1 ENDORSED FILED 2 SAN MATEO COUNTY , MAR 1 5 2019 3 Clerk or me buperior Court R. Huerta 4 By DEPUTY-CLERK 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF SAN MATEO 8 SIX4THREE LLC, Case No. CIV533328 9 Plaintiff, 10 vs. ORDER RE: DEFENDANT FACEBOOK INC.'S MOTION TO OPEN DISCOVERY AND TO COMPEL 11 F ACEBOOK, INC., et al. 12 Assigned for All Purposes to Hon. V. Raymond Swope, Dept. 23 Defendants. 13 Dept.: 14 Action Filed: 23 April 10, 2015 15 16 Defendant F ACEBOOK, INC.'s ("Facebook") Motion to Open Discovery and to Compel 17 came on for hearing on March 15, 2019 at 10:00 a.m. in Department 23 of this Court before the 18 Honorable V. Raymond Swope. Sonal Mehta, Joshua Lerner, Laura Miller, Catherine Kim, and 19 Zachary Abrahamson of Durie Tangri and Natalie Naugle of Facebook, Inc. appeared for 20 Defendants. David Godkin of Birnbaum & Godkin and Stuart Gross of Gross & Klein appeared for 21 Plaintiff. James Murphy of Murphy, Pearson, Bradley & Feeney appeared on behalf of Mr. Godkin 22 as personal counsel. Donald Sullivan of Wilson, Elser, Moskowitz, Edelman & Dicker appeared on 23 behalf of Mr. Gross as personal counsel. Jack Russo of ComputerLaw Group appeared on behalf of 24 individuals Theodore Kramer and Thomas Scaramellino as personal counsel.. Upon due consideration of the briefs and evidence presented, and the oral argument of 25 26 counsel for the parties, and having taken the matter under submission, 27 III 28 III -1ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL IT IS HEREBY ORDERED as follows: 2 In its discretion, the Court sua sponte reconsiders its ruling on the record on December 17, 3 2018, in vacating its prior "order reopening discovery for the limited purpose of investigating the 4 breach of the court orders" (Russo Dec. ISO Kramer Response, filed Jan. 17, 2019, Ex. 2, p. 5:3-5) 5 and memorialized in the Order re: Discovery, issued on January 16, 2019, in light of new facts 6 presented in this motion. (Code Civ. Proc.§ 1008, subd. (c).) 7 The leaks of sealed or stricken court filings and the confidential documents attached outside 8 of DCMS publication have continued. (See Am. CM Order no. 19, issued Mar. 4, 2019.) 9 10 11 12 13 14 1. Crime-Fraud Exception Facebook has made a ptima facie showing that the crime-fraud exception applies based on the instant facts. Evidence Code section 956 codifies the common law rule that the privilege protecting confidential attorney-client communications is lost if the client seeks legal assistance to plan or perpetrate a crime or fraud. [Citation.] The crime-fraud exception expressly applies to communications ordinarily shielded by the attorneyclient privilege. (Evid. Code, § 954.) 15 16 (BP Alaska Exploration, Inc. v. Sup.Ct. (1988) 199 Cal.App.3d 1240, 1249 ("BP Alaska").) 17 20 To invoke the crime-fraud exception, the proponent must make a prima facie showing that the services of the attorney were sought or obtained to aid someone in committing a crime or fraud. Evidence Code section 956 does not require a completed crime or fraud. It applies to attorney communications sought to enable the client to plan to commit a fraud, whether the fraud is successful or not. It is the intent of the client upon which attention must be focused and not that of the lawyers. 21 (Favila v. Katten Nluchin Rosenman LLP (2010) 188 Cal.App.4th 189, 220 (internal citations, 22 quotations omitted) (original emphasis).) 18 19 23 Plaintiff SIX4THREE, LLC's ("Six4Three") contention that "Facebook has taken a handful 24 of quotations out of context in an attempt to spin a narrative-that Six4Three and its counsel have 25 plotted for years to reveal Facebook's confidential infonnation, notwithstanding the protective 26 order" is belied by the evidence submitted in support of this motion, as discussed infra. (Six4Three 27 Opp., filed Feb. 27, 2019, p. 3:24 - 4:3 (original emphasis).) Furthermore, Mr. Godkin's statement 28 that "[t]he summary of 643's publicly-filed Fifth Amended Complaint that my firm sent to various -2ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL 1 media and government entities summanzes the complaint's allegations and cites to the Fifth 2 Amended Complaint" is equally not well taken as discussed infra. (Godkin Dec. ISO Six4Three 3 Opp., filed Feb. 27, 2019, ,r 8 ("Godkin Dec."). See Six4Three Opp., supra, at p. 5:5-12.) It is undisputed that certain infonnation produced in this action are subject to a Stipulated 4 5 Protective Order. Specifically, the parties stipulated, Any persons receiving Confidential Information or Highly Confidential Information shall not reveal or discuss such information to or with any person who is not entitled to receive such infonnation, except as set forth herein. 6 7 ,r 8 (Stip. Prot. Order, issued Oct. 24, 2016, 6.) Facebook began producing "documents marked 9 'confidential' and 'highly confidential' in December 2016. (Godkin Dec., supra, at ,r 5.) 10 Counsel for Six4Three have made multiple representations to the Court that "there have been 11 no communications with third parties regarding Facebook's Confidential Information." (Miller Dec. 12 ISO Motion, filed Jan. 9, 2019, Ex. 1, p. 36:8-10 ("Miller Dec."). See also Godkin Dec. ISO Godkin 13 Resp. to Ex Pmie, filed Feb. 28, 2019, 14 confidential or highly confidential information in conformance with the Protective Order").) ,r 5 ("B&G only provided third parties with Facebook's 15 These statements are directly contradicted by the communications Six4Three and its counsel 16 had with third parties. The summaries at issue not only summarize the allegations, but also analyze 17 in detail the confidential infonnation obtained from Facebook. For instance, in an email exchange 18 initiated by Mr. Godkin to the Information Commissioner's Office, with the subject line, "Extensive 19 evidence regarding Facebook's treatment of friend data and user privacy," Mr. Godkin introduced 20 himself and stated that he and his finn had "obtained extensive discovery of communications 21 between Zuckerberg and numerous executives ... that [they] believe[] is highly relevant to the 22 Cambridge Analytica investigation .... " (Miller Dec., supra, at Ex. 2 (bates no. BG001353). See 23 also id. at Ex. 12 (bates no. BG000152), 13 (BG000154), 14 (BG000156), 24 (BG001330), 25 24 (BG001357), 26 (BG00l 825).) Notably, Mr. Godkin initiated the email exchanges to: (1) California 25 legislators (Miller Dec., supra, at Ex. 12 (bates no. BG00Ol 52)); (2) Oregon Department of Justice 26 (Ex. 14 (BG000156)); (3) State of Massachusetts (Ex. 24 (BG001330)); and (4) Federal Trade 27 Commission (Ex. 26 (BG00 1825).) 28 /// -3ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL In the email, Six4Three's counsel explicitly writes that the summary is one of evidence and 2 not the allegations. On their face, these emails demonstrate that the summary went beyond the four 3 comers of the Fifth Amended Complaint, and included counsel's own impressions and analysis of 4 Facebook's confidential information included in the summary. Counsel went further by inviting the 5 recipient to find an "appropriate mechanism" to permit disclosure. This summary does not do the wealth of evidence we have obtained justice, which is why I'm hoping we can speak with your office to determine ifthere is an appropriate mechanism for your team to evaluate the evidence yourselves. 6 7 8 (Miller Dec., supra, at Ex. 2 (B0001353). See also id. at Ex. 12 (bates no. B0000152), 13 9 (B0000154), 14 (B0000156), 24 (B0001330), 25 (B0001357), 26 (B0001825).) The summary 1O also summarizes the contents of "internal emails." (Id.) The closing paragraph of that email further 11 demonstrates the summary revealed or discussed confidential information obtained from Facebook, 12 and not the allegations of any complaint. As you can see, there is a lot here, and it would take months or even years for ICO to obtain discovery of this information from Facebook. We hope to identify an appropriate mechanism for your team to access it and determine its relevance to your current efforts. 13 14 15 16 (Miller Dec., supra, at Ex. 2 (B0001353). See also id. at Ex. 12 (bates no. B0000152), 13 17 (B0000154), 14 (B0000156), 24 (B0001330), 25 (B0001357), 26 (B0001825).) Lastly, the 18 summary does not cite to the paragraphs of the Fifth Amended Complaint as asserted by Six4Three. 19 (Compare Six4Three Opp., supra, at p. 5:9-12; vrith Miller Dec., supra, at Ex. 2 (B0001353), 12 20 (bates no. B0000152), 13 (BG000154), 14 (BG000156), 24 (B0001330), 25 (B0001357), 26 21 (B0001825.) 22 In addition to the summary of evidence, several written communications have been produced 23 by Six4Three's counsel pursuant to stipulation that involve Six4Three, its principal Mr. Kramer, and 24 its counsel, including Mr. Godkin, Mr. Gross, Mr. Kruzer, and Mr. Scaramellino, revealing or 25 discussing confidential information produced by Facebook with third parties and using a retained 26 expert as a source for the news media as follows: 27 28 (1) "We have uncovered evidence supporting these claims and believe Facebook's conduct also includes competitive restrictions against over 40,000 software applications" (Miller Dec., supra, at Ex. 3, (SIX4THREE00015917)); -4ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL 1 2 (2) "There is an opportunity to unseal about 3,000 pages of hot documents that we believe very clearly prove the allegations in our complaint" (Miller Dec., supra, at Ex. 6 (BG001308)); (3) "We are extremely eager to do the story now that there is an opportunity for the documents to be released. I understand that Collins said that will happen in a week, but I'm sure they could leak before - and of course we want to be first. The challenge is that until now we have only talked off the record, so it will be hard to use material from our conversations if I don't hear from you." (Miller Dec., supra, at Ex. 15 (BG000716)); (4) "We have obtained emails from Zuckerberg and numerous other Facebook executives and employees ... " (Miller Dec., supra, at Ex. 16 (BG000425)); and (5) The key thing with [redacted] is that if the article identifies him as an expert witness or bases his confirmation of the allegations on the fact that he has reviewed the evidence .. ." (Miller Dec., supra, at Ex. 19 (BG0006403); see Ex. 18 (BG006394). 3 4 5 6 7 8 9 10 11 12 Notably, Six4Three posits no argument or citation to evidence that the references to the evidence 13 made in these communications came from non-confidential information or sources. Furthermore, 14 these communications were mostly made prior to Mr. Kramer's disclosure to the DCMS or before 15 DCMS publication. (See Six4Three Opp., supra, at p. 4:6-8) The exception is Miller Declaration, 16 Exhibit 15, which is a communication between the Washington Post and Six4Three and its counsel 17 made after Mr. Kramer's disclosure but before DCMS publication. 18 To that end, Mr. Gross' attempt to minimize his participation in these communications is not 19 well taken. (See Six4Three Opp., supra, at p. 6:10-21.) First, Mr. Gross stated his firm, Gross & 20 Klein LLP, is contractually obligated to follow the direction of lead counsel Birnbaum & Godkin, 21 LLP in this action. In its retainer agreement with Six4Three, 22 23 24 25 The Client acknowledges that any action taken by the Finn will be at the direction of Birnbaum & Godkin, LLP ("Lead Counsel"). It its [sic] role as local counsel, the Firm will not be responsible for developing legal strategy, implementing legal strategy, monitoring filing deadlines, or otherwise directing the litigation. If, at any point in the Client's representation by the Firm, the Client would like to modify this scope of representation, the Client shall advise the Firm and a new retainer agreement shall be negotiated. 26 27 (Gross Dec. ISO Withdraw, filed Jan. 24, 2019, Attachment 2, ,i 4.) Mr. Gross states that the retainer 28 agreement was never modified. (Id.) Accordingly, any communications with Six4Three would have -5ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL been at the behest of Birnbaum & Godkin. On November 27, 2018, Mr. Gross was cc:ed on an 2 email from the Washington Post and to Mr. Kramer, principal of Six4Three, and Mr. Scaramellino, 3 a member of Six4Three's legal team, wherein the author stated, 4 5 6 7 8 I'm getting a bit worried since I have not heard from you in several days. We are extremely eager to do the story now that there is an opportunity for the documents to be released. I understand that Collins said that will happen in a week, but I'm sure they could leak before - and of course we want to be first. The challenge is that until now we have only talked off the record, so it will be hard to use material from our conversations if I don't hear from you. In addition, the trove is big as we know, and I know you had promised to offer some guidance on how to go through it. [,r] I would really appreciate if you could let me know what is happening either way - even if it is to say that you can't speak.You can reach me on my cell or on Signal at [redacted]." 9 10 (Miller Dec., supra, at Ex. 15 (BG000716).) Notably, Six4Three does not posit argument and Mr. 11 Gross does not state in a declaration that he did not receive or,read that email. (See Six4Three Opp., 12 supra, at p. 6: 10-24.) Six4Three did not file objections to the evidence proffered by Facebook. This 13 email demonstrates that there were conversations with a third party prior to DCMS publication 14 revealing or discussing Facebook's confidential information upon which Mr. Gross was a recipient 15 to all or part of those communications. Although Mr. Gross was contractually responsible for 16 submitting to the efforts of Birnbaum & Godkin, LLP as lead counsel, Mr. Gross nevertheless had 17 an independent duty as local counsel. 18 19 20 21 22 23 Furthennore, from the outset of his firm's retention by Six4Three, Mr. Godkin required Mr. Scaramellino to work on Six4Three's legal team. Mr. Scaramellino, Mr. Kramer and I recognized that filing a lawsuit against Facebook would require substantial legal resources. Because my firm is small, and because 643 is a defunct startup with very limited resources, I concluded that it would be appropriate and helpful for Mr. Scaramellino to work with me and my firm as part of the legal team. . .. As such, Mr. Scaramellino's agreement to work with me on the litigation team was a condition of Birnbaum & Godkin's engagement with 643. ,r 6.) 24 (Miller Dec., supra, at Ex. 9, 25 supervision over Mr. Scaramellino in this action. 26 27 28 Mr. Godkin has previously advised the Court of his direct Accordingly, Mr. Scaramellino has been working with me and my firm as a member of the legal team since my firm was retained by 643, with 643's full knowledge and approval. Mr. Scaramellino is performing legal research, fact investigation, assembly of data and information, and preparation of pleadings, and any other work that I decide will assist me and my finn in carrying out the representation of 643. All of -6ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL 1 2 3 the tasks performed by Mr. Scaramellino are perfonned at my direction and under my supervision. All of the work perfonned by Mr. Scaramellino has been reviewed by me or another attorney at my firm, and merged into my firm's work product. Mr. Scaramellino is not being paid for his work, His role is akin to that of a law clerk or paralegal, similar to his roles at Davis Polk and SDNY. 4 5 (Miller Dec., supra, at Ex. 9, 6 ,r 7.) The conduct of Mr. Scaramellino in this action is imputed on Birnbaum & Godkin, LLP. 7 Moreover, these communications with third parties fall outside of the ambit of Rules of 8 Professional Conduct, rule 3.6(b)(l)-(5). (See Six4Three Opp., supra, at p. 5: 17-22.) Rather, rule 9 3 .6 pennits the lawyer to state: 10 (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; 11 12 (2) information contained in a public record; 13 (3) that an investigation of a matter is in progress; 14 (4) the scheduling or result of any step in litigation; 15 (5) a request for assistance in obtaining evidence and information necessary thereto; 16 17 (Rules of Prof. Conduct, rule 3.6(b)(l)- (5).) The aforementioned emails of Six4Three's counsel 18 demonstrate that counsel's summary of evidence to third paiiies exceeds the scope of this rule. 19 The evidence reflects that Six4Three, through its principal Mr. Kramer, utilized the services 20 of counsel to aid in committing a crime or fraud. Prior to traveling to the United Kingdom with 21 documents containing Facebook's confidential information, Mr. Kramer communicated with Mr. 22 Collins on finding an "approp1iate mechanism" to disclose to DCMS similar to the communications 23 of Six4Three's counsel to target third parties. 24 On October 1, 2018, Mr. Kramer initiated a communication to Mr. Collins by way of an 25 email with the subject line, "Extensive evidence relevant to Facebook's data and privacy abuses." 26 (Miller Dec., supra, at Ex. 45, ,r 5, Ex. 1 ("Kramer Dec.").) Although Mr. Kramer stated that he was 27 "summariz[ing] the public information from our case" for Mr. Collins, the summary is essentially 28 the same as the one sent by Six4Three's counsel. (Compare Kramer Dec., supra, at ,r 5, Ex. 1; with -7ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL 1 Miller Dec., supra, at Ex. 2 (BG001353), 12 (bates no. BG000152), 13 (BG000154), 14 2 (BG000156), 24 (BG001330), 25 (BG001357), 26 (BG001825).) 3 On November 3, 2018, in response, Mr. Collins provided his personal email and mobile 4 phone number to Mr. Kramer. (Kramer Dec., Ex. 2.) In that same email, Mr. Collins also inquired 5 as to the documents in Mr. Kramer's possession. Specifically, 6 7 8 9 Unredacted copy of Plaintiff Six4Three's Conected Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (Anti-SLAPP) filed on May 18, 2018; Unredacted copy of the Declaration of David S. Godkin in Support of Six4Three's Anti-SLAPP Opposition ("Godkin Anti-SLAPP Declaration") filed concurrently therewith on May 18, 2018; 10 Exhibits 1-212 to the Godkin Anti-SLAPP Declaration filed on May 18, 2018; 11 12 All documents containing summaries or analyses of any of the exhibits to the Godkin Anti-SLAPP Declaration filed on May 18, 2018. 13 14 (Kramer Dec., Ex. 2.) On November 4, 2018, Mr. Kramer confinned his possession and shared his 15 own personal view of those documents. 16 Thanks for your note. I can confirm that your description of the documents in my possession is accurate. 17 18 20 My personal view is that the documents you list in your note contain information highly relevant to your investigation regarding Facebook's data practices, and further that it would be impossible for the investigation to reach any legitimate conclusions without a thorough review of this infonnation. 21 (Kramer Dec., Ex. 3.) Mr. Kramer also invited Mr. Collins to start an "appropriate mechanism" for 22 disclosure, the conversation of which implicates Six4Three's counsel. 19 23 24 25 26 These documents are subject to confidentiality under a protective order entered in San Mateo Superior Court in California. Carole mentioned you may be seeking to subpoena the documents. I will agree to accept service of a subpoena mailed to my home address: [redacted] Upon receipt of any subpoena, I would be required to notify Facebook. If Facebook wishes to prevent my compliance, it will need to take action in appropriate fora. 27 28 -8ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL If you wish to speak, it is best we setup a phone call with a conference line. We 2 3 4 5 6 7 8 9 10 11 12 always have a member of our legal team on the line to ensure we have witnesses of what was discussed in the event Facebook takes retributive action against us. (Kramer Dec., supra, Ex. 3.) Approximately one week later on November 12, 2018, Mr. Kramer responded that he could not "voluntarily disclose" the documents. (Id. at Ex. 4.) On November 13, 2018, Mr. Collins emailed Mr. Kramer, "Would we be clear to publish what you have already sent us as written evidence without there being any repercussions for you? [Whilst we have immunity, you still need to consider your own position]" (Id. at Ex. 5.) On November 19, 2018, Mr. Kramer arrived in London. (Id. at ,I 11.) Still left unexplained is how Six4Three's counsel caused Facebook's confidential information and highly confidential received pursuant to the Stipulated Protective Order to be uploaded and available for viewing and download on its client, Six4Three's Dropbox account no later than October 1, 2018. Six4Three's counsel admits it was responsible for the safekeeping of that 13 confidential information. 14 15 Mr. Godkin: Your Honor, what I learned last week for the first time was that the documents would have been placed on Six4Three's Dropbox system. 16 The Court: How? 17 Mr. Godkin: I don't know. 18 The Court: Why? 19 20 21 22 23 24 25 26 27 Mr. Godkin: I don't know that either. But that is precisely the problem here that has caused us to have a serious issue. You're absolutely right that the - the documents that were produced by Facebook in my understanding have always been completely secure from Mr. Kramer. The mistake that was made here was that pleadings that referenced those documents had been placed without my firm's knowledge onto Six4Three's Dropbox system. That is I believe where the mistake was made. And my firm obviously has to take responsibility for failing to adequately protect that from happening and we do. (Nov. 30, 2018 Transcript, p. 23:6-22.) Notably, in a subsequent declaration, Mr. Godkin acknowledges only his finn and its employees had access to Facebook's confidential and highly confidential information. 28 -9ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL My firm has stored and maintained Facebook's confidential infonnation on a password-protected document hosting platfonn (Relativity) and on the finn's secure server. [,r] Only firm employees have access to the firm's secure server. [,r] Thomas Scaramellino assisted with the litigation as an outside member of the legal team. He was not given access to the firm's secure server. 2 3 4 5 (Godkin Dec. re: CM Order no. 19, executed Mar. 5, 2019, p 5:17-18.) Notably, Mr. Godkin does 6 not state the security of his finn's server or document hosting platfonn has been compromised. One 7 can only conclude that Birnbaum & Godkin caused Facebook's confidential and highly confidential 8 information to be uploaded on Six4Three's Dropbox. 9 Based on the foregoing, the Court finds that Facebook has made a prima facie showing that 10 the services of the Six4Three's counsel was sought or obtained to aid Six4Three in committing a 11 crime or fraud and the crime-fraud exception applies. 12 2. Depositions of Six4Three's Counsel 13 Despite being highly disfavored, Facebook has demonstrated the necessity of deposing 14 Six4Three's counsel and members of its legal team given the incongruities in their statements when 15 compared to the evidence of their communications revealing or discussing confidential information 16 with third parties and their overall handling of Facebook's confidential information. (Spectra- 17 Physics, Inc. v. Sup.Ct. (Teledyne, Inc.) (1988) 198 Cal.App.3d 1487, 1494-95.) 18 As a threshold matter, there is evidence of oral conversations revealing or discussing 19 Facebook's confidential information between Six4Three's counsel, its legal team, retained experts, 20 its principal Mr. Kramer and third parties in contravention of Stipulated Protective Order, paragraph 21 6, in documents produced by Birnbaum & Godkin, LLP pursuant to stipulation: 22 (1) The challenge is that until now we have only talked off the record, so it will be hard to use material from our conversations if I don't hear from you." (Miller Dec., supra, at Ex. 15 (BG000716)); (2) "Ted mentioned that [redacted] can confirm some of our allegations in the complaint. Would he or others be willing to do so on the record? We are very much hoping that the first reporting of this can ve1ify at least a significant portion of the allegations to mitigate the impact of FB's counter punch. Since we don't want to reveal [redacted] we are wonde1ing who might fill this gap" (Miller Dec., supra, at Ex. 18); 23 24 25 26 27 28 -10ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL (3) "The key thing with [redacted] is that if the article identifies him as an expert witness or bases his confirmation of the allegations on the fact that he has reviewed the evidence .. ." (Miller Dec., supra, at Ex. 19 (BG0006403)); (4) "I think anonymous quotes from [redacted] would be fine so long as he isn't identified as an expert witness" (Miller Dec., supra, at Ex. 48 (BG006401)); (5) In response to an email stating "the investigation team directly dealing with the Cambridge Analytica/FB file" who "will be in touch shortly", Mr. Godkin responded, "I am in arbitration for the next several days but am copying my colleague Jim Kruzer who I believe will be in the office and can coordinate" (Kim Dec. ISO Facebook Opp. to Withdraw, filed Jan. 17, 2019, Ex. 1 (BG001357) ("Kim Dec.")); 1 (6) "Many thanks for the call just now. Please meet David Godkin, lead counsel in the litigation I mentioned" (Kim Dec., supra, at Ex. 2 (BG001330)); (7) In response to an email asking when "there [is] a good time tomorrow that [redacted] and I can touch base on this," Mr. Godkin provided the same summary as discussed supra and responded, "Unfortunately I will be in arbitration starting tomorrow for the next few days, but my colleague Jim Kruzer who is working with me on the Facebook litigation ... will touch base with you" and Mr. Kruzer subsequently set up a conference call (Kim Dec., supra, at Ex. 2 (BG01330); (8) Mr. Kramer sent the summary and the target third party recipient inquired, "How would you like to proceed," and Mr. Kramer responded, "I would suggest as a next step that we setup a phone call with one of the attorneys on the case, Jim Kruzer, whom I've copied on this note" (Kim Dec., supra, at Ex. 5 (BG007096); and (9) In emailing the summary, Mr. Godkin wrote, "I'm know [sic] you must be extremely busy, but I watched you on the news yesterday and the media's narrative around Cambridge Analytica is all wrong. You are in a unique position to correct it. Here is the truth below. I hope you do find time to explore it at some point. You have my contact information if you or your team frees up." (Kim Dec., supra, at Ex. 10 (BG001868)). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The Court finds the above references in emails to conference calls and oral communications 22 involving Six4Three's counsel, its legal team, and Mr. Kramer with targeted third parties pertaining 23 to Facebook's documents warrant these depositions. Fmihermore, in a declaration, Mr. Gross does 24 not affirmatively state he did not receive or read the emails he was cc:ed on, but rather he "did not 25 26 27 28 1 In the Notice of Motion, Facebook states, "This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities, and the Declaration of Laura E. Miller in support thereof, and all other pleadings, records, and papers filed in this action, any on any other evidence and argument as may be considered by the Court prior to its decision on the Motion." (Not. Mot. to Open Discovery, filed Jan. 8, 2019, p. 1:16-19.) Neither Six4Three nor its counsel objected to this evidence proffered by Facebook in opposition to the motions to be relieved as counsel. -11ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL pay much attention to these emails with the press on which I was simply copied." (Gross Dec. ISO 2 Gross Resp. to Ex Parte, filed Feb. 28, 2019, ,i 8.) The excuse of inattention does not shield Mr. 3 Gross from deposition. It is apparent from the evidence that Six4Three's counsel was engaged in 4 the "heavy lifting" of analyzing and summarizing Facebook's confidential information to third 5 parties, and not merely acting in an advisory role to Six4Three. 6 Furthennore, this evidence is incongruous with statements made by Six4Three's counsel in 7 declarations to the Court. 8 9 At no time did my 'firm direct, authorize, condone, or otherwise sanction the release, disclosure, or commentary by Mr. Kramer, Mr. Scaramellino, experts and consultants of any confidential or highly confidential information to any third party. 10 11 12 13 14 15 16 17 18 19 20 21 ( Godkin Dec. re: CM Order no. 19, supra, at p 5: 17-18.) At no time did I, my employees or my firm direct, authorize, condone, or otherwise sanction the release, disclosure, or commentary by Mr. Kramer, Mr. Scaramellino, experts and consultants of any confidential 0X highly confidential information to any third party. 6( (Godkin Suppl. Dec. re: CM Order no. 19, executed Mar. 6, 2019, p. 2:12-15.). Furthermore, Mr. Scaramellino, a member of the Six4Three legal team and law clerk for Birnbaum & Godkin, LLP, contradicts Mr. Godkin. At no time from my execution of the attached certification on December 1, 2016 have I provided information subject to the Protective Order to any unauthorized individuals or outside the scope of Mr. Godkin's supervision or without Mr. Godkin's knowledge. (Scaramellino Dec. re: CM Order no. 19, executed Mar. 14, 2019, ,r 3.) 22 Lastly, Mr. Godkin contradicts himself in two of his declarations as to his handling of 23 Facebook's highly confidential infonnation. "As set forth above, B&G only provided third parties 24 with Facebook's confidential or highly confidential infonnation in conformance with the Protective 25 Order." (Godkin Dec. ISO Godkin Resp. to Ex Parte, supra, at ,i 5.) However, in a subsequent 26 declaration, Mr. Godkin admits he provided highly confidential information to Mr. Scaramellino 27 despite Mr. Scaramellino striking out "highly confidential information" from the certification he 28 executed. (Godkin Dec. re: CM Order no. 19, supra, at ,i 5.) Mr. Scaramellino should not have -12ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL received highly confidential infonnation without executing the certification. 2 3. Order 3 Based on the foregoing, the Court GRANTS, IN PART, AND DENIES, IN PART, 4 Facebook's Motion to Open Discovery and to Compel. The opening of discovery is limited to the 5 revealing or discussing of Facebook's confidential information pursuant to Stipulated Protective 6 Order, paragraph 6 and disclosures or providing thereof. Discovery of the merits of the action 7 remain stayed pending the cross-appeals of the order on the anti-SLAPP motions. 8 Facebook's request for discovery based on the Notices of Deposition is premature. On 9 November 30, 2018, Facebook served notices of deposition with requests for production of 10 documents, and thus, documents need not be produced p1ior to the deposition date. (Code Civ. Proc. 11 § 2025.220, subd. (b )(4 ). See Miller Dec., supra, at Ex. 33 - 36.) 12 Accordingly, the Court grants Facebook leave to serve its requests for production or 13 subpoena duces tecum, whichever is the appropriate method, on Mr. Gross, Mr. Godkin, Mr. 14 Kramer, and Mr. Scaramellino as enumerated in Appendix A to Facebook's Memorandum of Points 15 and Authorities, received Jan. 9, 2019. A copy of Appendix A is attached as Exhibit A. 16 The attorney-client privilege is waived pursuant to the crime-fraud exception. A work 17 product log shall be served for any documents withheld on those grounds. 18 The requests to compel depositions are premature given Facebook is requesting production 19 of the documents p1ior to the deposition. Scheduling of depositions are contingent on production, 20 which shall be the subject of a further discovery conference on April 26, 2019 at 2:00 p.m. 21 Lastly, the Court acknowledges that Mr. Kramer and Mr. Scaramellino's response and 22 production to Appendix A will be greatly curtailed given the orders of this Court and will require 23 searches of their preserved data by the forensic examiner. 24 In earlier proceedings, Six4Three and its counsel have expressed concern that the forensic 25 examiner, Stroz Friedberg, is not truly a neutral third party forensic examiner because Facebook has 26 refused to relinquish seeking Stroz Friedberg's expe1iise in this! other matters. Although the Court 27 previously ordered Stroz Friedberg to conduct a limited search of logs based on ex parte relief, a 28 neutral third paiiy forensic examiner shall now be appointed. j__ -13ORDER RE: FACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL Accordingly, the parties' counsel (not personal counsel) shall meet and confer and propose 2 three neutral forensic examiners to the Court no later than March 22, 2019 to conduct searches on 3 Mr. Kramer and Mr. Scaramellino's data currently in the possession, custody, and/or control of Stroz 4 Friedberg. 5 6 7 The cost of the neutral third party forensic examiner will be borne solely by Facebook given Six4Three's inability to pay. The Court will issue an order appointing the neutral third pmiy forensic examiner and the 8 transfer of all data and documents pertaining to chain of custody from Stroz Friedberg so that it is 9 no longer in the possession, custody, and/or control of Stroz Friedberg. Stroz Friedberg shall file 1O and serve a declaration of compliance. Stroz Friedberg shall still maintain all documents pertaining 11 to chain of custody. The order for Stroz Friedberg not to disclose, discuss, or reveal any information 12 obtained from the data in its possession, custody, or control outside of further order of the Court 13 shall remain in effect. 14 The parties shall also meet and confer on the parameters of searches for electronic documents 15 in the possession, custody, or control of the neutral third pmiy forensic examiner. A discovery 16 conference on the limited issues of the opening of discovery is set for April 26, 2019 at 2:00 p.m. 17 18 IT IS SO ORDERED. 19 20 DATED: March 15, 2019 21 V. RAYMOND SWOPE 22 Honorable V. Raymond Swope Judge of the Superior Court 23 24 25 26 27 28 -14ORDER RE: F ACEBOOK'S MOTION TO OPEN DISCOVERY AND TO COMPEL Exhibit A 1 2 3 4 5 6 7 8 9 DURIE TANGRI LLP SON AL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUAH. LERNER (SBN 220755) jlerner@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com 21 7 Leidesdorff Street San Francisco, CA 94111 415-362-6666 Telephone: 415-236-6300 Facsimile: Electronically RECEIVED Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN MATEO 12 13 SIX4THREE, LLC, a Delaware limited liability company, Plaintiff, 14 15 16 17 18 19 20 21 V. F ACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; IL YA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. Case No. CIV 533328 Assigned for all purposes to Hon. V. Raymond Swope, Dept. 23 APPENDIX A TO DEFENDANT FACEBOOK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO OPEN DISCOVERY AND TO COMPEL Date: Time: Dept: Judge: February 7, 2019 9:00 a.rn. 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 APPENDIX A TO FACEBOOK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO OPEN DISCOVERY AND TO COMPEL/ CASE NO. CIV 533328 REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: Documents (e.g., phone logs) sufficient to show all telephonic and/or video conference communications between Six4Three, including without limitation Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative of Six4Three, and any individual or entity regarding the Individual Defendants' Special Motion to Strike and for Attorney's Fees and Costs Pursuant to C.C.P. § 425.16 (anti-SLAPP) ("Individual Defendants' anti-SLAPP motion"), Six4Three's Memorandum of Points and Authorities in Opposition to Defendants' Special Motions to Strike (anti-SLAPP) ("Six4Three's anti-SLAPP Opposition"), the Declaration of David S. Godkin in Opposition to Defendants' Special Motions to Strike (anti-SLAPP) ("Godkin Declaration") or exhibits thereto, or other Facebook confidential or highly confidential information. For the avoidance of doubt, this includes but is not limited to media organizations and governmental entities, including the Digital, Culture, Media and Sport Committee of the House of Commons ("DCMS Committee"). REQUEST FOR PRODUCTION NO. 2: All communications between Six4Three, including without limitation Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent or representative of Six4Three, and any third party individual or entity regarding the Individual Defendants' anti-SLAPP motion, Six4Three's anti-SLAPP Opposition, the Godkin Declaration or exhibits thereto, or other Facebook confidential or highly confidential information. For the avoidance of doubt, this includes but is not limited to media organizations and governmental entities, including the DCMS Committee. REQUEST FOR PRODUCTION NO. 3: Documents sufficient to show the identity of all individuals or entities with whom Theodore Kramer, Thomas Scaramellino, David Godkin, James Kruzer, and Stuart Gross, or any other agent or representative of Six4Three, discussed the Individual Defendants' anti-SLAPP motion, Six4Three's anti-SLAPP Opposition, the Godkin Declaration or exhibits thereto, or other Facebook confidential or highly confidential information. REQUEST FOR PRODUCTION NO. 4: All emails and attachments exchanged between Mr. Kramer and Damian Collins, or any member or employee of the DCMS Committee or the U.K. Parliament. REQUEST FOR PRODUCTION NO. 5: All logs or other records pertaining to the Six4Three Dropbox account that Mr. Kramer accessed from his laptop, including all available or recoverable information about what documents were uploaded to the account and by whom, what documents were downloaded from the account and by whom, what documents were deleted from the account and by whom, when the account was cached or synched locally and on what devices, and all individuals that had access to the account and when. REQUEST FOR PRODUCTION NO. 6: All emails or other communications amongst and between Mr. Gross or anyone at Gross & Klein, Mr. Godkin or anyone at Birnbaum & Godkin, Mr. Kramer, Mr. Scaramellino, or any other agent, attorney, or individual associated with Six4Three from May 1, 2018 to the present regarding the Individual Defendants' anti-SLAPP motion, Six4Three's anti-SLAPP Opposition, the Godkin Declaration or exhibits thereto, or other Facebook confidential or highly confidential information. For avoidance of doubt, this includes but is not limited to communications relating to contacts with the DCMS Committee, The Guardian, The Observer, or other third parties. 1 2 PROOF OF SERVICE I am a citizen of the United States and resident of the State of California. I am employed in San 3 Francisco County, State of California, in the office of a member of the bar of this Court, at whose 4 direction the service was made. I am over the age of eighteen years, and not a party to the within action. 5 My business address is 217 Leidesdorff Street, San Francisco, CA 94111. . 6 7 8 9 10 On January 9, 2019, I served the following documents in the manner described below: APPENDIX A TO DEFENDANT FACEBOOK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO OPEN DISCOVERY AND TO COMPEL BY ELECTRONIC SERVICE: By electronically mailing a true and correct copy through Durie Tangri's electronic mail system from co1iega@durietangri.com to the email addresses set forth below. 11 On the following part(ies) in this action: 12 Stuart G. Gross GROSS & KLEIN LLP The Embarcadero, Pier 9, Suite 100 San Francisco, CA 94111 sgross@grosskleinlaw.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 David S. Godkin James Kruzer BIRNBAUM & GODKIN, LLP 280 Summer Street Boston, MA 02210 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneys for Plaintiff Six4Three, LLC Donald P. Sullivan Wilson Elser 525 Market Street, 17th Floor San Francisco, CA 94105 donald. sulli van@wilsonelser.com Joyce. Vial pando@wilsonelser.com Dea.Palumbo@wilsonelser.com Attorney for Gross & Klein LLP Jack Russo Christopher Sargent ComputerLaw Group, LLP 401 Florence Street Palo Alto, CA 94301 j russo@computer law. com csargent@computerlaw.com ecf@computerlaw.com Attorney for Theodore Kramer and Thomas Scaramellino (individual capacities) Steven J. Bolotin Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 sbolotin@morrisonmahoney.com Llombard@morrisonmahoney.com James A. Murphy James A. Lass art Thomas P Mazzucco Joseph Leveroni Murphy Pearson Bradley & Feeney 88 Kearny St, 10th Floor San Francisco, CA 94108 JMurphy@MPBF.com j lassart@mp bf. com TMazzucco@MPBF.com JLeveroni@MPBF.com 27 Attorney for Birnbaum & Godkin, LLP 28 APPENDIX A TO FACEBOOK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO OPEN DISCOVERY AND TO COMPEL/ CASE NO. CIV 533328 1 I declare under penalty of perjury under the laws of the United States of America that the 2 foregoing is true and cmTect. Executed on January 9, 2019, at San Francisco, California. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX A TO FACEBOOK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO OPEN DISCOVERY AND TO COMPEL/ CASE NO. CIV 533328