Preview
1 COVINGTON & BURLING LLP
Ashley M. Simonsen, SBN 275203
2 1999 Avenue of the Stars
Los Angeles, CA 90067
3 Telephone: (424) 332-4800
Facsimile: (424) 332-4749
4 Email: asimonsen@cov.com
5 Attorneys for Defendants Meta Platforms, Inc.
f/k/a Facebook, Inc.; Facebook Holdings, LLC;
6 Facebook Operations, LLC; Facebook Payments,
7 Inc.; Facebook Technologies, LLC;
Instagram, LLC; and Siculus, Inc.
8
[Additional Counsel on Signature Page]
9
10
11
12
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF LOS ANGELES
15
16 COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION
TITLE [RULE 3.400] PROCEEDING NO. 5255
17
SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355
18
THIS DOCUMENT RELATES TO:
19 Judge: Hon. Carolyn B. Kuhl
SSC-12
ALL ACTIONS
20
DEFENDANTS’ RESPONSE TO COURT’S
21 (Christina Arlington Smith, et al., v. TikTok TENTATIVE RULING ON PLAINTIFFS’
Inc., et al., Case No. 22STCV21355) MOTION FOR ORDER GOVERNING
22 CSAM PRESERVATION
23 Date: July 27, 2023
Time: 11:00 a.m.
24 Dept.: SSC-12
25
26
27
28
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 At the June 27 hearing on Plaintiffs’ Motion for Order Governing Preservation of CSAM
2 (“Motion”), the Court tentatively ruled that Defendants must preserve the contents of all reports they make
3 to the National Center for Missing & Exploited Children (“NCMEC”), along with an identifier for the
4 reported user account if not included in the report. See June 27, 2023 Hr’g Tr. (“CSAM Hr’g Tr.”) 87:8–
5 14 (attached as Exhibit A to the Declaration of Ashley Simonsen (“Simonsen Decl.”)). The Court
6 tentatively ruled that Defendants need not preserve any other information related to CSAM not associated
7 with Plaintiffs’ or relevant bad-actors’ accounts (“non-Relevant CSAM”),1 because the burden would
8 outweigh any probative value of such information. Id. at 87:15–24. Although Defendants do not agree
9 that this information is probative, Defendants are prepared to submit to the Court’s tentative regarding
10 non-Relevant CSAM and to preserve the contents of NCMEC reports for all CSAM they report on their
11 services.
12 Plaintiffs, however, intend to object to the Court’s tentative ruling and would have Defendants
13 preserve a broad swath of additional information that has no bearing on the Plaintiff or bad actor accounts
14 at issue in this litigation. That would include unlimited geolocation and IP information for every user (not
15 just Plaintiffs) who has ever received (or, potentially, viewed) any of the millions of pieces of reported
16 CSAM on Defendants’ services; all “[c]ommunications showing grooming or solicitation of a minor that
17 led to sharing of [reported] CSAM” (again, not limited to Plaintiffs); and every user report regarding
18 reported CSAM on Defendants’ services.
19 Plaintiffs’ anticipated request should be denied. It would raise new arguments, would lack any
20 legal basis, and would impose an immense burden on Defendants that far outweighs any probative value,
21 impeding Defendants’ ability to promptly report all known CSAM to NCMEC. Plaintiffs’ request would
22 also pose significant privacy concerns for millions of users who have nothing to do with this litigation,
23
24
1
“Relevant CSAM” consists of CSAM “associated with” an individual “User” account on a “Defendant
25 Service.” See June 9, 2023 Defs.’ Proposed Order § VI. “User” means “any account user that is identified
in a Plaintiff User Account Preservation Form, or through the investigation of account-identifying
26
information contained in a Plaintiff User Account Preservation Form.” See id. § III. The Plaintiff User
27 Account Preservation Form, in turn, requires Plaintiffs to identify any account(s) they used to access
Defendants’ services and any accounts Plaintiffs allege engaged in specific user-directed misconduct. See
28 May 12, 2023 Submission of Agreed Plaintiff Preservation Form, Ex. A.
2
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 including CSAM victims. This Court should adopt the tentative and deny Plaintiffs’ anticipated request.
2 I. Background
3 Plaintiffs’ Motion asked this Court to order Defendants to “record and preserve all CSAM-related
4 information in their possession, custody or control,” including a detailed list of information for all reported
5 CSAM, not just CSAM related to Plaintiffs’ accounts or bad actor accounts Plaintiffs identify. See June
6 20, 2023 Plaintiffs’ Revised Proposed Order (“Pls.’ Proposed Order”) § IV(C).
7 In their Opposition and at the June 27 hearing, Defendants explained why they should be required
8 to preserve detailed information only about Relevant CSAM. See Opp. 20; CSAM Hr’g Tr. 66:8–15. The
9 Court agreed and issued a tentative ruling limiting Defendants’ preservation obligations with respect to
10 non-Relevant CSAM to the contents of NCMEC reports. CSAM Hr’g Tr. 87:6–24. Defendants agree to
11 preserve the contents of all NCMEC reports, which include detailed information about reported CSAM.
12 For the first time, on July 5, Plaintiffs informed Defendants that they intend to ask (in their July
13 19 brief) to preserve “additional information” relating to all reported CSAM—including information that
14 was not delineated in any past filings or meet and confers. See Simonsen Decl. ¶ 3 & Ex. B. Plaintiffs
15 also informed Defendants for the first time that they will “request to be notified if Defendants plan to
16 change policies related to the substance of NCMEC reports.” See id. Ex. B.
17 II. For Non-Relevant CSAM, Defendants Should Be Required to Preserve at Most the
Contents of NCMEC Reports.
18
Defendants’ preservation obligations with respect to non-Relevant CSAM should extend no further
19
than the contents of NCMEC reports, as this Court held in its tentative ruling. First, the burden of
20
preserving detailed information about all reported CSAM—including its impact on Defendants’ ability to
21
promptly report CSAM and on the privacy of victims of CSAM—far outweighs any probative value of
22
such information. Second, to the extent Plaintiffs would require Defendants to (a) create new information
23
for purposes of preservation or (b) notify Plaintiffs of changes in their NCMEC reporting practices, they
24
have shown no clearly established right to such relief—as they must to obtain a mandatory injunction.
25
A. The Burden of Preserving Detailed Information About All CSAM Reported on
26 Defendants’ Services Outweighs Any Probative Value of That Information.
27 Plaintiffs have failed to, and cannot, meet their burden to show the relevance of the detailed
28 information they seek to require Defendants to preserve for each of the millions of pieces of CSAM that
3
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
Defendants report to NCMEC every year. See Opp. at 12; Cal. Code Civ. Proc. § 526(a)(3).
2
As a preliminary matter, only four of the cases in the JCCP proceedings involve allegations that
3
CSAM was sent to or from a Plaintiff-minor’s account. See Opp. 10 n.4.2 For the vast majority of cases,
4
CSAM is simply not implicated by Plaintiffs’ allegations. Yet all Defendants have agreed (1) to preserve
5
extensive information for reported CSAM associated with all accounts identified on all Plaintiff User
6
Account Preservation Forms, and (2) with respect to all other accounts, to preserve the NCMEC reports
7
for all reported CSAM on their services, regardless of whether the report has any connection to Plaintiffs.
8
Defendants’ preservation obligations related to individual pieces of CSAM should end there.
9
Plaintiffs have argued they need detailed information about all CSAM Defendants report on their
10
services because it supposedly is relevant to “systemic problem[s]” or alleged design defects on
11
Defendants’ services. See Mot. 8; June 20, 2023 Plaintiffs’ Reply (“Reply”) 4; CSAM Hr’g Tr. 83:15,
12
68:15–17, 69:7–10. This argument fails.
13
To start, detailed information about every piece of CSAM detected and reported on Defendants’
14
services is not probative of Plaintiffs’ claims. Plaintiffs’ Master Complaint alleges two design defects
15
with respect to CSAM: (a) Defendants’ algorithms purportedly connect adult predators with minors on
16
their services, and (b) Defendants’ CSAM reporting is inadequate. See MC ¶¶ 137, 372, 381, 385, 499,
17
502, 669, 674, 677, 785; see also ¶¶ 371, 382–83, 388, 394, 396, 398–99, 499, 504–09, 679, 680, 789,
18
791–96, 801–02. The fact that a particular minor user may have communicated and exchanged CSAM
19
with an adult user on a Defendant’s service, the specific details related to the reported CSAM exchanged,
20
or the timing of the Defendant’s identification, reporting, and removal of the reported CSAM are not
21
probative of how the minor met the adult user (i.e., whether through an algorithm or other means). And
22
such information is not evidence that Defendants fail to report CSAM; it is evidence of the opposite.
23
Indeed, testing Plaintiffs’ claims does not require mass preservation of CSAM-related materials
24
from victims who bear no relationship to this case, but rather documents and information showing how
25
Defendants’ algorithms suggest or connect users; their policies, practices, and systems for detecting,
26
27
2
28 In none of these cases does the Plaintiff allege to have been the victim of CSAM posted to YouTube.
4
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
reporting, and removing CSAM; and aggregated data, such as the number of CSAM reports they make.
2
Defendants are taking reasonable and proportional steps to preserve that information, and have also agreed
3
to preserve the contents of all NCMEC reports, which contain detailed information about the reported
4
CSAM and which will give Plaintiffs information regarding the aggregate amount of CSAM reported. As
5
this Court reasoned at the hearing, “that should be sufficient” for Plaintiffs to prove “the extent of[] the
6
problem and … [Plaintiffs’] position that it’s a failed reporting system.” CSAM Hr’g Tr. 87:6–19. At a
7
minimum, and as this Court observed, “the burden of going through every account . . . with respect to
8
further details . . . is likely to be more burdensome than probative.” Id. at 87:20–24.
9
Even if Plaintiffs now seek an order requiring Defendants to preserve (for all reported CSAM)
10
only the “additional information” listed in their July 5 e-mail, that request should also be denied. Plaintiffs
11
forfeited this argument when they failed to move for preservation of this information in their Motion. See
12
Roberts v. Assurance Co. of Am., 163 Cal. App. 4th 1398, 1408 (2008). Plaintiffs’ new list goes far beyond
13
the information sought in their prior filings, including, for example, “[a]ll user reports of CSAM on the
14
product, as well as handling and resolution of that report”; “[c]ommunications showing grooming or
15
solicitation of a minor that led to sharing of CSAM reported to NCMEC”3; and “information and materials
16
relating to the internal investigation of CSAM.” Simonsen Decl. Ex. B; see United Grand Corp. v. Malibu
17
Hillbillies, LLC, 36 Cal. App. 5th 142, 158 (2019) (courts “will not ordinarily consider issues” raised in
18
reply that do “more than elaborate on issues raised in the opening brief or rebut arguments”).
19
But even if these arguments were not forfeited, Plaintiffs still fail to explain how the “additional
20
information” they seek is probative. Plaintiffs have asserted that this information “is necessary to prove
21
the deficiency of the reporting systems.” But the “additional information” Plaintiffs now request goes far
22
beyond reporting systems and extends to all communications related to CSAM or grooming, geolocation
23
and IP address information for every recipient of reported CSAM, and every single user report of CSAM,
24
“as well as handling and resolution of that report.” Plaintiffs offer no explanation for how such
25
voluminous and detailed information about every piece of reported CSAM, every recipient, and every user
26
27 3
YouTube does not offer a direct user-to-user messaging function and thus opposes Plaintiffs’
28 communication-related demands, which are inapplicable as to YouTube.
5
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
report on Defendants’ services is probative of a design defect. The information Defendants have agreed
2
to preserve is “sufficient” for that purpose, as this Court tentatively held. CSAM Hr’g Tr. 87:6–19.
3
Moreover, the burden of preserving this “additional information” for all reported CSAM would
4
vastly outweigh any probative value.4 Plaintiffs’ request would require Defendants to collect and preserve
5
vast quantities of information about users who have nothing to do with this litigation, raising substantial
6
privacy concerns. Defendants will address the burden of preserving whatever information Plaintiffs, in
7
fact, seek in their brief in Defendants’ reply brief and declarations Defendants intend to submit.
8
B. Plaintiffs Have No Clearly Established Rights to the Relief They Seek.
9 Insofar as Plaintiffs purport to require Defendants to create new information about all reported
10 CSAM and then preserve it, rather than simply preserve information they already record, Plaintiffs
11 demand a mandatory injunction to which they have no clearly established right. See Opp. 12.
12 Plaintiffs’ July 5 e-mail listing “additional information” contains no language cabining
13 preservation to information that Defendants already record in the ordinary course of business, potentially
14 requiring Defendants to create new fields of data or to re-program their systems. Plaintiffs have no clearly
15 established right to require Defendants to create new information for purposes of preservation; that goes
16 beyond the duty to preserve only information already in existence. See Opp. 13 & n.7; Williams v.
17 Romero, 2022 WL 2160651, at *3 (E.D. Cal. June 15, 2022) (“defendants are not required to create a new
18 document”). Plaintiffs have cited nothing to the contrary. See Reply 8 (citing cases requiring preservation
19 of already existing evidence). And contrary to Plaintiffs’ assertion, Defendants are not “destroying”
20 CSAM; they are deleting it from their systems—as required by federal law—after reporting it to NCMEC,
21
22 4
Plaintiffs have cited cases requiring the defendants in design defect cases to preserve “other similar
23 incidents” evidence, see Reply 5 & n.2, but those cases are inapplicable here. There is no dispute that
CSAM exists on Defendants’ services (as it does on the Internet generally); instead, Plaintiffs take issue
24 with Defendants’ practices for detecting and reporting CSAM. Accordingly, unlike in the cases Plaintiffs
cite, the existence of other CSAM on Defendants’ services or Defendants’ knowledge thereof is not
25
evidence of the “design defect” Plaintiffs allege. See, e.g., Lopez v. Watchtower Bible & Tract Soc’y of
26 N.Y., Inc., 246 Cal. App. 4th 566, 573, 592–93 (2016) (prior sexual abuse potentially relevant to defendant
organization’s knowledge); Hasson v. Ford Motor Co., 32 Cal. 3d 388, 403–05 (1982) (evidence of other
27 brake failures probative of the defendant’s knowledge a dangerous condition existed).
28
6
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
which Plaintiffs have indicated retains the CSAM indefinitely. See Opp. 13–14. Defendants could not
2
produce CSAM in discovery—and Plaintiffs’ counsel could not possess or review it—without violating
3
child pornography laws, rendering preservation of such information inconsequential. See Opp. 15–16; 18
4
U.S.C. §§ 2251, 2252, 2252A; Cal. Penal Code § 311 et seq. Simply put, Defendants’ deletion of reported
5
CSAM in accordance with governing laws does not deprive Plaintiffs of discoverable information.5
6
Plaintiffs have indicated that they will also seek a requirement that they be notified of any changes
7
in what Defendants report to NCMEC “so that Plaintiffs can seek relief if Defendants begin to scale back
8
(and thereby begin to destroy) information they report.” See Simonsen Decl. Ex. B. Again, this is a brand-
9
new request not previously raised, and should be rejected for that reason alone. See supra Part II.A.
10
It should also be rejected on the merits. Plaintiffs cite no authority showing they have a clearly
11
established right to such notice, particularly given the facts here. Defendants have already disclosed
12
detailed information to Plaintiffs about their reporting practices, see Opp. 8–10; Baker Decl. ¶¶ 3–7; Gatlin
13
Decl. ¶¶ 11–20; Jain Decl. ¶¶ 10–21; Sinha Decl. ¶¶ 6–12, and Plaintiffs provide no factual basis to believe
14
Defendants are going to alter them. Defendants have also agreed to periodic meet and confers to discuss
15
their CSAM preservation and reporting obligations, see Defs.’ Proposed Order § VII, and to continue
16
including Relevant CSAM in their NCMEC reports, see id. § IV. Plaintiffs have no right to continual
17
updates of any change in Defendants’ reporting practices, no matter how small—a requirement that would
18
impose an undue burden on Defendants, may require Defendants to reveal sensitive and potentially
19
privileged information, and would slow Defendants’ ability to update their systems to best combat CSAM.
20
III. Conclusion
21
The Court should adopt its tentative ruling and reject Plaintiffs’ anticipated request that Defendants
22
preserve any “additional information” for all reported CSAM.
23
24
5
Plaintiffs’ Case Anywhere submission suggests that Plaintiffs may challenge whether TikTok must
25 create an A1-B2 classification for all CSAM, though Plaintiffs do not include that in their July 5 proposal.
That challenge should fail. As this Court observed, “knowing that it is suspected CSAM is probably
26
enough for [Plaintiffs’] purposes I think as opposed to where it fits on the A-1 to B-2.” CSAM Hr’g Tr.
27 91:15–18. And Plaintiffs have not (and cannot) show that they have a clearly established right to require
TikTok to create new evidence that it does not keep in the ordinary course of business. Moreover, they
28 have submitted no evidence to rebut the burden arguments raised by TikTok. See generally Gatlin Decl.
7
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
DATED: July 10, 2023 COVINGTON & BURLING LLP
2
3
4 By: /s/ Ashley M. Simonsen
Ashley M. Simonsen
5
COVINGTON & BURLING LLP
6
ASHLEY M. SIMONSEN, SBN 275203
7 asimonsen@cov.com
1999 Avenue of the Stars
8 Los Angeles, CA 90067
Tel.: 424-332-4800
9 Facsimile: (424) 332-4749
10
COVINGTON & BURLING LLP
11 EMILY JOHNSON HENN, SBN 269482
ehenn@cov.com
12 3000 El Camino Real
5 Palo Alto Square, 10th Floor
13 Palo Alto, CA 94306
14 Tel.: 650-632-4700
15 COVINGTON & BURLING LLP
PHYLLIS A. JONES, pro hac vice
16 pajones@cov.com
PAUL W. SCHMIDT, pro hac vice pending
17 pschmidt@cov.com
18 MICHAEL X. IMBROSCIO, pro hac vice
forthcoming
19 mimbroscio@cov.com
One City Center
20 850 Tenth Street, NW
Washington, DC 20001-4956
21 Tel.: 202-662-6000
22
Attorneys for Defendants Meta Platforms, Inc.
23 f/k/a Facebook, Inc.; Facebook Holdings, LLC;
Facebook Operations, LLC; Facebook Payments,
24 Inc.; Facebook Technologies, LLC;
Instagram, LLC; and Siculus, Inc.
25
26
27
28
8
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 DATED: July 10, 2023 MUNGER, TOLLES & OLSON LLP
2
3
By: /s/ Jonathan H. Blavin
4 Jonathan H. Blavin
5 MUNGER, TOLLES & OLSON LLP
JONATHAN H. BLAVIN, SBN 230269
6
jonathan.blavin@mto.com
7 560 Mission Street, 27th Floor
San Francisco, CA 94105-3089
8 Tel.: 415-512-4000
9 MUNGER, TOLLES & OLSON LLP
ROSE L. EHLER, SBN 29652
10
Rose.Ehler@mto.com
11 VICTORIA A. DEGTYAREVA, SBN 284199
Victoria.Degtyareva@mto.com
12 ARIEL T. TESHUVA, SBN 324238
Ariel.Teshuva@mto.com
13 350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071-3426
14
Tel.: 213-683-9100
15
MUNGER, TOLLES & OLSON LLP
16 LAUREN A. BELL, pro hac vice
forthcoming
17 Lauren.Bell@mto.com
18 601 Massachusetts Ave., NW St.
Suite 500 E
19 Washington, D.C. 20001-5369
Tel.: 202-220-1100
20
Attorneys for Defendant Snap Inc.
21
22
23
24
25
26
27
28
9
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 DATED: July 10, 2023 KING & SPALDING LLP
2
3
By: /s/ Matthew J. Blaschke
4 Matthew J. Blaschke
5 KING & SPALDING LLP
MATTHEW J. BLASCHKE, SBN 281938
6
mblaschke@kslaw.com
7 BAILEY J. LANGNER, SBN 307753
blangner@kslaw.com
8 50 California Street, Suite 3300
San Francisco, CA 9411l
9 Tel.: 415-318-1200
10
KING & SPALDING LLP
11 ALBERT Q. GIANG, SBN 224332
agiang@kslaw.com
12 633 West Fifth Street, Suite 1600
Los Angeles, CA 90071
13 Tel.: 213-443-4310
14
KING & SPALDING LLP
15 GEOFFREY DRAKE, pro hac vice
pending
16 gdrake@kslaw.com
1180 Peachtree Street, NE, Suite 1600
17 Atlanta, GA 30309
18 Tel.: 404-572-4600
19
DATED: July 10, 2023 FAEGRE DRINKER BIDDLE & REATH LLP
20
21
By: /s/ Tarifa B. Laddon
22
Tarifa B. Laddon
23
FAEGRE DRINKER BIDDLE
24 & REATH LLP
TARIFA B. LADDON, SBN 240419
25 tarifa.laddon@faegredrinker.com
26 DAVID P. KOLLER, SBN 328633
david.koller@faegredrinker.com
27 1800 Century Park East, Suite 1500
Los Angeles, CA 90067
28 Tel.: 310-203-4000
10
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1
FAEGRE DRINKER BIDDLE
2 & REATH LLP
3 ANDREA R. PIERSON, pro hac vice
pending
4 andrea.pierson@faegredrinker.com
300 N. Meridian Street, Suite 2500
5 Indianapolis, IN 46204
Tel: 317-237-1424
6
7 Attorneys for Defendants TikTok Inc. and ByteDance
Inc.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 DATED: July 10, 2023 WILSON SONSINI GOODRICH & ROSATI LLP
2
3
By: /s/ Christopher C. Chiou
4 Christopher C. Chiou
5 WILSON SONSINI GOODRICH & ROSATI
LLP
6
CHRISTOPHER C. CHIOU, SBN
7 233587
cchiou@wsgr.com
8 SAMANTHA MACHOCK, SBN 298852
smachock@wsgr.com
9 633 W 5th St, Ste. 1550
Los Angeles, CA 90071-3543
10
Tel.: 323-210-2900
11
WILSON SONSINI GOODRICH & ROSATI
12 LLP
LAUREN WHITE, SBN 309075
13 lwhite@wsgr.com
One Market Plaza, Spear Tower, Suite 3300
14
San Francisco, CA 94105
15 Tel.: 415-947-2000
16 WILSON SONSINI GOODRICH & ROSATI
LLP
17 BRIAN M. WILLEN, pro hac vice
18 forthcoming
bwillen@wsgr.com
19 1301 Avenue of the Americas, 40th Floor
New York, New York 10019
20 Tel.: 212-999-5800
21 Attorneys for Defendants YouTube, LLC, Google
22 LLC, Alphabet Inc.
23
24
25
26
27
28
12
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 DATED: July 10, 2023 WILLIAMS & CONNOLLY LLP
2
3
By: /s/ Joseph G. Petrosinelli
4 Joseph G. Petrosinelli
5 WILLIAMS & CONNOLLY LLP
JOSEPH G. PETROSINELLI, pro hac vice
6
application forthcoming
7 jpetrosinelli@wc.com
ASHLEY W. HARDIN, pro hac vice application
8 forthcoming
ahardin@wc.com
9 680 Maine Avenue, SW
Washington, DC 20024
10
Tel.: (202) 434-5000
11
Attorneys for Defendants YouTube, LLC, Google
12 LLC, Alphabet Inc.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
DEFENDANTS’ RESPONSE TO
COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER
1 CERTIFICATE OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this action. I am
3
employed in the County of Los Angeles, State of California. My business address is Covington &
4 Burling LLP, 1999 Avenue of the Stars, Los Angeles, CA 90067.
5 On July 10, 2023, I served true copies of the following document(s) described as
DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING ON PLAINTIFFS’
6 MOTION FOR ORDER GOVERNING CSAM PRESERVATION; DECLARATION OF
ASHLEY M. SIMONSEN IN SUPPORT OF DEFENDANTS’ RESPONSE TO COURT’S
7
TENTATIVE RULING ON PLAINTIFFS’ MOTION FOR ORDER GOVERNING
8 CSAM PRESERVATION on the interested parties in this action pursuant to the most recent
Master Service List as follows:
9
10 BY ELECTRONIC SERVICE VIA CASE ANYWHERE: In accordance with the
11 Court’s Order Authorizing Electronic Service requiring all documents to be served upon interested
parties via the Case Anywhere System.
12
Executed on July 10, 2023, at Los Angeles, California.
13
14
15 Denis Listengourt
16
17
18
19
20
21
22
23
24
25
26
27
28
1
Preview
1 COVINGTON & BURLING LLP Ashley M. Simonsen, SBN 275203 2 1999 Avenue of the Stars Los Angeles, CA 90067 3 Telephone: (424) 332-4800 Facsimile: (424) 332-4749 4 Email: asimonsen@cov.com 5 Attorneys for Defendants Meta Platforms, Inc. f/k/a Facebook, Inc.; Facebook Holdings, LLC; 6 Facebook Operations, LLC; Facebook Payments, 7 Inc.; Facebook Technologies, LLC; Instagram, LLC; and Siculus, Inc. 8 [Additional Counsel on Signature Page] 9 10 11 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF LOS ANGELES 15 16 COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION TITLE [RULE 3.400] PROCEEDING NO. 5255 17 SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355 18 THIS DOCUMENT RELATES TO: 19 Judge: Hon. Carolyn B. Kuhl SSC-12 ALL ACTIONS 20 DEFENDANTS’ RESPONSE TO COURT’S 21 (Christina Arlington Smith, et al., v. TikTok TENTATIVE RULING ON PLAINTIFFS’ Inc., et al., Case No. 22STCV21355) MOTION FOR ORDER GOVERNING 22 CSAM PRESERVATION 23 Date: July 27, 2023 Time: 11:00 a.m. 24 Dept.: SSC-12 25 26 27 28 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 At the June 27 hearing on Plaintiffs’ Motion for Order Governing Preservation of CSAM 2 (“Motion”), the Court tentatively ruled that Defendants must preserve the contents of all reports they make 3 to the National Center for Missing & Exploited Children (“NCMEC”), along with an identifier for the 4 reported user account if not included in the report. See June 27, 2023 Hr’g Tr. (“CSAM Hr’g Tr.”) 87:8– 5 14 (attached as Exhibit A to the Declaration of Ashley Simonsen (“Simonsen Decl.”)). The Court 6 tentatively ruled that Defendants need not preserve any other information related to CSAM not associated 7 with Plaintiffs’ or relevant bad-actors’ accounts (“non-Relevant CSAM”),1 because the burden would 8 outweigh any probative value of such information. Id. at 87:15–24. Although Defendants do not agree 9 that this information is probative, Defendants are prepared to submit to the Court’s tentative regarding 10 non-Relevant CSAM and to preserve the contents of NCMEC reports for all CSAM they report on their 11 services. 12 Plaintiffs, however, intend to object to the Court’s tentative ruling and would have Defendants 13 preserve a broad swath of additional information that has no bearing on the Plaintiff or bad actor accounts 14 at issue in this litigation. That would include unlimited geolocation and IP information for every user (not 15 just Plaintiffs) who has ever received (or, potentially, viewed) any of the millions of pieces of reported 16 CSAM on Defendants’ services; all “[c]ommunications showing grooming or solicitation of a minor that 17 led to sharing of [reported] CSAM” (again, not limited to Plaintiffs); and every user report regarding 18 reported CSAM on Defendants’ services. 19 Plaintiffs’ anticipated request should be denied. It would raise new arguments, would lack any 20 legal basis, and would impose an immense burden on Defendants that far outweighs any probative value, 21 impeding Defendants’ ability to promptly report all known CSAM to NCMEC. Plaintiffs’ request would 22 also pose significant privacy concerns for millions of users who have nothing to do with this litigation, 23 24 1 “Relevant CSAM” consists of CSAM “associated with” an individual “User” account on a “Defendant 25 Service.” See June 9, 2023 Defs.’ Proposed Order § VI. “User” means “any account user that is identified in a Plaintiff User Account Preservation Form, or through the investigation of account-identifying 26 information contained in a Plaintiff User Account Preservation Form.” See id. § III. The Plaintiff User 27 Account Preservation Form, in turn, requires Plaintiffs to identify any account(s) they used to access Defendants’ services and any accounts Plaintiffs allege engaged in specific user-directed misconduct. See 28 May 12, 2023 Submission of Agreed Plaintiff Preservation Form, Ex. A. 2 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 including CSAM victims. This Court should adopt the tentative and deny Plaintiffs’ anticipated request. 2 I. Background 3 Plaintiffs’ Motion asked this Court to order Defendants to “record and preserve all CSAM-related 4 information in their possession, custody or control,” including a detailed list of information for all reported 5 CSAM, not just CSAM related to Plaintiffs’ accounts or bad actor accounts Plaintiffs identify. See June 6 20, 2023 Plaintiffs’ Revised Proposed Order (“Pls.’ Proposed Order”) § IV(C). 7 In their Opposition and at the June 27 hearing, Defendants explained why they should be required 8 to preserve detailed information only about Relevant CSAM. See Opp. 20; CSAM Hr’g Tr. 66:8–15. The 9 Court agreed and issued a tentative ruling limiting Defendants’ preservation obligations with respect to 10 non-Relevant CSAM to the contents of NCMEC reports. CSAM Hr’g Tr. 87:6–24. Defendants agree to 11 preserve the contents of all NCMEC reports, which include detailed information about reported CSAM. 12 For the first time, on July 5, Plaintiffs informed Defendants that they intend to ask (in their July 13 19 brief) to preserve “additional information” relating to all reported CSAM—including information that 14 was not delineated in any past filings or meet and confers. See Simonsen Decl. ¶ 3 & Ex. B. Plaintiffs 15 also informed Defendants for the first time that they will “request to be notified if Defendants plan to 16 change policies related to the substance of NCMEC reports.” See id. Ex. B. 17 II. For Non-Relevant CSAM, Defendants Should Be Required to Preserve at Most the Contents of NCMEC Reports. 18 Defendants’ preservation obligations with respect to non-Relevant CSAM should extend no further 19 than the contents of NCMEC reports, as this Court held in its tentative ruling. First, the burden of 20 preserving detailed information about all reported CSAM—including its impact on Defendants’ ability to 21 promptly report CSAM and on the privacy of victims of CSAM—far outweighs any probative value of 22 such information. Second, to the extent Plaintiffs would require Defendants to (a) create new information 23 for purposes of preservation or (b) notify Plaintiffs of changes in their NCMEC reporting practices, they 24 have shown no clearly established right to such relief—as they must to obtain a mandatory injunction. 25 A. The Burden of Preserving Detailed Information About All CSAM Reported on 26 Defendants’ Services Outweighs Any Probative Value of That Information. 27 Plaintiffs have failed to, and cannot, meet their burden to show the relevance of the detailed 28 information they seek to require Defendants to preserve for each of the millions of pieces of CSAM that 3 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 Defendants report to NCMEC every year. See Opp. at 12; Cal. Code Civ. Proc. § 526(a)(3). 2 As a preliminary matter, only four of the cases in the JCCP proceedings involve allegations that 3 CSAM was sent to or from a Plaintiff-minor’s account. See Opp. 10 n.4.2 For the vast majority of cases, 4 CSAM is simply not implicated by Plaintiffs’ allegations. Yet all Defendants have agreed (1) to preserve 5 extensive information for reported CSAM associated with all accounts identified on all Plaintiff User 6 Account Preservation Forms, and (2) with respect to all other accounts, to preserve the NCMEC reports 7 for all reported CSAM on their services, regardless of whether the report has any connection to Plaintiffs. 8 Defendants’ preservation obligations related to individual pieces of CSAM should end there. 9 Plaintiffs have argued they need detailed information about all CSAM Defendants report on their 10 services because it supposedly is relevant to “systemic problem[s]” or alleged design defects on 11 Defendants’ services. See Mot. 8; June 20, 2023 Plaintiffs’ Reply (“Reply”) 4; CSAM Hr’g Tr. 83:15, 12 68:15–17, 69:7–10. This argument fails. 13 To start, detailed information about every piece of CSAM detected and reported on Defendants’ 14 services is not probative of Plaintiffs’ claims. Plaintiffs’ Master Complaint alleges two design defects 15 with respect to CSAM: (a) Defendants’ algorithms purportedly connect adult predators with minors on 16 their services, and (b) Defendants’ CSAM reporting is inadequate. See MC ¶¶ 137, 372, 381, 385, 499, 17 502, 669, 674, 677, 785; see also ¶¶ 371, 382–83, 388, 394, 396, 398–99, 499, 504–09, 679, 680, 789, 18 791–96, 801–02. The fact that a particular minor user may have communicated and exchanged CSAM 19 with an adult user on a Defendant’s service, the specific details related to the reported CSAM exchanged, 20 or the timing of the Defendant’s identification, reporting, and removal of the reported CSAM are not 21 probative of how the minor met the adult user (i.e., whether through an algorithm or other means). And 22 such information is not evidence that Defendants fail to report CSAM; it is evidence of the opposite. 23 Indeed, testing Plaintiffs’ claims does not require mass preservation of CSAM-related materials 24 from victims who bear no relationship to this case, but rather documents and information showing how 25 Defendants’ algorithms suggest or connect users; their policies, practices, and systems for detecting, 26 27 2 28 In none of these cases does the Plaintiff allege to have been the victim of CSAM posted to YouTube. 4 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 reporting, and removing CSAM; and aggregated data, such as the number of CSAM reports they make. 2 Defendants are taking reasonable and proportional steps to preserve that information, and have also agreed 3 to preserve the contents of all NCMEC reports, which contain detailed information about the reported 4 CSAM and which will give Plaintiffs information regarding the aggregate amount of CSAM reported. As 5 this Court reasoned at the hearing, “that should be sufficient” for Plaintiffs to prove “the extent of[] the 6 problem and … [Plaintiffs’] position that it’s a failed reporting system.” CSAM Hr’g Tr. 87:6–19. At a 7 minimum, and as this Court observed, “the burden of going through every account . . . with respect to 8 further details . . . is likely to be more burdensome than probative.” Id. at 87:20–24. 9 Even if Plaintiffs now seek an order requiring Defendants to preserve (for all reported CSAM) 10 only the “additional information” listed in their July 5 e-mail, that request should also be denied. Plaintiffs 11 forfeited this argument when they failed to move for preservation of this information in their Motion. See 12 Roberts v. Assurance Co. of Am., 163 Cal. App. 4th 1398, 1408 (2008). Plaintiffs’ new list goes far beyond 13 the information sought in their prior filings, including, for example, “[a]ll user reports of CSAM on the 14 product, as well as handling and resolution of that report”; “[c]ommunications showing grooming or 15 solicitation of a minor that led to sharing of CSAM reported to NCMEC”3; and “information and materials 16 relating to the internal investigation of CSAM.” Simonsen Decl. Ex. B; see United Grand Corp. v. Malibu 17 Hillbillies, LLC, 36 Cal. App. 5th 142, 158 (2019) (courts “will not ordinarily consider issues” raised in 18 reply that do “more than elaborate on issues raised in the opening brief or rebut arguments”). 19 But even if these arguments were not forfeited, Plaintiffs still fail to explain how the “additional 20 information” they seek is probative. Plaintiffs have asserted that this information “is necessary to prove 21 the deficiency of the reporting systems.” But the “additional information” Plaintiffs now request goes far 22 beyond reporting systems and extends to all communications related to CSAM or grooming, geolocation 23 and IP address information for every recipient of reported CSAM, and every single user report of CSAM, 24 “as well as handling and resolution of that report.” Plaintiffs offer no explanation for how such 25 voluminous and detailed information about every piece of reported CSAM, every recipient, and every user 26 27 3 YouTube does not offer a direct user-to-user messaging function and thus opposes Plaintiffs’ 28 communication-related demands, which are inapplicable as to YouTube. 5 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 report on Defendants’ services is probative of a design defect. The information Defendants have agreed 2 to preserve is “sufficient” for that purpose, as this Court tentatively held. CSAM Hr’g Tr. 87:6–19. 3 Moreover, the burden of preserving this “additional information” for all reported CSAM would 4 vastly outweigh any probative value.4 Plaintiffs’ request would require Defendants to collect and preserve 5 vast quantities of information about users who have nothing to do with this litigation, raising substantial 6 privacy concerns. Defendants will address the burden of preserving whatever information Plaintiffs, in 7 fact, seek in their brief in Defendants’ reply brief and declarations Defendants intend to submit. 8 B. Plaintiffs Have No Clearly Established Rights to the Relief They Seek. 9 Insofar as Plaintiffs purport to require Defendants to create new information about all reported 10 CSAM and then preserve it, rather than simply preserve information they already record, Plaintiffs 11 demand a mandatory injunction to which they have no clearly established right. See Opp. 12. 12 Plaintiffs’ July 5 e-mail listing “additional information” contains no language cabining 13 preservation to information that Defendants already record in the ordinary course of business, potentially 14 requiring Defendants to create new fields of data or to re-program their systems. Plaintiffs have no clearly 15 established right to require Defendants to create new information for purposes of preservation; that goes 16 beyond the duty to preserve only information already in existence. See Opp. 13 & n.7; Williams v. 17 Romero, 2022 WL 2160651, at *3 (E.D. Cal. June 15, 2022) (“defendants are not required to create a new 18 document”). Plaintiffs have cited nothing to the contrary. See Reply 8 (citing cases requiring preservation 19 of already existing evidence). And contrary to Plaintiffs’ assertion, Defendants are not “destroying” 20 CSAM; they are deleting it from their systems—as required by federal law—after reporting it to NCMEC, 21 22 4 Plaintiffs have cited cases requiring the defendants in design defect cases to preserve “other similar 23 incidents” evidence, see Reply 5 & n.2, but those cases are inapplicable here. There is no dispute that CSAM exists on Defendants’ services (as it does on the Internet generally); instead, Plaintiffs take issue 24 with Defendants’ practices for detecting and reporting CSAM. Accordingly, unlike in the cases Plaintiffs cite, the existence of other CSAM on Defendants’ services or Defendants’ knowledge thereof is not 25 evidence of the “design defect” Plaintiffs allege. See, e.g., Lopez v. Watchtower Bible & Tract Soc’y of 26 N.Y., Inc., 246 Cal. App. 4th 566, 573, 592–93 (2016) (prior sexual abuse potentially relevant to defendant organization’s knowledge); Hasson v. Ford Motor Co., 32 Cal. 3d 388, 403–05 (1982) (evidence of other 27 brake failures probative of the defendant’s knowledge a dangerous condition existed). 28 6 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 which Plaintiffs have indicated retains the CSAM indefinitely. See Opp. 13–14. Defendants could not 2 produce CSAM in discovery—and Plaintiffs’ counsel could not possess or review it—without violating 3 child pornography laws, rendering preservation of such information inconsequential. See Opp. 15–16; 18 4 U.S.C. §§ 2251, 2252, 2252A; Cal. Penal Code § 311 et seq. Simply put, Defendants’ deletion of reported 5 CSAM in accordance with governing laws does not deprive Plaintiffs of discoverable information.5 6 Plaintiffs have indicated that they will also seek a requirement that they be notified of any changes 7 in what Defendants report to NCMEC “so that Plaintiffs can seek relief if Defendants begin to scale back 8 (and thereby begin to destroy) information they report.” See Simonsen Decl. Ex. B. Again, this is a brand- 9 new request not previously raised, and should be rejected for that reason alone. See supra Part II.A. 10 It should also be rejected on the merits. Plaintiffs cite no authority showing they have a clearly 11 established right to such notice, particularly given the facts here. Defendants have already disclosed 12 detailed information to Plaintiffs about their reporting practices, see Opp. 8–10; Baker Decl. ¶¶ 3–7; Gatlin 13 Decl. ¶¶ 11–20; Jain Decl. ¶¶ 10–21; Sinha Decl. ¶¶ 6–12, and Plaintiffs provide no factual basis to believe 14 Defendants are going to alter them. Defendants have also agreed to periodic meet and confers to discuss 15 their CSAM preservation and reporting obligations, see Defs.’ Proposed Order § VII, and to continue 16 including Relevant CSAM in their NCMEC reports, see id. § IV. Plaintiffs have no right to continual 17 updates of any change in Defendants’ reporting practices, no matter how small—a requirement that would 18 impose an undue burden on Defendants, may require Defendants to reveal sensitive and potentially 19 privileged information, and would slow Defendants’ ability to update their systems to best combat CSAM. 20 III. Conclusion 21 The Court should adopt its tentative ruling and reject Plaintiffs’ anticipated request that Defendants 22 preserve any “additional information” for all reported CSAM. 23 24 5 Plaintiffs’ Case Anywhere submission suggests that Plaintiffs may challenge whether TikTok must 25 create an A1-B2 classification for all CSAM, though Plaintiffs do not include that in their July 5 proposal. That challenge should fail. As this Court observed, “knowing that it is suspected CSAM is probably 26 enough for [Plaintiffs’] purposes I think as opposed to where it fits on the A-1 to B-2.” CSAM Hr’g Tr. 27 91:15–18. And Plaintiffs have not (and cannot) show that they have a clearly established right to require TikTok to create new evidence that it does not keep in the ordinary course of business. Moreover, they 28 have submitted no evidence to rebut the burden arguments raised by TikTok. See generally Gatlin Decl. 7 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 DATED: July 10, 2023 COVINGTON & BURLING LLP 2 3 4 By: /s/ Ashley M. Simonsen Ashley M. Simonsen 5 COVINGTON & BURLING LLP 6 ASHLEY M. SIMONSEN, SBN 275203 7 asimonsen@cov.com 1999 Avenue of the Stars 8 Los Angeles, CA 90067 Tel.: 424-332-4800 9 Facsimile: (424) 332-4749 10 COVINGTON & BURLING LLP 11 EMILY JOHNSON HENN, SBN 269482 ehenn@cov.com 12 3000 El Camino Real 5 Palo Alto Square, 10th Floor 13 Palo Alto, CA 94306 14 Tel.: 650-632-4700 15 COVINGTON & BURLING LLP PHYLLIS A. JONES, pro hac vice 16 pajones@cov.com PAUL W. SCHMIDT, pro hac vice pending 17 pschmidt@cov.com 18 MICHAEL X. IMBROSCIO, pro hac vice forthcoming 19 mimbroscio@cov.com One City Center 20 850 Tenth Street, NW Washington, DC 20001-4956 21 Tel.: 202-662-6000 22 Attorneys for Defendants Meta Platforms, Inc. 23 f/k/a Facebook, Inc.; Facebook Holdings, LLC; Facebook Operations, LLC; Facebook Payments, 24 Inc.; Facebook Technologies, LLC; Instagram, LLC; and Siculus, Inc. 25 26 27 28 8 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 DATED: July 10, 2023 MUNGER, TOLLES & OLSON LLP 2 3 By: /s/ Jonathan H. Blavin 4 Jonathan H. Blavin 5 MUNGER, TOLLES & OLSON LLP JONATHAN H. BLAVIN, SBN 230269 6 jonathan.blavin@mto.com 7 560 Mission Street, 27th Floor San Francisco, CA 94105-3089 8 Tel.: 415-512-4000 9 MUNGER, TOLLES & OLSON LLP ROSE L. EHLER, SBN 29652 10 Rose.Ehler@mto.com 11 VICTORIA A. DEGTYAREVA, SBN 284199 Victoria.Degtyareva@mto.com 12 ARIEL T. TESHUVA, SBN 324238 Ariel.Teshuva@mto.com 13 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071-3426 14 Tel.: 213-683-9100 15 MUNGER, TOLLES & OLSON LLP 16 LAUREN A. BELL, pro hac vice forthcoming 17 Lauren.Bell@mto.com 18 601 Massachusetts Ave., NW St. Suite 500 E 19 Washington, D.C. 20001-5369 Tel.: 202-220-1100 20 Attorneys for Defendant Snap Inc. 21 22 23 24 25 26 27 28 9 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 DATED: July 10, 2023 KING & SPALDING LLP 2 3 By: /s/ Matthew J. Blaschke 4 Matthew J. Blaschke 5 KING & SPALDING LLP MATTHEW J. BLASCHKE, SBN 281938 6 mblaschke@kslaw.com 7 BAILEY J. LANGNER, SBN 307753 blangner@kslaw.com 8 50 California Street, Suite 3300 San Francisco, CA 9411l 9 Tel.: 415-318-1200 10 KING & SPALDING LLP 11 ALBERT Q. GIANG, SBN 224332 agiang@kslaw.com 12 633 West Fifth Street, Suite 1600 Los Angeles, CA 90071 13 Tel.: 213-443-4310 14 KING & SPALDING LLP 15 GEOFFREY DRAKE, pro hac vice pending 16 gdrake@kslaw.com 1180 Peachtree Street, NE, Suite 1600 17 Atlanta, GA 30309 18 Tel.: 404-572-4600 19 DATED: July 10, 2023 FAEGRE DRINKER BIDDLE & REATH LLP 20 21 By: /s/ Tarifa B. Laddon 22 Tarifa B. Laddon 23 FAEGRE DRINKER BIDDLE 24 & REATH LLP TARIFA B. LADDON, SBN 240419 25 tarifa.laddon@faegredrinker.com 26 DAVID P. KOLLER, SBN 328633 david.koller@faegredrinker.com 27 1800 Century Park East, Suite 1500 Los Angeles, CA 90067 28 Tel.: 310-203-4000 10 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 FAEGRE DRINKER BIDDLE 2 & REATH LLP 3 ANDREA R. PIERSON, pro hac vice pending 4 andrea.pierson@faegredrinker.com 300 N. Meridian Street, Suite 2500 5 Indianapolis, IN 46204 Tel: 317-237-1424 6 7 Attorneys for Defendants TikTok Inc. and ByteDance Inc. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 DATED: July 10, 2023 WILSON SONSINI GOODRICH & ROSATI LLP 2 3 By: /s/ Christopher C. Chiou 4 Christopher C. Chiou 5 WILSON SONSINI GOODRICH & ROSATI LLP 6 CHRISTOPHER C. CHIOU, SBN 7 233587 cchiou@wsgr.com 8 SAMANTHA MACHOCK, SBN 298852 smachock@wsgr.com 9 633 W 5th St, Ste. 1550 Los Angeles, CA 90071-3543 10 Tel.: 323-210-2900 11 WILSON SONSINI GOODRICH & ROSATI 12 LLP LAUREN WHITE, SBN 309075 13 lwhite@wsgr.com One Market Plaza, Spear Tower, Suite 3300 14 San Francisco, CA 94105 15 Tel.: 415-947-2000 16 WILSON SONSINI GOODRICH & ROSATI LLP 17 BRIAN M. WILLEN, pro hac vice 18 forthcoming bwillen@wsgr.com 19 1301 Avenue of the Americas, 40th Floor New York, New York 10019 20 Tel.: 212-999-5800 21 Attorneys for Defendants YouTube, LLC, Google 22 LLC, Alphabet Inc. 23 24 25 26 27 28 12 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 DATED: July 10, 2023 WILLIAMS & CONNOLLY LLP 2 3 By: /s/ Joseph G. Petrosinelli 4 Joseph G. Petrosinelli 5 WILLIAMS & CONNOLLY LLP JOSEPH G. PETROSINELLI, pro hac vice 6 application forthcoming 7 jpetrosinelli@wc.com ASHLEY W. HARDIN, pro hac vice application 8 forthcoming ahardin@wc.com 9 680 Maine Avenue, SW Washington, DC 20024 10 Tel.: (202) 434-5000 11 Attorneys for Defendants YouTube, LLC, Google 12 LLC, Alphabet Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING RE: CSAM PRESERVATION ORDER 1 CERTIFICATE OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am 3 employed in the County of Los Angeles, State of California. My business address is Covington & 4 Burling LLP, 1999 Avenue of the Stars, Los Angeles, CA 90067. 5 On July 10, 2023, I served true copies of the following document(s) described as DEFENDANTS’ RESPONSE TO COURT’S TENTATIVE RULING ON PLAINTIFFS’ 6 MOTION FOR ORDER GOVERNING CSAM PRESERVATION; DECLARATION OF ASHLEY M. SIMONSEN IN SUPPORT OF DEFENDANTS’ RESPONSE TO COURT’S 7 TENTATIVE RULING ON PLAINTIFFS’ MOTION FOR ORDER GOVERNING 8 CSAM PRESERVATION on the interested parties in this action pursuant to the most recent Master Service List as follows: 9 10 BY ELECTRONIC SERVICE VIA CASE ANYWHERE: In accordance with the 11 Court’s Order Authorizing Electronic Service requiring all documents to be served upon interested parties via the Case Anywhere System. 12 Executed on July 10, 2023, at Los Angeles, California. 13 14 15 Denis Listengourt 16 17 18 19 20 21 22 23 24 25 26 27 28 1