Complaint - CHD v. Facebook et al. (2020-09-10), Doc. 28 — Children's Health Defense v. Facebook Inc
- Date
- 2020-09-10
Summary
Plaintiff Children's Health Defense's withdrawal of consent to stipulation and request for case management and substituted service orders, with a declaration of counsel Roger I. Teich, in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, U.S. District Court for the Northern District of California, filed September 10, 2020 as Document 28. The plaintiff withdraws consent to the stipulations at Dkts. ##23, 24, stating that Facebook counsel's declaration omitted material facts. It asks for a Rule 16(c) order setting a briefing schedule with responses due October 23, 2020, oppositions due December 21, 2020 and replies due January 21, 2021, plus a meet and confer on ESI-retention protocols. It also seeks orders under Fed. R. Civ. Pro. 4(f)(3) for substituted electronic service on defendants Zuckerberg and Science Feedback through Facebook's counsel.
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Case 3:20-cv-05787-SI Document 28 Filed 09/10/20 Page 1 of 8
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, Case No. 20-cv-05787-SI
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Plaintiff, WITHDRAWAL OF CONSENT TO
20 STIPULATION AND REQUEST FOR
21 v. CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS;
22 FACEBOOK, INC., et al., , ROGER TEICH DECLARATION
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Defendants. Fed. R. Civ. Pro. 4(f)(3), 16(c)(2)
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1 REQUEST FOR 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 Filed 09/10/20 Page 2 of 8
1 There’s an old saying that “short honeymoons are better than no honeymoons, but long
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honeymoons are best of all.” Yet, even by the standard of shotgun marriages, the “honeymoon”
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between opposing counsel in this case was exceptionally short.
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5 In light of the inaccuracy of Facebook defense counsel’s declaration, plaintiff withdraws
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its consent to the Civil Local Rule 6-2(A) Stipulation [Dkt. #24]. Instead, plaintiff requests
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this Court issue an Order under Fed. R. Civ. Pro. 16(c) to manage this potentially difficult
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9 action, and facilitate in other ways its just, speedy, and inexpensive disposition. Plaintiff also
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seeks an order for substituted electronic service of defendants Zuckerberg and Science
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Feedback, a French organization, through Facebook/Zuckerberg’s counsel under Fed. R. Civ.
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13 Pro. 4(f)(3).
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A. Defects in Facebook Counsel’s Declaration
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On September 4 and 9, 2020, plaintiff’s counsel conditioned their discussions of
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17 reciprocal 45-day extensions of defendants’ response to the Complaint on three requests: (1)
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the four U.S. defendants file a unitary, if oversized, motion to dismiss, rather than four
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separate, but overlapping, briefs; (2) Facebook’s counsel accept substituted electronic service
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21 on behalf of its separate client, Mark Zuckerberg, who is joined individually, and respond
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regarding substituted service on Science Feedback, a related French organization, and all U.S.
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defendants’ counsel accept electronic service of the Court’s assignment and case management
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25 orders [Dkts. ##14, 15]; (3) Facebook’s counsel agree to meet and confer regarding ESI-
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retention protocols, and agree not to apply newly-amended Section 3.2 of Facebook’s Terms of
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Service to Plaintiff during this litigation since that amendment postdates the lawsuit, and its
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2 REQUEST FOR 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 Filed 09/10/20 Page 3 of 8
1 application would represent retaliatory misconduct and potential spoliation. To date,
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Facebook’s counsel has responded only that they will “get back to” plaintiff’s counsel regarding
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these requests, and that a meet and confer regarding ESI-retention is “premature.” (Teich Dec.
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5 ¶¶2-3.)
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Facebook counsel’s declaration is inaccurate in omitting these material facts. See Dkt.
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#24-1 at ¶¶3-5. Accordingly, plaintiff withdraws its consent to the Stipulations filed yesterday
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9 [Dkts. ##23, 24.] However, with this additional explanation of the good cause basis for
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plaintiff’s request for 69-days to respond to four (or five, see infra) defendants’ separate
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motions to dismiss, plaintiff agrees to the proposed briefing schedule.
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13 B. Request for Rule 16(c) Order
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Fed. R. Civ. Pro. 16(c)(2) allows for pretrial management of civil cases. Specifically,
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sections 16(c)(2)(A), (L), (N) and (P) provide as follows:
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17 16 (c) Attendance and Matters for Consideration at a Pretrial
Conference.
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...
19 (2) Matters for Consideration. At any pretrial conference, the court may
consider and take appropriate action on the following matters:
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21 (A) formulating and simplifying the issues, and eliminating frivolous
claims or defenses;
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....
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(L) adopting special procedures for managing potentially difficult or
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protracted actions that may involve complex issues, multiple parties,
25 difficult legal questions, or unusual proof problems;
....
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27 (P) facilitating in other ways the just, speedy and inexpensive disposition
of the action.
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3 REQUEST FOR 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 Filed 09/10/20 Page 4 of 8
1 These provisions grant the Court broad authority to manage this case, and determine the
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order of issues for resolution, and ways to eliminate frivolous defenses, and facilitate a just,
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speedy, and inexpensive resolution. See Avila v. Willits Envtl. Remediation Trust, 633 F. 3d
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5 828, 833-834 (9th Cir. 2011) (quoting Rule 16(c)(2)(L)) (Rule 16, which grants district court
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judges “broad discretion . . . to adopt ‘special procedures for managing potentially difficult or
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protracted actions that may involve complex issues, multiple parties, difficult legal questions,
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9 or unusual proof problems.’”).
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Plaintiff requests a Rule 16(c) order which mandates this briefing schedule for all
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defendants’ response to the Complaint:
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13 1. All defendants shall answer, move, or otherwise respond to the Complaint by
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October 23, 2020.
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2. Plaintiff’s Opposition to any Rule 12 motions or other responses filed by Defendants
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17 shall be due by December 21, 2020.
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3. Defendants’ Replies to Plaintiff’s Opposition shall be due by January 21, 2021.
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4. Additionally, the Order should require that opposing lead counsel for Facebook meet
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21 and confer concerning ESI-retention protocols, and the application or non-
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application of amended Section 3.2 of Facebook’s Terms to plaintiff within five-days
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of issuance of the Order.
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25 C. Substituted Electronic Service on Defendant Zuckerberg
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On or about August 19, 2020, plaintiff attempted service on defendant Zuckerberg by
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leaving a copy of the Summons and Complaint and related documents with security personnel
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4 REQUEST FOR 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 Filed 09/10/20 Page 5 of 8
1 at Facebook’s corporate headquarters within this district. Zuckerberg’s counsel has reserved the
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right to challenge defects in this service. [Dkt. #23 at 1 n.1; Dkt. #24 at 1 n.1.] Zuckerberg’s
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counsel refused to accept substituted electronic service, even of this Court’s assignment and
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5 case management orders, writing vaguely that he would “get back to us.” (Teich Dec. ¶4.)
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Plaintiff previously received an estimate that effecting personal service on Zuckerberg
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himself would likely cost tens of thousands of dollars because, inter alia, “he owns numerous,
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9 well-fortified compounds and islands around the US/world and is cautious to the point that
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some would call him ‘paranoid.’ He likely has a large security detail surrounding him at all
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times. Serving him personally will require surveillance with multiple operatives on multiple
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13 fronts and state lines and will likely cost tens of thousands of dollars, if not more.” (Id. at ¶5.)
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Facebook’s counsel has entered four separate appearances in this case on behalf of
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Zuckerberg individually. (Dkts. ## 19, 25-27.) Accordingly, and in light of the potential
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17 expense and delay of effecting personal service on Zuckerberg, plaintiff seeks an order
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pursuant to Fed. Rule Civ. Pro. 4(f)(3) authorizing substituted electronic service of process of
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the Summons and Complaint, and related documents, including this court’s assignment and
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21 case management conference orders, through Zuckerberg’s retained counsel. Rule 16(c)(2)(P)
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also warrants issuance of the order in the interest of a“just, speedy, and inexpensive resolution”
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of this action.
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D. Substituted Electronic Service on Defendant Science Feedback
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5 REQUEST FOR 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 Filed 09/10/20 Page 6 of 8
1 Counsel has identified defendant Science Feedback’s current address as 16 rue Furtado
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Heine, 75014 Paris, France, and Emmanuel Vincent as its Founder and Director. Neither has a
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publicly-available email address, and plaintiff’s foreign process agent cannot establish without
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5 surveillance whether anyone is physically present at that address to accept the documents.
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Facebook counsel have not agreed to accept electronic substituted service on Science
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Feedback of the English and French-translated Summons and Complaint and related
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9 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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actions and events which give rise to the case. In subsequent emails, Facebook’s counsel has
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13 not addressed the issue or changed its position. (Teich Dec. ¶6.)
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“Courts in the Ninth Circuit have ordered service through United States-based counsel
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even when counsel has refused to accept service on the ground that they do not represent the
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17 international defendants.” Prods. & Ventures Int'l v. Axus Stationary (Shanghai) Ltd., 2017
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U.S. Dist. LEXIS 55430 (N.D. Cal. Apr. 11, 2017). Further, courts in this district have found
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that service by email is reasonably calculated to provide actual notice. See, e.g. Facebook, Inc.
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21 v. Banana Ads, LLC, 2012 U.S. Dist. LEXIS 42160 (N.D. Cal. Mar. 27, 2012) (finding
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service on foreign defendants via email was not prohibited by international agreement). In
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Facebook, the court reached this conclusion by explaining that the foreign defendants were
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25 involved in commercial internet activities, the foreign defendants relied on electronic
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communications to operate their businesses and plaintiff had valid email addresses for them,
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and that the plaintiff demonstrated it had made attempts to serve the defendants at physical
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6 REQUEST FOR 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 Filed 09/10/20 Page 7 of 8
1 addresses that proved unsuitable for service. Id. Here, as in that case, Science Feedback is
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involved in commercial internet activities, namely running a “fact-checker” platform which is
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used by Facebook to create opposition content on and concerning plaintiff’s Facebook page,
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5 and which content lies at the heart of this lawsuit. And, as in Facebook, Science Feedback
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relies on electronic communications to operate its business, though apparently neither the
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organization nor its director maintains a valid publicly-available email address. (Teich Dec.
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9 ¶6.) Further, as in Facebook, and Cal. Beach Co., LLC v. Exqline, Inc., 2020 U.S. Dist.
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LEXIS 119027 (N.D. Cal. July 7, 2020), Science Feedback’s current physical address may be
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unsuitable for service at this time and for the foreseeable future due to COVID-19.
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13 Accordingly, substituted electronic service of Science Feedbackc thorugh Facebook’s U.S.
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counsel comports with due process requirements, and permits the case to proceed
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expeditiously with completed service on all defendants, and an adequate opportunity for all of
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17 them to respond according to the schedule outlined above.
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Dated: September 10, 2020 Respectfully submitted,
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ROBERT F. KENNEDY, JR.
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Founder and Chairman, Children’s Health
23 Defense
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MARY S. HOLLAND
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General Counsel, Children’s Health Defense
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7 REQUEST FOR 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 Filed 09/10/20 Page 8 of 8
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ROGER I. TEICH
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3 Counsel for Plaintiff
Children’s Health Defense
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8 REQUEST FOR 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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