February 18, 2018
Special Set Matters Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.


In the Superior Court of the State of California

In and for the County of San Mateo


Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16


400 County Center, Redwood City

Courtroom 7A


Friday, February 9, 2018




Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.






2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).


Failure to do both items 1 and 2 will result in no oral presentation.


Notifying CourtCall with your intent to appear is not an alternative to notifying the court.


All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 


    Case                  Title / Nature of Case










LineS: 1 & 2




TIMOTHY CHEY                           AARON M. GLADSTEIN

FACEBOOK, INC.                         JULIE SCHWARTZ







Normally, the Court could deny this motion on the ground that Plaintiff’s moving papers violate CRC Rule 3.1345(c), which requires that “If the response to a particular discovery request is dependent on the response given to another discovery request . . .  the other request and the response to it must be set forth” in the Separate Statement. The requests at issue pertain to Defendant’s interrogatory responses, but the Separate Statement does not inform the Court what interrogatories or responses are referenced. The Court exercises its discretion to overlook the defect. Plaintiff shall comply with all Rules of Court and statutes in future filings.


The motion is GRANTED.


Both parties address primarily whether the documents or archive database must be produced, which is an issue, but not for this motion. This motion concerns only the sufficiency of Defendant’s written responses, not the actual production of documents/digital information.


The document requests are for information “in native format,” which the Court construes to mean digital format. Defendant contends that it has fully responded by producing four pages of spreadsheets. The spreadsheets, however, are not the “native format” information that was requested; they are hearsay summaries of the information sought. Defendant’s Opposing Separate Statement contends that the spreadsheets “are” the native format that is sought, implying that they come directly from the archive database. This argument appears to conflict with Defendant’s meet-and-confer letter, which states instead that Mr. Ronak Parekh “searched” the database and subsequently “recorded the results directly into the spreadsheets.”  (Letter from Lee to Burrill, October 18, 2017, Exhibit F to Opposing Declaration of Lee.) 


In general, a litigant is not required to accept hearsay summaries that are prepared by an opposing party during litigation. The litigant is generally entitled to discovery of the information from which the summaries were derived. The Court rejects Defendant Facebook’s argument that examination of the information behind hearsay spreadsheets is impermissible. Defendant also argues that the cost of restoring the archive database is prohibitively expensive and time-consuming when weighed against the potential benefit to Plaintiff. (See Declaration of Gerardo Zargoza.)  However, Defendant’s written discovery responses omit any details or specific facts that would allow the Court to evaluate the merits of Defendant’s objection.


Defendant Facebook shall supplement all of its responses to set forth the specific explanation regarding the undue time and cost of restoring the archived database.


Only if Facebook explains what it contends to be an unduly expensive and time-consuming task can the Court (and Plaintiff) determine whether Facebook’s argument has merit.  After that, Plaintiff can depose Facebook (Mr. Zaragoza). If Plaintiff is able to determine that a less costly manner of obtaining the information exists, then he may seek the information again.



The Court does not rule on whether Defendant must produce the information, since a motion to compel actual production or inspection is appropriate only when a party “fails to permit the inspection . .  in accordance with that party’s statement of compliance.” (Code of Civ. Proc. sect. 2031.320.) That is not the present motion, despite the amount of argument the parties direct to the issue of production.


Defendant Facebook shall serve verified supplemental responses no later than February 22, 2018.


Requests for sanctions are denied.


If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.






2. Motion for reconsideration



Facebook’s motion for reconsideration is GRANTED. The Court modifies its ruling as set forth below.


The motion meets the requirements of Code of Civil Procedure section 1008. The new facts are the estimates of cost of compliance with the Court’s order and the ruling that limits Plaintiff’s damages to $185,000. Neither fact was known at the time of the previous hearing. In addition, the cost of compliance was not argued by Facebook, since the issue was not directly raised by any party. (However, all parties should have been aware of, but failed to cite, the case law that requires the notification and opt-out procedure that the Court ordered. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 651–53).)


Facebook offers two arguments for revoking the prior order: (1) The cost for Facebook to comply with the order (over $250,000) significantly outweighs any reasonable discovery benefit, and (2) The Court recently capped Plaintiff’s damages at $185,000. The estimate of $250,000 to $300,000 is by Facebook’s attorney Catherine del Fierro. Plaintiff offers no evidence to contradict or cast doubt on her estimate, but he has not had the opportunity to conduct any discovery on the issue either. Based on the present evidence, the Court cannot compel Facebook to incur a $250,000 cost when Plaintiff’s maximum potential recovery is an amount significantly less than that.


Plaintiff claims that the complicated user notice and communication procedure he proposes does not require an attorney to implement because it only requires someone who knows how to send an email, knows how to send a private message through Facebook, and knows how to make a telephone call. Plaintiff claims that these tasks only require “the skill set of a parrot.” Plaintiff’s arguments miss the point because they ignore the established process Facebook uses to ensure accurate and legal communications with users whether by emails or in phone calls.


Facebook’s proposal to have Ms. del Fierro—an attorney who is primarily responsible for sending notice of process for Facebook and other clients—send notice and communicate with users is proper because she has the institutional knowledge to correctly communicate with and respond to users regarding the legal matters at hand. Using Ms. del Fierro would also promote integrity in the notice and response process by protecting the identifying information of Facebook users from third parties, limiting mistakes, and allowing appropriate communications with users on legal matters and their legal rights. (Declaration of del Fierro ¶¶ 4-5.)


It is easy for Plaintiff to suggest that Facebook adopt a different process than the one normally followed. But Plaintiff‘s proposal to use non—attorneys or third-party vendors would create confusion with respect to new processes, add the time and burden to find and vet a third-party vendor, and risk exposure of user information. There is no reason to deviate from Facebook’s established process.


The order that customers be notified before their identities are disclosed is legally and factually correct. (Life Technologies, supra.) For that reason, the Court does not revoke the order. Instead, the Court stays the order until Plaintiff can offer evidence of a method of notifying users that is more economically feasible than the one Facebook suggests, or evidence that Facebook’s estimate of the cost is unreasonably high. 


If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.








POSTED:  3:00 PM


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