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Kadrey v. Meta Platforms, Inc.

2024 WL 4650508 (N.D. Cal. 2024)

November 1, 2024

Hixson, Thomas S., United States Magistrate Judge

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Summary

The court addressed various discovery issues between the parties, including a motion for a protective order to limit or bar the deposition of a key witness. The court also ruled on objections to a Rule 30(b)(6) deposition notice and declined to address arguments concerning document productions. Additionally, the court ordered the defendant to provide contact information for one former employee but denied the plaintiff's request for contact information for other former employees due to potential GDPR violations.

Additional Decisions

RICHARD KADREY, et al., Plaintiffs,
v.
META PLATFORMS, INC., Defendant

Case No. 23-cv-03417-VC (TSH)

United States District Court, N.D. California

Filed November 01, 2024

Counsel

Joseph R. Saveri, Aaron Cera, Cadio R. Zirpoli, Christopher K.L. Young, Margaux Poueymirou, Joseph Saveri Law Firm, LLP, San Francisco, CA, Holden J. Benon, Louis Andrew Kessler, Joseph Saveri Law Firm, Inc., San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell V. Pritt, Boies Schiller Flexner LLP, San Francisco, CA, David A. Straite, DiCello Levitt LLP, New York, NYMadeline E. Hills, Pro Hac Vice, DiCello Levitt LLP, Chicago, IL, Kathleen Jordan McMahon, Sidran Law Corp, San Ramon, CA, Matthew Butterick, Matthew Butterick, Attorney at Law, Los Angeles, CA, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel, LLP, Chicago, IL, for Plaintiffs Richard Kadrey, Sarah Silverman, Christopher Golden.
Bryan L. Clobes, Alexander Sweatman, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel LLP, Chicago, IL, Daniel Jerome Muller, Ventura Hersey & Muller, LLP, San Jose, CA, Aaron Cera, Christopher K.L. Young, Margaux Poueymirou, Joseph R. Saveri, Joseph Saveri Law Firm, LLP, San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell V. Pritt, Boies Schiller Flexner LLP, San Francisco, CA, David A. Straite, DiCello Levitt LLP, New York, NY, Madeline E. Hills, Pro Hac Vice, DiCello Levitt LLP, Chicago, IL, for Plaintiffs Jacqueline Woodson, Andrew Sean Greer, Rachel Louise Snyder, David Henry Hwang, Ta-Nehisi Coates, Laura Lippman, Matthew Klam, Junot Diaz.
Adam J. Levitt, Amy E. Keller, James Arthur Ulwick, DiCello Levitt Gutzler LLC, Chicago, IL, Greg G. Gutzler, David A. Straite, DiCello Levitt LLC, New York, NY, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, Lisa Geary, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Seth Haines, Timothy Hutchinson, Rmp LLP, Springdale, AR, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell V. Pritt, Boies Schiller Flexner LLP, San Francisco, CA, for Plaintiffs Mike Huckabee, Relevate Group, David Kinnaman, John Blase.
Amy E. Keller, James Arthur Ulwick, DiCello Levitt Gutzler LLP, Chicago, IL, Greg G. Gutzler, David A. Straite, DiCello Levitt LLC, New York, NY, Lisa Geary, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Seth Haines, Timothy Hutchinson, Rmp LLP, Springdale, AR, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell V. Pritt, Boies Schiller Flexner LLP, San Francisco, CA, for Plaintiff Tsh Oxenreider.
Adam J. Levitt, DiCello Levitt Gutzler LLC, Chicago, IL, Amy E. Keller, Nada Djordjevic, Pro Hac Vice, Madeline E. Hills, Pro Hac Vice, DiCello Levitt LLP, Chicago, IL, James Arthur Ulwick, DiCello Levitt Gutzler LLP, Chicago, IL, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, Christopher K.L. Young, Joseph R. Saveri, Joseph Saveri Law Firm, LLP, San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, David A. Straite, DiCello Levitt LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell V. Pritt, Boies Schiller Flexner LLP, San Francisco, CA, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel, LLP, Chicago, IL, for Plaintiff Lysa TerKeurst.
Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, for Plaintiff Christopher Farnsworth.
Bobby A. Ghajar, Colette Ani Ghazarian, Cooley LLP, Santa Monica, CA, Angela Dunning, Cleary Gottlieb Steen & Hamilton LLP, Palo Alto, CA, Cole Augustus Poppell, Pro Hac Vice, Phillip Edward Morton, Pro Hac Vice, Cooley LLP, Washington, DC, Elizabeth Lee Stameshkin, Juan Pablo Gonzalez, Judd D. Lauter, Cooley LLP, Palo Alto, CA, Kathleen R. Hartnett, Cooley LLP, San Francisco, CA, Mark Alan Lemley, Lex Lumina PLLC, New York, NY, for Defendant.

Hixson, Thomas S., United States Magistrate Judge

DISCOVERY ORDER

*1 In ECF No. 243, the Court ordered the parties to submit a joint discovery letter brief addressing every single issue that is outstanding concerning depositions. The parties filed that at ECF No. 247. The Court now rules as follows.

A. Meta's Motion for a Protective Order

Meta moves for a protective order to bar or limit the deposition of Chris Cox, its Chief Product Officer, citing the apex doctrine. Plaintiffs dispute that Cox is an apex witness. Meta's argument that Cox is an apex witness consists of the following: “Mr. Cox is Meta's Chief Product Officer, a C-level executive of the company listed among Meta's five senior-most ‘Executives’ – along with Meta's CEO, President of Global Affairs, Chief Financial Officer, and Chief Operating Officer.” That sentence then drops a footnote, which cites https://about.meta.com/media-gallery/executives/.

The Court has reviewed that web page. It lists 25 executives, 11 of whom have the word “chief” in their title. Thus, there appear to be 11 C-level executives at the company. Meta's argument that Cox is “listed among Meta's five senior-most” executives assumes, without actually saying this, that the web page lists the executives in descending order of seniority. The Court sees that the first row on the page appears to be organized that way, with the founder and CEO listed first, then the president of global affairs, and then the chief financial officer. But to believe that the rest of the page lists everyone else in descending level of seniority requires believing that a vaguely titled “senior fellow” is more senior than the head of Facebook, the head of WhatsApp, and the head of Instagram. The Court is therefore unwilling to assume that this web page in fact lists the executives that way, which means there is no reason to assume Cox is one of Meta's five senior-most executives. Further, aside from the senior fellow, every executive listed on this web page has an impressive title – they all sound important. But the Court is skeptical that Meta has two dozen apex witnesses.

Normally an apex motion says something about the witness's responsibilities within the company, including how many people report to him or her, and where this person sits in an org chart. Meta doesn't provide any information like that. Meta actually provides zero information about what its Chief Product Officer does or who or what he oversees. The Court thinks Meta has failed to show that Cox is an apex witness and therefore DENIES Meta's motion for a protective order.

B. Plaintiffs' Rule 30(b)(6) Deposition Notice

Meta objects to topics 5, 11 and 12 in their entirety and objects to topics 4 and 8 as overbroad.

1. Topic 5

Topic 5 is not proportional to the needs of the case. It is a huge detour into a large subject that has minimal relevance to this case. The Court QUASHES topic 5.

2. Topic 11

Topic 11 might have been appropriate at an earlier stage in this case. But we're 42 days away from the close of fact discovery. Taking a Rule 30(b)(6) deposition now into everything Meta did to identify and collect documents in response to Plaintiffs' requests for production is not proportional to the needs of the case at this point. Discovery about discovery has to have a purpose. We're not going to redo all of Meta's document productions at this point. If Plaintiffs had a problem with Meta's search terms, date ranges, metadata collection, and so on, those issues should have been raised a long time ago. The Court QUASHES topic 11.

3. Topic 12

*2 Meta's October 30, 2023 submission to the Copyright Office is essentially a legal brief, written from beginning to end by lawyers. Requiring Meta to put up a witness on “[t]he factual bases and any other supporting analysis” for that submission is not a good idea because nearly every question would be met with an instruction not to answer. The Court QUASHES topic 12.

4. Topic 4

Topic 4 is fine as written. Meta is right that no human being can be expected to memorize all of the “discussions or deliberations” called for by this topic. The appropriate way to proceed is for Meta to educate its designee on the important or primary discussions or deliberations, and the Court will consider that sufficient. With that guidance, Meta's overbreadth objection to topic 4 is OVERRULED.

5. Topic 8

Meta's proposal as to topic 8 is acceptable. As drafted, topic 8 is impossible for Meta to comply with. Accordingly, Meta's overbreadth objection to topic 8 is SUSTAINED.

C. Plaintiffs' Requests Concerning Documents

The Court declines to address any of Plaintiffs' arguments concerning document productions. The Court requested briefing concerning the scheduling of depositions. If Plaintiffs believe that any of their arguments about documents are not time barred under the scheduling order, they may file a joint discovery letter brief and should explain why they think their arguments are timely.

D. Former Meta Employees

For former employees that Plaintiffs want to depose and who are not represented by defense counsel, it's reasonable to order the Defendant to provide the last known contact information so Plaintiffs can try to find the former employees and see if they will testify, unless doing so would be legally problematic. Meta says that providing contact information for Guillaume Lample, Edouard Grave and Aurelian Rodriguez would violate the GDPR because they are residents of France. Plaintiffs don't seem to have a response. Meta does not identify a legal problem with providing Plaintiffs Susan Zhang's contact information. Accordingly, the Court ORDERS Meta to provide Plaintiffs with the last known contact information for Zhang and otherwise DENIES Plaintiffs' request.

IT IS SO ORDERED.