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  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
  • LEAH BALLEJOS vs DOES 1 THROUGH 100Complex Civil Unlimited document preview
						
                                

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1 William M. Audet (SBN 117456) waudet@audetlaw.com 2 Ling Y. Kuang (SBN 296873) lkuang@audetlaw.com 3 Kurt D. Kessler (SBN 327334) kkessler@audetlaw.com 1/14/2021 4 AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 5 San Francisco, CA 94102-3275 Telephone: (415) 568-2555 6 Facsimile: (415) 568-2556 7 Attorneys for Plaintiffs Leah Ballejos, Audrey Ellis, and Tameika Martin 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN MATEO 12 UNLIMITED JURISDICTION 13 LEAH BALLEJOS, AUDREY ELLIS, and Case No: 18-CIV-03607 14 TAMEIKA MARTIN, PLAINTIFFS’ CASE MANGEMENT 15 Plaintiffs, STATEMENT 16 v. -- COMPLEX CASE -- 17 Assigned For All Purposes To FACEBOOK, INC., a Delaware corporation, Hon. Gerald J. Buchwald, Dept. 10 18 and DOES 1 through 100, HEARING DATE: January 19, 2021 19 Defendants. HEARING TIME: 2:00PM 20 LOCATION: via Zoom Dept. 10, Courtroom 8D 21 Complaint Filed: July 11, 2018 22 23 24 25 26 27 28 0 18-CIV-03607 1 California citizens LEAH BALLEJOS, AUDREY ELLIS, and TAMEIKA MARTIN 2 (“Plaintiffs”) respectfully submit this Case Management Statement in advance of the Case 3 Management Conference (“CMC”) set for January 19, 2021 at 2:00 p.m. via Zoom. 4 Plaintiffs provided the substance of this statement, along with a draft Joint CMC Statement to 5 Defendant FACEBOOK, INC. (“Facebook”) on January 12, 2021, and further indicated Plaintiffs’ 6 intent to file the Statement by January 14, 2021 in light of the upcoming holiday weekend. Facebook 7 responded that it would not be in a position to join in a filing on January 14, 2021 and will instead file 8 a Statement on their own. Therefore in lieu of a Joint CMC Statement, Plaintiffs’ provide their 9 positions and case updates below: 10 I. Pending Issues 11 A number of pending issues remain, and the Plaintiffs summarize them below for the 12 convenience of the Court. 13 a. Demurrer 14 After the Court denied Facebook’s motion to stay the proceedings, along with several 15 additional Facebook attempts at an informal stay, and after the 1st District Court of Appeal summarily 16 rejected Facebook’s related petition for a peremptory writ of mandate, Facebook filed a Demurrer to 17 the Complaint in this matter on April 2, 2019. 18 The Court held multiple hearings on the Demurrer on June 20, 2019, July 9, 2019, and July 22, 19 2019 and previously indicated in a minute order its intention to overrule the demurrer without 20 prejudice (Minute Order, July 22, 2019). While awaiting a formal ruling, Facebook filed another writ 21 in the First District Court of Appeal on December 24, 2019 against the tentative Demurrer ruling, but 22 the Court of Appeal issued an order denying the petition without prejudice on January 14, 2020. 23 Plaintiffs believe a ruling on this issue would materially advance the litigation. 24 b. Motion for Judgment on the Pleadings and Motion for a Protective Order 25 On November 25, 2019, Facebook filed both a Motion for Judgment on the Pleadings and a 26 related Motion for a Protective Order, on the grounds that the relief requested by Plaintiffs overlapped 27 with a Federal Trade Commission (“FTC”) amended decree and stipulated order (“Stipulated Order”), 28 1 PLAINTIFFS’ CASE MANGEMENT STATEMENT 18-CIV-03607 1 based on the doctrines of abstention and the primary jurisdiction. The Court held two hearings on the 2 matter, on December 12, 2019 and most recently on March 6, 2020, when it invited supplemental filing 3 in the form of a list of cases on the subject of economic injury and standing under the UCL. The joint 4 list was filed on April 1, 2020. 5 Plaintiffs further re-emphasize that the relief between the FTC matter and the relief sought by 6 Ballejos have significant distinctions. See Exhibit A, attached hereto. These motions remain pending. 7 c. Confidentiality Protective Order and Electronic Discovery Protocol 8 The Court previously ordered the Parties to agree to a confidentiality protective order 9 (“Confidentiality Order”) and an electronic discovery protocol (“Electronic Discovery Protocol”) by 10 November 15, 2019, given the importance and prevalence of confidential electronic discovery in this 11 case. After a chambers’ conference and Court guidance, the Parties came to an agreement regarding the 12 Confidentiality Order and jointly submitted the stipulated Order. However, a single-issue impasse 13 remains however regarding the Electronic Discovery Protocol though. 14 Both Plaintiffs and Facebook filed statements with the court outlining their respective positions 15 with regards to this single-issue impasse, along with the relief sought by both Parties. Plaintiffs further 16 submitted a formal declaration by an electronic discovery specialist indicating that what Facebook 17 sought at the time was beyond the pale of industry norms and practices. Plaintiffs believe Court 18 guidance on this issue, similar to that provided for the Confidentiality Order, would resolve the 19 electronic discovery impasse quickly and allow discovery to proceed expeditiously. 20 d. Discovery 21 As indicated by the Court at the March 6, 2020 conference, discovery is stayed in this matter. 22 To date, no documents whatsoever have been produced in this case. Plaintiffs propose that upon 23 resolution of the Electronic Discovery Protocol issue, as indicated above, that the stay on discovery be 24 lifted and the following proposed general discovery schedule, or another similar schedule that the 25 Court prefers, be enacted. 26 27 28 2 PLAINTIFFS’ CASE MANAGEMENT STATEMENT 18-CIV-03607 1 Event Plaintiffs’ Proposed Deadline 2 Parties’ Responses to Written Discovery 60 days from date of service Requests 3 Substantial Completion of Document August 13, 2021 4 Production Expert Demand August 13, 2021 5 Expert Disclosures September 6, 2021 6 Supplemental Expert Disclosure October 1, 2021 7 Close of Fact Discovery October 15, 2021 Expert Depositions Prior to Close of Expert Discovery 8 Close of Expert Discovery November 19, 2021 9 10 11 Dated: January 14, 2021 Respectfully submitted, 12 13 s/ Ling Kuang William M. Audet (SBN 117456) 14 waudet@audetlaw.com 15 Ling Y. Kuang (SBN 296873) lkuang@audetlaw.com 16 Kurt D. Kessler (SBN 327334) kkessler@audetlaw.com 17 AUDET & PARTNERS, LLP 18 Attorneys for Plaintiffs Leah Ballejos, 19 Audrey Ellis, and Tameika Martin 20 21 22 23 24 25 26 27 28 3 PLAINTIFFS’ CASE MANAGEMENT STATEMENT 18-CIV-03607 Relief in FTC Settlement (“Stipulated Relief Sought by Ballejos Plaintiffs Order”) Plaintiffs’ Limit third-party apps’ access to data so they obtain only the minimum No limitation on data taken once users’ consent acquired. Relief 1 amount of data needed for any legitimate purposes and needs. (Compl. (Order at 5). 28:15-16) Plaintiffs’ A friend’s affirmative and knowing consent unnecessary: Relief 2 “[N]othing … will … require [Facebook] to obtain affirmative Prevent third-party apps from getting data regarding a user’s “friends” express consent for sharing of a [friend’s private information] unless that friend affirmatively and knowing consents to sharing with initiated by another User authorized to access such the third-party. (Compl. 28:17-18) information…Facebook reserves the right to update this policy based on “technological changes”. (Order at 5-6). Plaintiffs’ Allow and treat data as “private” by default, rather than forcing Relief 3 consumers to opt into onerous or modify complicated privacy settings – this will allow users to affirmatively consent to sharing data they don’t Not present in the Stipulated Order. mind being shared. (Compl. 28:19-20). Also implement “privacy by design,” requiring user privacy to be accounted for in every step of Facebook’s decision-making. (Compl. 28:21-22). Plaintiffs’ All data collected that no longer has a legitimate ongoing business Data only removed when a user affirmatively deletes it. No Relief 4 purpose shall be “ephemeral” (i.e., will expire), so that Facebook cannot automatic expiring of data and Facebook allowed to retain retain information indefinitely on inactive users or active users that no data for perpetuity. (Order at 6). longer recall what has been posted online. (Compl. 28:23-25). Plaintiffs’ Establish a hotline answered by a third-party compliance agent so Relief 5 employees, advertising partners, app developers, or any others who Not present in the Stipulated Order. suspect data is being misused can report it immediately and anonymously without fear of reprisal. (Compl. 28:26-28). Plaintiffs’ Using industry standards to track how and where user data goes (data Annual self-certification of third parties regarding data it Relief 6 requests; prior to implementing products, a privacy review inventories and flow mapping) so as to proactively identify potential occurs. (Order at 9). Does not identify continuous data misuse and/or unintended uses of data. (Compl. 29:1-4). monitoring or proactive procedures to prevent data abuse. Plaintiffs’ Only allow third-party apps which satisfy privacy best practices (verified Relief 7 by an independent source); akin to food safety inspector at an eatery. Not present in the Stipulated Order. (Compl. 29:5-6). Plaintiffs’ An “independent” assessor selected by Facebook and Submit to an annual audit by an independent third-party to ensure that Relief 8 managed by an “Independent” committee that includes Facebook is fully complying with these requirements. (Compl. 29:6-7). Facebook’s Board of Directors. (Order at 3, 9, 12, 15). Exhibit A 1 PROOF OF SERVICE 2 At the time of service I was over 18 years of age and not a party to this action. My business address is 711 Van Ness Avenue, Suite 500, San Francisco, California 94102-3275, my email address 3 is nperez@audetlaw.com, and on January 14, 2021, I served the following specifed document(s) set 4 forth below: 5 PLAINTIFF’S CASE MANAGEMENT STATEMENT 6 And I served said documents on the person(s) below: 7 Kristin A. Linsley (SBN 154148) 8 klinsley@gibsondunn.com Joshua S. Lipshutz (SBN 242557) 9 Katherine Warren Martin (SBN 307403) jlipshutz@gibsondunn.com kwarren@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 10 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. 555 Mission Street, Suite 3000 Washington, DC 20036-5306 11 San Francisco, CA 94105-0921 12 Martie Kutscher Clark (SBN 302650) Orin S. Snyder (pro hac vice) 13 mkutscherclark@gibsondunn.com osnyder@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP 14 1881 Page Mill Road 200 Park Avenue Palo Alto, CA 94304-1211 New York, NY 10166-0193 15 16 Attorneys for Defendant Facebook, Inc. 17 And the person(s) set forth above were served by the following means of service: 18 ☒ BY ELECTRONIC SERVICE. Pursuant to an agreement between all parties that 19 provides for the electronic service and distribution of documents under CCP § 1010.6, I 20 caused the documents to be sent to the parties and their respective counsel via the electronic addresses associated with all counsel that have appeared in this matter to date. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is 22 true and correct. 23 24 Date: January 14, 2021 Signature: _____________________________________ Nicholas Perez 25 26 27 28 2 PLAINTIFFS’ LIST OF AUTHORITIES REGARDING ECONOMIC INJURY PURSUANT TO COURT’S REQUEST 18-CIV-03607