Case 3:20-cv-08570-JD Document 377 Filed 11/14/22 Page 1 of 4
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`November 14, 2022
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`The Honorable James Donato
`San Francisco Courthouse, U.S. District Court
`450 Golden Gate Avenue, Courtroom 11 – 19th Floor
`San Francisco, CA 94102
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`Re:
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`VIA CM/ECF FILING
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`Facebook’s Refusal to Produce Two FTC Deposition Transcripts and Deposition Schedule
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`Dear Judge Donato:
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`Consumer Plaintiffs (“Consumers”) seek the Court’s intervention because Facebook has
`refused to follow the Court’s directions regarding producing Facebook deposition transcripts from
`the FTC’s antitrust action. At the October 20, 2022 status conference, the Court found “reasonable”
`Consumers’ requests that Facebook provide: (1) transcripts and exhibits from related depositions
`of Facebook and its employees in the FTC action; and (2) a list of future Facebook depositions in
`the FTC action to facilitate Consumers’ going forward requests for some, but not all, transcripts
`and exhibits. Oct. 20, 2022 Hrg. Tr. (“Tr.”) at 5:20–6:9. The Court then instructed the parties to
`“work that out by exchanging transcripts on a periodic” basis. Id. at 7:9–10. Consistent with the
`Court’s directions, three weeks ago Consumers requested Facebook produce two Facebook Rule
`30(b)(6) deposition transcripts and associated exhibits, and the schedule for upcoming Facebook
`depositions in the FTC action. Facebook refused to produce this information. After many emails
`and a meet and confer on November 10, 2022, the parties reached impasse on this dispute.
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`This is not a complicated issue and Consumers should not have had to come back to the
`Court on this issue a second time. Yet Facebook has responded to Consumers’ straightforward
`request for two transcripts and a deposition schedule with a convoluted set of “compromise”
`demands that are contrary to the Court’s directions at the status conference. First, Facebook would
`only agree to produce the two transcripts if Consumers agree to reduce their number of hours of
`Rule 30(b)(6) testimony of Facebook in this case. Second, Facebook would only inform
`Consumers of future Facebook deposition in the FTC if Plaintiffs agree to coordinate depositions
`between the two cases so that depositions of Facebook deponents will occur on consecutive days—
`even though substantial completion of documents in this case is not likely for many more weeks.
`Even then, Facebook would only provide an update every two weeks as to Facebook depositions
`it unilaterally deems relevant. Consumers did not agree to these demands, which are contrary to
`the Court’s explicit instructions and seem calculated to introduce inefficiencies into this case. The
`parties are therefore at an impasse. Consumers respectfully request that the Court order Facebook
`to: (1) produce the two requested deposition transcripts and associated exhibits; and (2) provide a
`list of all Facebook depositions in the FTC action that are currently scheduled, and update that list
`weekly going forward.
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`Facebook has no valid reason for refusing to produce the two requested FTC transcripts.
`They are both relevant, and would pose little burden to Facebook. As to the first, regarding user
`surveys, Facebook admits it is relevant to this case: “We have reviewed the transcript and agree
`there are some relevant portions.” 11/11/2022 Email from Facebook Counsel. The second,
`regarding Facebook’s databases and systems, is also relevant. Facebook has indicated this
`deposition’s subject matter was “where and how user data worldwide for the last twelve years has
`been stored.” Federal Trade Commission v. Meta Platforms, Inc., Case No. 1:20-cv-03590-JEB
`(D.D.C.), Dkt. 178 at 15. Here, Consumers allege that Facebook obtained and maintained
`monopoly power by deceiving the market as to the data that Facebook collects, and the uses to
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`Case 3:20-cv-08570-JD Document 377 Filed 11/14/22 Page 2 of 4
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`which that data is put. Facebook’s testimony regarding the “user data” it collects and uses, how
`that data flows through Facebook’s systems and where it is stored, and the extent which Facebook
`is able (or unable) to track that data (or not) is highly relevant. Indeed, Consumers previously
`issued a Rule 30(b)(6) deposition notice on similar topics but then withdrew it. Facebook now
`refuses to produce the FTC “user data” deposition transcript based on the groundless claim that
`Consumers’ transcript request is “an improper attempt to circumvent 30(b)(6) limits.” 11/11/2022
`Email from Facebook Counsel. It is no such thing. Consumers withdrew their deposition notice
`due to Facebook’s unreasonable objections and demand for a degree of specificity in the topics
`that was impossible for Consumers to provide given Facebook’s asymmetrical access to
`information and lack of document production. Consumers now request this transcript from the
`FTC case in the hope that they can obtain the relevant information they previously sought.
`Facebook’s demand that Consumers reduce their own deposition time in this case in order to
`receive relevant transcripts from the FTC case is unreasonable. The Court did not condition
`Facebook’s production of transcripts from the FTC action on a reduction in Plaintiffs’ deposition
`time in this case. To the contrary, the Court stated, “I’m not going to carve up eight hours,” “[i]n
`our case, this case, I’m not going to limit the Plaintiffs to four hours for splitting,” and “[i]t is not
`going to be a time splitting thing.” Tr. at 6:24–25, 7:4–8. Providing Consumers with access to
`this transcript is also a more efficient way of proceeding—this is a single-defendant case.
`Statements made by Facebook in the context of the FTC’s action would likely also be admissible
`in this proceeding. Allowing Consumers access to this transcript on a highly relevant topic will
`almost certainly move this case forward in a more efficient manner than if discovery was
`conducted on two parallel tracks.
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`To the second issue, Facebook also has no valid reason for refusing to periodically provide
`a schedule of Facebook depositions in the FTC action to facilitate Consumers’ targeted requests
`for certain relevant transcripts. The Court has already rejected Facebook’s proposed condition of
`forced coordination of depositions. Tr. at 6:10-7:12. Facebook’s objection that providing this
`information imposes an undue “administrative burden” is baseless. Facebook is the common party
`in this action and the FTC action. It is easy for Facebook to keep track of the depositions happening
`in the FTC action and, on a weekly basis, forward FTC-Facebook deposition notices to Consumers
`or provide notice of confirmed depositions via email. Nor is there any reason for Facebook to play
`gatekeeper and provide a partial list of the scheduled Facebook depositions it decides are relevant.
`Consumers have already told the Court they will not request every deposition transcript.
`Consumers should be able to see the full list of depositions and make their own relevance
`determination.
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`Facebook has responded to Consumers’ straightforward request with baseless obstruction.
`Consumers respectfully request that the Court compel Facebook to do what it was already
`supposed to do: (1) produce the two requested deposition transcripts and associated exhibits; and
`(2) provide a list of all Facebook depositions in the FTC action that are currently scheduled, and
`update that list weekly going forward.
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`Case 3:20-cv-08570-JD Document 377 Filed 11/14/22 Page 3 of 4
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`DATED: November 14, 2022
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`
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`By /s/ Shana E. Scarlett
`HAGENS BERMAN SOBOL SHAPIRO LLP
`Shana E. Scarlett (Bar No. 217895)
` shanas@hbsslaw.com
`715 Hearst Avenue, Suite 202
`Berkeley, CA 94710
`Telephone: (510) 725-3000
`
`Steve W. Berman (pro hac vice)
`steve@hbsslaw.com
`1301 Second Avenue, Suite 2000
`Seattle, WA 98101
`Telephone: (206) 623-7292
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`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`W. Joseph Bruckner (pro hac vice)
` wjbruckner@locklaw.com
`Robert K. Shelquist (pro hac vice)
` rkshelquist@locklaw.com
`Brian D. Clark (pro hac vice)
` bdclark@locklaw.com
`Rebecca A. Peterson (Bar No. 241858)
` rapeterson@locklaw.com
`Arielle S. Wagner (pro hac vice)
` aswagner@locklaw.com
`Kyle J. Pozan (admitted pro hac vice)
` kjpozan@locklaw.com
`Laura M. Matson (admitted pro hac vice)
` lmmatson@locklaw.com
`100 Washington Avenue South, Suite 2200
`Minneapolis, MN 55401
`Telephone: (612) 339-6900
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`Respectfully submitted,
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`By /s/ Stephen A. Swedlow
`QUINN EMANUEL URQUHART & SULLIVAN,
`LLP
`Stephen A. Swedlow (pro hac vice)
` stephenswedlow@quinnemanuel.com
`Michelle Schmit
` michelleschmit@quinnemanuel.com
`191 N. Wacker Drive, Suite 2700
`Chicago, IL 60606
`Telephone: (312) 705-7400
`
`Kevin Y. Teruya (Bar No. 235916)
` kevinteruya@quinnemanuel.com
`Adam B. Wolfson (Bar No. 262125)
` adamwolfson@quinnemanuel.com
`Brantley I. Pepperman (Bar No. 322057)
` brantleypepperman@quinnemanuel.com
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`Telephone: (213) 443-3000
`
`Manisha M. Sheth (pro hac vice)
` manishasheth@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7000
`
`Interim Counsel for the Consumer Class
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`Case 3:20-cv-08570-JD Document 377 Filed 11/14/22 Page 4 of 4
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`ATTESTATION OF STEPHEN A. SWEDLOW
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`This document is being filed through the Electronic Case Filing (ECF) system by attorney
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`Stephen A. Swedlow. By his signature, Mr. Swedlow attests that he has obtained concurrence in
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`the filing of this document from each of the attorneys identified on the caption page and in the
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`above signature block.
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`Dated: November 14, 2022
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`By:
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`/s/ Stephen A. Swedlow
`Stephen A. Swedlow
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 14th day of November 2022, I electronically transmitted the
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`foregoing document to the Clerk’s Office using the CM/ECF System, causing the document to be
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`electronically served on all attorneys of record.
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`Dated: November 14, 2022
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`By:
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`/s/ Stephen A. Swedlow
`Stephen A. Swedlow
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