United States District Court, N.D. California
DISCOVERY ORDER Re: Dkt. No. 77
MARIA-ELENA JAMES, Magistrate Judge.
Pending before the Court is the parties' joint discovery letter in which Plaintiffs assert that Defendant Facebook Inc.'s contention interrogatories are premature while Facebook asks the Court to compel their responses. Dkt. No. 77. Federal Rule of Civil Procedure 33 permits interrogatories to parties about their factual contentions, yet provides that the Court may postpone answers to those interrogatories "until designated discovery is complete, or until a pretrial conference or some other time." Having considered the parties' positions, relevant legal authority, and the record in this case, the Court finds Facebook's contention interrogatories premature and DENIES Facebook's request to compel responses.
This is a privacy case against the social media website, Facebook, concerning its alleged "scanning" of messages sent through its platform. Jt. Ltr. at 1. A Facebook message is analogous to email as it involves an electronic message sent from one user to another user(s), and users can access a "messages" inbox on Facebook. Id. Through these messages, Facebook users can share content such as photos, text, and video with other Facebook users. Id.
Plaintiffs allege that, without consent, Facebook scans the content of their and putative class members' messages for use in connection with its "social plugin" functionality. Id. Specifically, certain websites display a Facebook "like" counter, which enables visitors to see how many users have clicked a button indicating that they "like" the page or have shared the page on Facebook. Id. Plaintiffs allege that Facebook scans the content of putative class members' messages, and if a link to a web page is in a message, Facebook treats it as a "like" of the page, and increases the page's "like" count by one. Id. Plaintiffs allege that Facebook uses this data regarding "likes" to compile user profiles, which it then uses to deliver targeted advertising to users. Id.
Plaintiffs seek to represent a nationwide class of "all natural person Facebook users located within the United States who have sent or received private messages that included URLs in their content, from within two years before the filing of this action up through and including the date when Facebook ceased its practice." Id. Plaintiffs brought four claims for alleged violations of (1) the federal Electronic Communications Privacy Act (ECPA), (2) California Penal Code section 631, (3) California Penal Code section 632, and (4) California's Unfair Competition Law (UCL). Id.; see also Consolidated Am. Compl. ("CAC"), Dkt. No. 25. On December 23, 2014, Judge Hamilton granted in part and denied in part Facebook's Motion to Dismiss, dismissing the UCL and section 632 claims with prejudice but allowing the ECPA and section 631 claims to proceed. Order re: Mot. to Dismiss, Dkt. No. 43.
On January 26, 2015, Facebook served interrogatories on each of the named Plaintiffs: Matthew Campbell, Michael Hurley, and David Shadpour. Jt. Ltr. at 2. Plaintiffs served their responses in April, and Facebook identified several deficiencies in these responses. Id. Although the parties met and conferred in an attempt to resolve the dispute, they are now at an impasse. Id. Facebook seeks full and complete responses to Interrogatory Nos. 9-13 (Campbell); Interrogatory Nos. 9-12 (Hurley); and Interrogatory Nos. 9-11 (Shadpour), which the parties appended, along with Plaintiffs' responses, as Exhibits A-F to their letter. Id. Facebook's interrogatories ask:
Interrogatory No. 9: IDENTIFY all facts regarding the exact practices by FACEBOOK that YOU contend violate California and/or federal law.
Interrogatory No. 10: Do YOU contend that the scanning of FACEBOOK messages for any purpose violates federal law and/or California law?
Interrogatory No. 11: If YOUR response to Interrogatory No. 10 is anything other than an unqualified "no, " IDENTIFY all facts supporting YOUR Response.
Interrogatory No. 12: Do YOU contend that the scanning of FACEBOOK messages for the purpose of increasing the "Like" count violates federal law and/or California law?
Interrogatory No. 13: If YOUR response to Interrogatory No. 12 is anything other than an unqualified "no, " IDENTIFY all ...