Complaint - CHD v. Facebook et al. (2020-09-10), Doc. 28-1 — Children's Health Defense v. Facebook Inc
- Date
- 2020-09-10
Summary
A declaration of Roger I. Teich, counsel for plaintiff Children's Health Defense, filed September 10, 2020 as Document 28-1 in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California. It supports the plaintiff's withdrawal of consent to stipulations [Dkts. ##23-24] extending defendants' response time, and requests a case management order under Rule 16(c)(2) and orders for substituted electronic service under Rule 4(f)(3). The declaration states that Facebook's counsel had not answered the plaintiff's conditions on consolidated briefing, electronic service and ESI-retention protocols. It asks for substituted electronic service on defendants Mark Zuckerberg and Science Feedback, describing attempted service at Facebook's headquarters and the difficulty of serving the French organization.
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Case 3:20-cv-05787-SI Document 28-1 Filed 09/10/20 Page 1 of 5
1 ROGER I. TEICH
California State Bar No. 147076
2 290 Nevada Street
San Francisco, CA 94110
3 Telephone: (415) 948-0045
4 E-Mail Address: rteich@juno.com
5 ROBERT F. KENNEDY, JR.
MARY HOLLAND
6 Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
7 Peachtree City, GA 30269
8 Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
9 (Subject to pro hac vice admission)
10 Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE
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12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
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18 CHILDREN’S HEALTH DEFENSE,
19 Case No. 20-cv-05787-SI
Plaintiff,
20 DECLARATION OF ROGER TEICH IN
21 v. SUPPORT OF WITHDRAWAL OF
CONSENT TO STIPULATION AND
22 FACEBOOK, INC., et al., , REQUEST FOR RULE 4(F)(3), 16(C)(2)
23 ORDERS
Defendants.
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1 ROGER TEICH DECLARATION RE:
RULE 4(f)(3) and 16(c)(2) ORDERS
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
Case 3:20-cv-05787-SI Document 28-1 Filed 09/10/20 Page 2 of 5
1 DECLARATION OF ROGER I. TEICH
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I, Roger I. Teich, declare as follows:
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1. I am a member of the State Bar of California and the Bar of the United States
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5 District Court for the Northern District of California. On August 17, 2020, I filed the verified
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Complaint in this civil action. This declaration is made in support of plaintiff’s withdrawal of
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consent to Stipulations [Dkts. ##23-24], and requests for case management order (Fed. R. Civ.
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9 Pro. 16(c)) and order for substituted electronic service of defendants Mark Zuckerberg and
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Science Feedback (Fed. R. Civ. Pro. 4(f)(3).) If called as a witness, I could and would testify
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competently to the facts herein, except as to those matters stated on information and belief.
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A. Defects in Facebook Counsel’s Declaration
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2. Both in our phone discussions and email communications on September 4 and 9,
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17 2020, Mary S. Holland, general counsel for Children’s Health Defense, and I conditioned our
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discussion regarding reciprocal 45-day extensions of defendants’ response to the Complaint on
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three requests: (1) the four U.S. defendants file a unitary, if oversized, motion to dismiss,
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21 rather than four separate, but overlapping, briefs; (2) Facebook’s counsel accept substituted
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electronic service on behalf of its separate client, Mark Zuckerberg, who is joined
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individually, and respond regarding substituted service on Science Feedback, a related French
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25 organization, and all U.S. defendants’ counsel accept electronic service of the Court’s
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assignment and case management orders [Dkts. ##14, 15]; (3) Facebook’s counsel agree to
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meet and confer regarding ESI-retention protocols, and agree not to apply newly-amended
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2 ROGER TEICH DECLARATION RE:
RULE 4(f)(3) and 16(c)(2) ORDERS
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
Case 3:20-cv-05787-SI Document 28-1 Filed 09/10/20 Page 3 of 5
1 Section 3.2 of Facebook’s Terms of Service to Plaintiff during this litigation since that
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amendment postdates the lawsuit, and its application would represent retaliatory misconduct
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and potential spoliation.
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5 3. To date, Facebook’s counsel has responded only that they will “get back to” us at
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some future indefinite time regarding these requests, and that a meet and confer regarding
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ESI-retention is “premature.” I believe Paragraphs 3-5 of Facebook counsel’s declaration are
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9 inaccurate in omitting these material facts. See Dkt. #24-1 at ¶¶3-5. Accordingly, plaintiff
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withdraws its consent to the Stipulations filed yesterday [Dkts. ##23, 2], while requesting that
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the Court adopt the same briefing schedule in a sua sponte order. Additionally, plaintiff
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13 requests an Order requiring that opposing lead counsel meet and confer concerning ESI-
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retention protocols, and the application or non-application of amended Section 3.2 of
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Facebook’s Terms to plaintiff within five-days of issuance of the Order.
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B. Substituted Electronic Service on Defendant Zuckerberg
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4. On information and belief, on or about August 19, 2020, plaintiff attempted
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21 service on defendant Zuckerberg by leaving a copy of the Summons and Complaint and
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related documents with security personnel at Facebook’s corporate headquarters within this
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district. Zuckerberg’s counsel has reserved the right to challenge defects in this service. [Dkt.
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25 #23 at 1 n.1; Dkt. #24 at 1 n.1.] Zuckerberg’s counsel refused to accept substituted electronic
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service, even of this Court’s assignment and case management orders, writing vaguely that he
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would “get back to us.”
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3 ROGER TEICH DECLARATION RE:
RULE 4(f)(3) and 16(c)(2) ORDERS
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
Case 3:20-cv-05787-SI Document 28-1 Filed 09/10/20 Page 4 of 5
1 5. I previously received an estimate from a San Franciso-based private investigator
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that effecting personal service on Zuckerberg himself would likely cost tens of thousands of
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dollars because, inter alia, “he owns numerous, well-fortified compounds and islands around
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5 the US/world and is cautious to the point that some would call him ‘paranoid.’ He likely has a
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large security detail surrounding him at all times. Serving him personally will require
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surveillance with multiple operatives on multiple fronts and state lines and will likely cost
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9 tens of thousands of dollars, if not more”
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C. Substituted Electronic Service on Defendant Science Feedback
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13 6. Plaintiff’s foreign process agent has identified defendant Science Feedback’s
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current address as 16 rue Furtado Heine, 75014 Paris, France, and Emmanuel Vincent as its
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Founder and Director. On information and belief, neither the organization nor its director
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17 maintains a publicly-available email address, and plaintiff’s foreign process agent cannot
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establish without surveillance whether anyone is physically present at that address to accept
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the documents. Facebook counsel have not agreed to accept electronic substituted service on
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21 Science Feedback of the English and French-translated Summons and Complaint and related
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documents. Indeed, Facebook’s counsel purported not to know who or what Science Feedback
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is, notwithstanding its contractual privity with Facebook, and its coordinated role in the
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25 actions and events which give rise to the case. In subsequent emails, Facebook’s counsel has
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not addressed the issue or revised its position.
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4 ROGER TEICH DECLARATION RE:
RULE 4(f)(3) and 16(c)(2) ORDERS
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
Case 3:20-cv-05787-SI Document 28-1 Filed 09/10/20 Page 5 of 5
1 I declare under penalty of perjury under the laws of the United States that the foregoing
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is true and correct to the best of my knowledge and that this declaration was executed in
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Elk, California on September 10, 2020.
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7 ROGER I. TEICH
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Counsel for Plaintiff
9 Children’s Health Defense
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5 ROGER TEICH DECLARATION RE:
RULE 4(f)(3) and 16(c)(2) ORDERS
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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