SANDEEP SOLANKI, ESQ.

Echo Reporting, Inc.

Contracted Court Reporter/ Transcriber echoreporting@yahoo.com

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Thursday, February 10, 2022 4:32 p.m.

P-R-O-C-E-E-D-I-N-G-S

--o00-- THE CLERK: Calling case number 18-MD-2843, In Re: Facebook, Inc., Consumer Privacy User Profile Litigation. Counsel for the Plaintiffs, please state your appearances for the record.

MR. LOESER (via Zoom): Good afternoon, your Honor. Derek Loeser from Keller Rohrback. With me is Cari Laufenberg, David Ko and Ben Gould.

THE COURT: Good afternoon.

MS. WEAVER (via Zoom): Good afternoon, your Honor. Lesley Weaver of Bleichmar, Fonti and Auld and with me are my partners, Matthew Melamed and Anne Davis. THE COURT: Good afternoon.

THE CLERK: And for Defendants?

MR. SNYDER (via Zoom): Yes, good afternoon, your Honor. It’s Orin Snyder, Deb Stein, Martie Kutscher Clark for Facebook. And with us, also, Sandeep Solanki who is the Vice President and Associate General Counsel of Litigation for Facebook.

THE COURT: Good afternoon. Hello, Mr. Solanki. MR. SOLANKI (via Zoom): Hello, your Honor. Good afternoon.

THE COURT: Good afternoon. I’11 chat with you in

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a second, okay?

So we are not going to have any argument about these discovery disputes today. I’m going to give you my preliminary view of things and then we’1ll talk about how --

what the next steps are.

My preliminary view, and you know I say it’s preliminary, but I have to say it’s quite a strong preliminary view, is that Facebook’s conduct in discovery, thus far, has been sanctionable. And so I would like to

invite the Plaintiffs to file motions for sanctions on any

issue that they believe -- where they believe that -- like I do -- that -- tentatively -- that Facebook’s discovery conduct has been sanctionable.

I -- it seems to me that there are a number of areas where Facebook could, and probably should, be sanctioned under Rule 37 and/or 28 USC Section 1927. Maybe other -- maybe also, pursuant to the Court’s inherent authority, I don’t know. But, I think there are a number of examples. And I think that, by the way, probably the lawyers should be jointly sanctioned with Facebook. And what I -- generally, T think it’s not a good policy to sanction associates at law firms, but I think probably all of the partners who are involved in this case, probably should be sanctioned alongside Facebook itself.

I’ll identify a couple of examples. I sort of leave it

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to the Plaintiffs to decide whether to file sanctions motions, and if so, on what issues, but there are several issues where I think, at least preliminarily, based on what I’ve read so far, and based on my conversations with the Special Master, you know, the Plaintiffs should be awarded all costs and attorney’s fees that they’ve incurred in pursuing the discovery, or pursuing the issue on which

Facebook has been stonewalling.

So, you know, a couple of the issues I’11 just mention. One is the app developer investigation documents. I mean, that appears to be particularly egregious. I think Facebook

has known, since we were talking about it, towards the beginning of the litigation, that it was going to be required to turn these over, and certainly since at least September of ‘21 when Judge Corley ordered them turned over. Facebook has known that it needs to do it, and as far as I can tell, has been stonewalling. So it seems to me that that issue, in particular, could very likely be an

appropriate subject for a motion for sanctions from the

Plaintiffs.

Another one is the named-complainants data. Again, you know, Judge Corley ruled in October of 2020 that this stuff

was discoverable and sort of -- it’s not clear to me why Judge Corley needed to rule that it was discoverable,

because it seems obvious to me that it was discoverable, but

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again, Facebook has been stonewalling on it.

I think I should probably set some very tight deadlines for when this stuff needs to be -- when the completion of this discovery needs to occur and we can talk about that.

I’71ll sort of defer to the Plaintiffs on that. But the main thing, you know, aside from setting deadlines, by which this stuff needs to be completely turned over, the main thing -- the main point I want to make right now is I think what’s happened so far is sanctionable, very likely, and I want to invite the Plaintiffs to file motions for sanctions on those issues, if they agree with me, and any other issue that they -- where they believe Facebook has engaged in sanctionable conduct.

And again, my tentative view is that the -- that Facebook and the lawyers, the partners on the pleadings, should be jointly liable for the sanctions and they should both be sanctioned. And, I guess, you know I know from prior cases that Mr. Loeser is a very courteous opposing counsel, but if you -- if you’re -- and maybe you would not be inclined to include the lawyers, maybe you would not be inclined to move for sanctions at all, but if you move for Sanctions, I’m going to want to know if there’s a good reason not to sanction the lawyers, as well as the clients. Or the client, I should say.

Also, another issue is the depositions of the named

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Plaintiffs. Facebook has been fighting to take the depositions of named Plaintiffs, and then all of a sudden announced that it is not ready to take depositions of named Plaintiff, because it doesn’t have certain information that it needs. And I was looking at Facebook’s brief that it filed, I guess it looks like maybe today or maybe last night, and here is the first reason that Facebook gives for calling off the depositions. It says, “The Plaintiffs have not provided basic information regarding their claims.” And the first thing they say is, “Plaintiffs have not identified what information they believe Facebook shared without consent.” So it sounds like what Facebook is saying is, until you identify what information you believe we shared

without your consent, we’re not going to take your

deposition. That is preposterous and you are going to take their depositions now, or you are going to forego -- you’re going to waive the right to take their depositions at all.

And I don’t know if the Plaintiffs incurred any fees and costs associated with setting up these depositions that Facebook has now announced that it’s not ready to take, but if so, that strikes me as probably sanctionable, as well.

So let me ask the Plaintiffs, you know, obviously there are other issues that maybe aren’t ripe for a motion for Sanctions yet. You may not be ready because you’re still

kind of meeting and conferring on something, or whatever.

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There are other issues that do seem ripe for a motion for Sanctions, and so I want to set a deadline for the filing of motion for sanctions on any of these issues that are ripe for adjudication of a sanctions motion; so for the Plaintiffs, when would you like that deadline to be? MR. LOESER: Your Honor, we could file a motion in seven days.

THE COURT: You want to do it that soon? That’s fine.

MR. LOESER: Well I’m looking around the room and I don’t -- THE COURT: I just want to make sure -- I mean the reason I ask that is I want to make sure -- you know, you have to brief -- and by the way, no 15 page -- 15 page limit. Take whatever space you need to articulate the misconduct and to identify the appropriate standard for imposing sanctions, including whether there needs to be a finding of bad faith and all of that. But that’s why I asked, is seven days enough.

MR. LOESER: Well and I’m receiving a lot of feedback now and the feedback I’m getting is 14 days, so thank you for asking again.

THE COURT: So the Plaintiffs -- any motion for sanctions from the Plaintiffs, on any issues that are ripe, are due in 14 days and you can figure out when you want to

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notice the hearing for and all of that. Confer with the other side on that, of course. And I will, of course, not make -- not reach any final conclusion on what I think about all of these issues until I’ve had a chance to read the papers submitted by both sides. But that is how we’re going

to handle these discovery problems that have taken place

thus far.

And so now, let me turn to Mr. Solanki. I was glad to see your name on the filing that Facebook made yesterday.

I’m glad to see that you’ve been designated as the decision maker who is responsible for Facebook’s decisions in all discovery matters in this case. What that will entail is that you have to attend all of the status conferences that we have here in this virtual courtroom, or hopefully it will be the real courtroom again sometime soon. It also means you're required to attend all of the mediations with the Special Master and it means that you are required to be able to make a decision -- a final decision -- on Facebook’s behalf for any topic that is covered in the mediations with the Special Master. And so if you believe that the topic of the mediation is such that you would need to run it up the flagpole before making a final decision, then the person -- whatever person is at the top of that flagpole, is required to attend the mediation; okay?

MR. SOLANKI: Yes, your Honor.

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THE COURT: And if a mediation occurs and Facebook is not in a position to make a final decision on a discovery issue, Facebook will be sanctioned. And if Facebook makes a decision during a mediation with a Special Master and then goes back on that decision after the mediation, Facebook will be sanctioned.

MR. SOLANKI: I understand.

THE COURT: Let me see -- have I forgotten any reason why Facebook will be sanctioned in the future? Probably. Please do not consider my list to be an exhaustive or an exclusive one, of the reasons that Facebook may be sanctioned in the future in this case; okay, Mr. Solanki?

MR. SOLANKI: Yes, your Honor.

THE COURT: Do you understand and do you have any questions or concerns about any of that?

MR. SOLANKI: No, it’s clear. Thank you for the explanation.

THE COURT: Okay. lLet’s see, let me look at my notes here. Anything else I wanted to make sure to discuss? No, I think that’s it; is anybody -- does anybody else have anything else that they would like to discuss today? MR. SNYDER: Your Honor, on our opposition to the sanctions motion, given the seriousness of the issues, we would respectfully request 21 days to respond.

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THE COURT: I’11 let you meet up and confer with the other side about that and you can submit a stipulation, or whatever.

MR. SNYDER: Thank you, Judge.

MR. LOESER: Your Honor, while we’re doing that, if there’s an agreement for more time for Facebook, I hope it’s okay with you if we also have more time for ourselves?

THE COURT: I’m -- within reason, I’m happy for you to negotiate a schedule and, you know, submit a stipulation for the adjudication of these motions. And I want to make sure -- I certainly want to make sure that Facebook has enough time and enough opportunity to explain its conduct, thus far. And the conduct of its lawyers.

Okay, is there anything else that we can discuss today in furtherance of getting this case moving? Because this case is going to start moving a lot faster than it has been moving, thus far.

And by the way, as everybody knows, Judge Corley has been hearing appeals from discovery rulings by the Special Master. Starting today, for any new -- sorry, as everybody knows, Judge Corley has been nominated to the district court bench and is likely to be confirmed pretty soon. So starting today, for any new appeal from a ruling by the Special Master, I will hear those appeals, pursuant to the

same process that was set forth in the amended order that I

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filed recently.

And this case is going to be, as I said, moving along much much faster than it has been and so what -- is there anything that we can discuss in furtherance of that?

MR. LOESER: Your Honor, if I may? Derek Loeser. The one thing that perhaps we could discuss is the schedules and to your point about needing to move the case.

The substantial completion deadline has now come and gone and while Facebook’s position has chipped it a bit on what more it has to do, we fear that there’s a lot more documents to be produced and I think we need to adjust the schedule to accommodate that. It’s not entirely clear to us how much time it will take Facebook to produce the remaining outstanding documents. Not too long ago they were saying ti would take more than a year.

THE COURT: It’s not going to take more than a year. And if they need to -- if they feel that they need to conduct review -- I mean, my inclination would be, I don’t know if they think they need to conduct further review of the app developer investigation documents, but I think they’ve lost the opportunity to do that and they need to simply turn them over immediately.

MR. SNYDER: Your Honor --

THE COURT: Whether they’ve reviewed them or not.

MR. SNYDER: Your Honor, tomorrow we’re turning

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over 40,000 pages of documents on the ADI production. I think the final order we got was in December, and then we will be rolling thereafter. And I understand that we can -- we think we’ll be able to complete that within one month, if not sooner, but certainly tomorrow 40,000 pages are being produced and we’re working around the clock to produce those, as we speak.

THE COURT: All documents relating to the app developer investigation must be turned over to the Plaintiffs no later than 21 days from today.

MR. SNYDER: That’s fine, your Honor.

THE COURT: And the other instruction that I -- the other order that you are operating under, not just for the app developer investigation documents, but for all documents and all information, is that when in doubt, resolve all doubts in favor of turning it over. MR. SNYDER: We have been doing that, your Honor, for sure. And we will continue to do so.

THE COURT: Okay. What else?

MR. LOESER: So that leaves the question of the schedule, the dates, the substantial completion date and all of the dates that flow from it. You know, the position we're trying to avoid having ourselves end up in is, we’re taking depositions and we have a lot of depositions to take, we want these documents for the depositions. So it may be

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necessary to push things out to accommodate the official time that Facebook -- THE COURT: Do you know what I would suggest, and I’m interested in hearing from you on this, but here is my suggestion. Take the depositions. And then if you need to take the -- take a second deposition of these witnesses, based on additional documents, you’1ll be able to take them again.

MR. LOESER: Understood. We’1ll do that, your Honor.

THE COURT: Because it’s Facebook’s fault that we’re in this position and -- largely Facebook’s fault -- and so their peoole are going to need to be deposed -- may need to be deposed twice, instead of once.

MR. LOESER: Understood.

THE COURT: Okay, so what is that -- do you need anything more on the schedule? Do you need anymore direction on the schedule, or in light of what I just said, is the schedule okay?

MR. LOESER: I think the proof will be in the pudding, your Honor. If 30 days from now, unfortunately we’re still waiting for a huge volume of documents, you can be sure you’ll hear from us about that and we’1ll ask you at that time for more time to take the depositions, or more time to complete discovery of the case. But hopefully that

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won’t be necessary and we’1ll just move forward with due haste.

THE COURT: When is the -- like how -- when is the cutoff for depositions? I can’t remember.

MR. SNYDER: June 17th, your Honor.

THE COURT: Okay.

MR. SNYDER: I think we’re -- we all believe we can comfortably get there, and as I -- I said 40,000, my colleagues remind me that it’s 30,000 ADI tomorrow, but we have, and have had for the past month, a whole team reviewing the ADI documents and they’re going to come rolling. And, your Honor, the default has been produced when in doubt. We’re not -- we’re not parsing documents here.

THE COURT: Mr. Loeser, what’s your view of whether I should force Facebook to take the depositions of the named Plaintiffs in haste, you know, sort of consistent with what they were originally insisting on doing? Should I leave that alone, or should I require them to do those depositions by a certain date?

MR. LOBSER: I think they should have to move forward with those depositions. We’ve presented all of the Plaintiffs for their depositions. The Special Master did issue an order today, and another yesterday, that will require some additional documents from the witnesses.

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Frankly, we don’t think that they’re essential, but we’ll produce the, as ordered.

THE COURT: And the same response. I mean, I -- take the depositions anyway and if there is some signification document that Facebook can put in front of me that justifies reopening the deposition, I’1ll entertain it, but it’s time to -- time to plow ahead.

MR. SNYDER: Your Honor -- may I just be heard, your Honor, on that -- for a moment? I think it might be helpful. On the depositions, we were eager, chopping at the bit to take all of the Plaintiffs’ depositions. There was -- without getting into the specifics, there were document requested interrogatories that the Plaintiffs were not answering that were -- went to the heart of those depositions about the privacy settings, et cetera, et cetera. And as Mr. Loeser said just today, we have two orders compelling the Plaintiffs to produce those documents. And so our hesitancy in taking those depositions was not to stonewall or to delay, we just needed that basic information. The information is now coming to us, pursuant to these orders, and upon receipt we will take all of those

depositions promotly and seriatim.

THE COURT: Are they scheduled? Mr. Loeser, were these depositions of these named Plaintiffs -- have the dates passed from when they were supposed to take place, or

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are they still like on schedule but Facebook is saying we’re

not doing it at this -- on these dates?

MR. LOEBESER: Some of the dates have passed. I believe some have not yet, or are not scheduled; Ms. Weaver,

do you have better view on that?

MS. WEAVER: Yes, have three scheduled and one was 36 hours away and those three were canceled. The remaining five we were negotiating dates. So the truth is that these Plaintiffs were ready to go. It’s hard for individuals to prepare for depositions like this, it’s hard for anybody. But in general, we would like to proceed.

MR. SNYDER: Your Honor, again, we are eager, I can assure you and attest and swear, to take these depositions. Our only reluctance, or hesitancy was, we wanted to be efficient and these requests, which go to the heart of the depositions about their privacy settings and other core issues that are at the heart of this case, we had a dispute over, and as I said, over the last 24 hours the special master has ordered the production of those and upon receipt, we will take those seriatim. We’1ll double track, tripe track. It’s not a question of not wanting to take them, it’s that we didn’t want to take them and didn’t think we --

THE COURT: I don’t care if you’ve received the

documents or not. I want these depositions taken promptly,

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and if you believe that there is some basis for reopening the deposition, based on receipt of documents, you can seek permission to reopen the deposition. But I don’t care. But you keep saying, we will take the deposition upon receipt of the documents. Take the depositions promptly. And I think for now, what I’m going to do is, I’m going to order you to have all of these depositions scheduled, all the depositions of the named Plaintiffs, scheduled by Monday. And you -- I711 let you see if you can negotiate amongst yourselves, and if there is a problem, and you can’t get those depositions scheduled amongst yourselves by Monday, then you can file -- you can file a joint letter directly with me and I will resolve it.

MR. SNYDER: Thank you, your Honor. And had we known the Court would be open to us reopening, or retaking the deposition after we got the relevant documents, we would have proceeded in that way, but customarily I’ve taken depositions upon receipt of documents so that --

THE COURT: I understand and what I want to emphasize for the Plaintiffs is, I will be very liberal about allowing -- if the Plaintiffs, you know, take a Facebook witness’s deposition and then they believe that they need to circle back, based on the receipt of additional documents, I will be very liberal in allowing the Plaintiffs

to take the -- take a second deposition, or reopen the

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deposition.

MR. SNYDER: And the same for Facebook, Judge? Because I do think that -- again, the documents -- THE COURT: Not necessarily. Not necessarily, based on the view that I have developed about how Facebook has conducted itself thus far in discovery.

MR. SNYDER: And, your Honor, I assume your Honor does not want us to be heard on that issue, even ona preliminary or high-level basis?

THE COURT: Correct. You’re always free, you can ask to reopen a deposition if you -- MR. SNYDER: No, no, I meant on the larger issue that your Honor raised at the outset of the hearing. THE COURT: No.

MR. SNYDER: Okay, thank you.

THE COURT: You’ll have plenty of opportunity in response to sanctions motions to say your peace. MR. SNYDER: Thank you, Judge.

MR. LOESER: Your Honor, again, if I may? If we could have until Wednesday to schedule the depositions? We have to contact these people. They have to get -- make arrangements at work to make themselves available. It might take a couple of days to clear all schedules to -- in order to have dates certain to offer to Facebook for the remaining people.

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THE COURT: That’s fine.

Okay, what else?

MR. LOESER: Nothing else on my list, your Honor. MR. SNYDER: Nothing here, your Honor.

THE COURT: Okay, very good. Should we schedule another status conference? Perhaps, you know, 20 -- 35 days from now, something like that?

MS. WEAVER: That would be good, your Honor. THE COURT: Let me take a look at my calendar real quick. What about -- I was going to propose March 23rd at 10:00 a.m. -- sorry, at 1:00 p.m.; is that too long from now? Should we do something sooner?

MR. LOERSER: If we could do something sooner, I think that would be quite helpful if it works for your calendar, your Honor.

THE COURT: All right, let me take a look.

Possibly the -- it’s hard -- the trial calendar is just bonkers right now with all of these cases that have been sitting waiting to go to trial. But let me do this, let’s -- MR. LOESER: Your Honor -- THE COURT: Let’s schedule something for the 23rd at 1:00 o’clock, but if you believe a status conference is necessary before then, get in touch with us and we’1ll find a time, even if it has to be in the evening or early in the

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morning, or something like that; MR. LOESER: Thank you, MS. WEAVER: Thank you, THE COURT: Okay. What (No response.)

THE COURT: All right.

on the 23rd, if not before, and I very positive progress report the MR. LOESER: Thank you,

MS. WEAVER: Thank you,

okay?

your Honor.

your Honor.

else? Anything else?

Great. So we’ll see you look forward to seeing a next time I see you.

your Honor.

your Honor.

(Proceedings adjourned at 5:01 p.m.)

022

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CERTIFICATE OF TRANSCRIBER

I certify that the foregoing is a true and correct transcript, to the best of my ability, of the above pages of the official electronic sound recording provided to me by the U.S. District Court, Northern District of California, of the proceedings taken on the date and time previously stated in the above matter.

I further certify that I am neither counsel for, related to, nor employed by any of the parties to the action in which this hearing was taken; and, further, that I am not financially nor otherwise interested in the outcome of the

action.

Echo Reporting, Inc., Transcriber

Saturday, February 12, 2022

Echo Reporting, Inc.