Chd v. Facebook Et Al
- Date
- 2020-09-24
Summary
Exhibit G to a filing in CHD v. Facebook, et al., No. 3:20-cv-05787-SI, entered as Document 43-11 on September 24, 2020. The 14-page exhibit reproduces an email chain between plaintiff's counsel Roger Teich and WilmerHale counsel Sonal N. Mehta and Ari Holtzblatt, together with a letter dated September 23, 2020 requesting a meet and confer within seven days. The emails discuss stipulations extending the deadline to respond to the complaint to October 23, 2020, an opposition deadline of December 7, 2020 and defendants' replies by January 7, 2021, acceptance of service by email for Mark Zuckerberg, and the November 20 case management conference. The letter asks Facebook to stipulate that it will not apply its updated Terms of Service § 3.2, effective October 1, 2020, to Children's Health Defense during the litigation, and raises ESI-retention protocols and document preservation.
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Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 1 of 14
Exhibit G
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 2 of 14
From: rteich@juno.com
To: Mehta, Sonal
Cc: Holtzblatt, Ari; mary.holland@childrenshealthdefense.org; Jennings, Molly; Schultz, Allison
Subject: RE: CHD v. Facebook, et al.
Date: Wednesday, September 23, 2020 8:52:56 PM
Attachments: FACEBOOK - LETTER TO S. MEHTA RE MEET AND CONFER REQUEST (FINAL) - 09-23-2020.pdf
EXTERNAL SENDER
Sonal,
See attached meet and confer letter.
Sincerely,
Roger Teich
---------- Original Message ----------
From: "Holtzblatt, Ari" <Ari.Holtzblatt@wilmerhale.com>
To: "rteich@juno.com" <rteich@juno.com>
Cc: "Mehta, Sonal" <Sonal.Mehta@wilmerhale.com>, "clocicero@tlolawfirm.com"
<clocicero@tlolawfirm.com>, "kvick@jassyvick.com" <kvick@jassyvick.com>,
"mary.holland@childrenshealthdefense.org"
<mary.holland@childrenshealthdefense.org>, "Jennings, Molly"
<Molly.Jennings@wilmerhale.com>, "Schultz, Allison"
<Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
Date: Mon, 14 Sep 2020 19:19:20 +0000
Roger,
Before we schedule a call to discuss the update to Section 3.2 of Facebook’s Terms of Service,
it would help us if you could explain more specifically what about the update concerns you.
In particular, could you explain why you believe CHD could run afoul of the new policy or
why CHD otherwise fears that Facebook is likely to enforce this particular policy against
CHD?
Thank you,
Ari Holtzblatt | WilmerHale
1875 Pennsylvania Avenue NW
Washington, DC 20006 USA
+1 202 663 6964 (t)
+1 202 663 6363 (f)
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 3 of 14
ari.holtzblatt@wilmerhale.com
Please consider the environment before printing this email.
This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be
privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to
postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you.
For more information about WilmerHale, please visit us at http://www.wilmerhale.com.
From: Holtzblatt, Ari
Sent: Thursday, September 10, 2020 7:09 PM
To: 'rteich@juno.com' <rteich@juno.com>
Cc: Mehta, Sonal <Sonal.Mehta@wilmerhale.com>; 'clocicero@tlolawfirm.com'
<clocicero@tlolawfirm.com>; 'kvick@jassyvick.com' <kvick@jassyvick.com>;
'mary.holland@childrenshealthdefense.org' <mary.holland@childrenshealthdefense.org>;
Jennings, Molly <Molly.Jennings@wilmerhale.com>; Schultz, Allison
<Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
Roger,
As I promised I would do when we spoke and in my follow up email yesterday, I have spoken
to my clients about electronic service. WilmerHale agrees to accept service by email of the
Complaint and Summons (and related documents) for Mark Zuckerberg. WilmerHale also
agrees to accept service by email of the Order reassigning the case to Judge Illston (Dkt #14),
and the Order re Initial Case Management Conference (Dkt #15).
With respect to the two phone conversations that you have asked to schedule, I am still
coordinating with my client but I will get back to you once I have finished talking to my client
about them.
Ari Holtzblatt | WilmerHale
1875 Pennsylvania Avenue NW
Washington, DC 20006 USA
+1 202 663 6964 (t)
+1 202 663 6363 (f)
ari.holtzblatt@wilmerhale.com
Please consider the environment before printing this email.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 4 of 14
This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be
privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to
postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you.
For more information about WilmerHale, please visit us at http://www.wilmerhale.com.
From: Holtzblatt, Ari
Sent: Wednesday, September 9, 2020 5:07 PM
To: 'rteich@juno.com' <rteich@juno.com>
Cc: Mehta, Sonal <Sonal.Mehta@wilmerhale.com>; clocicero@tlolawfirm.com;
kvick@jassyvick.com; mary.holland@childrenshealthdefense.org; Jennings, Molly
<Molly.Jennings@wilmerhale.com>; Schultz, Allison <Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
Roger,
We will put the stipulations on file and I will get back to you on your requests that we accept
service. I will also get back to you about the two phone conversations that you have asked to
schedule once I speak to my client about them. However, I must correct one item in your
email, which does not accurately summarize our call. We did not agree to calendar a call
regarding ESI-retention protocols at this time. As I told you, before agreeing to schedule any
such call, we will need to confer with our client. As I also explained, my preliminary view is
that such a call is premature so far in advance of the CMC conference. And, of course, not
every defendant has even been served at this point. In my experience, any meet-and-confer
regarding CMC topics is ordinarily held two weeks or so before the CMC statement is due to
be filed (which, in this case, is November 13, for the November 20 conference).
Regards,
Ari Holtzblatt | WilmerHale
1875 Pennsylvania Avenue NW
Washington, DC 20006 USA
+1 202 663 6964 (t)
+1 202 663 6363 (f)
ari.holtzblatt@wilmerhale.com
Please consider the environment before printing this email.
This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be
privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 5 of 14
postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you.
For more information about WilmerHale, please visit us at http://www.wilmerhale.com.
From: rteich@juno.com <rteich@juno.com>
Sent: Wednesday, September 9, 2020 4:14 PM
To: Holtzblatt, Ari <Ari.Holtzblatt@wilmerhale.com>
Cc: Mehta, Sonal <Sonal.Mehta@wilmerhale.com>; clocicero@tlolawfirm.com;
kvick@jassyvick.com; mary.holland@childrenshealthdefense.org; Jennings, Molly
<Molly.Jennings@wilmerhale.com>; Schultz, Allison <Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
EXTERNAL SENDER
Ari,
You have my consent to file these two Stipulations and [Proposed] Order.
Separately, I ask you to confirm whether Wilmer Hale will or will not accept
service of the Complaint and Summons (and related documents) on behalf
of your client Mark Zuckerberg.
Also, I ask all counsel to confirm whether your will or will not accept
electronic service of the attached Order reassigning the case to Judge Illston
(Dkt #14), and Order re Initial Case Management Conference (Dkt #15),
thus obviating the need and expense of separate service.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 6 of 14
Earlier I suggested a follow-up phone conference for next Wednesday,
September 16, at 11:30am PT to discuss amended Section 3.2, and we agreed
to calendar a separate call with Poynter/Politifact counsel to discuss (at
least initially) the appropriate ESI-retention protocols for this case.
Please confirm the September 16 phone call or suggest another day/time
you would prefer for the Section 3.2 discussion, and another day/time for
the initial ESI-related discussion.
I have outlined why I believe both these discussions should be held before
October 1, and I would appreciate hearing your views on scheduling these
initial discussions.
Sincerely,
Roger Teich
---------- Original Message ----------
From: "Holtzblatt, Ari" <Ari.Holtzblatt@wilmerhale.com>
To: "rteich@juno.com" <rteich@juno.com>, "Mehta, Sonal"
<Sonal.Mehta@wilmerhale.com>
Cc: "clocicero@tlolawfirm.com" <clocicero@tlolawfirm.com>, "kvick@jassyvick.com"
<kvick@jassyvick.com>, "mary.holland@childrenshealthdefense.org"
<mary.holland@childrenshealthdefense.org>, "Jennings, Molly"
<Molly.Jennings@wilmerhale.com>, "Schultz, Allison" <Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
Date: Wed, 9 Sep 2020 19:27:34 +0000
Roger,
Attached are revised versions of the two stipulations and the proposed order, along with
redlines against the versions that you sent us. Please confirm that we can attest to your
signature on the two stipulations.
Regards,
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 7 of 14
Ari
From: rteich@juno.com <rteich@juno.com>
Sent: Wednesday, September 9, 2020 12:23 PM
To: Mehta, Sonal <Sonal.Mehta@wilmerhale.com>
Cc: clocicero@tlolawfirm.com; kvick@jassyvick.com;
mary.holland@childrenshealthdefense.org; Holtzblatt, Ari <Ari.Holtzblatt@wilmerhale.com>;
Jennings, Molly <Molly.Jennings@wilmerhale.com>; Schultz, Allison
<Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
EXTERNAL SENDER
Sonal,
Attached, our revisions in Track Changes to the two Stipulations,
[Proposed] Order, and your declaration. You have our consent to file these
pleadings only as revised.
I look forward to working with you, too. In normal times, it would still be
difficult to file jointly the same day if we receive the drafts at or after the
close of business eastern time where Children's Health Defense and its
general counsel are located. And, these are not normal times. I'm in
Mendocino County right now.
We will not agree to continue the November 20, 2020 case management
conference at this time. In particular, we have concerns about ESI retention
and protocols in this case for which the Local Rules contemplate a specific
meet and confer, and stipulation.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 8 of 14
We also believe that such stipulation should commit your clients not to
apply amended Section 3.2 of Facebook's Terms of Service (effective October
1, 2020) to Children's Health Defense during the pendency of this litigation,
for reasons we can discuss at the ESI-meet and confer.
I look forward to discussing this matter with you at 11:30am today.
best,
Roger Teich
---------- Original Message ----------
From: "Mehta, Sonal" <Sonal.Mehta@wilmerhale.com>
To: "rteich@juno.com" <rteich@juno.com>, "clocicero@tlolawfirm.com"
<clocicero@tlolawfirm.com>
Cc: "kvick@jassyvick.com" <kvick@jassyvick.com>,
"mary.holland@childrenshealthdefense.org" <mary.holland@childrenshealthdefense.org>,
"Holtzblatt, Ari" <Ari.Holtzblatt@wilmerhale.com>, "Jennings, Molly"
<Molly.Jennings@wilmerhale.com>, "Schultz, Allison" <Allison.Schultz@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
Date: Tue, 8 Sep 2020 22:23:12 +0000
Roger,
Attached, please find the stipulations we discussed last Friday, extending the deadline
responses to the complaint to October 23, and setting a further briefing schedule including a
deadline of January 7, 2021, for defendants’ replies. (The local rules treat motions for
extensions of time to respond to a complaint differently from other extensions, so we have to
file two separate stipulations). We would like to get these on file today and appreciate your
confirmation that we have permission to sign for you.
Also, given that the motion(s) to dismiss won’t be fully briefed until January 2021, we have
proposed including a stipulation continuing the November 20 case management conference for
the time being.
We can join a call for 30 minutes at 11:30 am PT tomorrow. Speak with you then.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 9 of 14
Best,
Sonal N. Mehta | WilmerHale
950 Page Mill Road
Palo Alto, CA 94304 USA
+1 650 600 5051 (t)
+1 650 858 6100 (f)
sonal.mehta@wilmerhale.com
From: rteich@juno.com <rteich@juno.com>
Sent: Friday, September 4, 2020 2:01 PM
To: clocicero@tlolawfirm.com
Cc: kvick@jassyvick.com; mary.holland@childrenshealthdefense.org; Mehta, Sonal
<Sonal.Mehta@wilmerhale.com>
Subject: RE: CHD v. Facebook, et al.
EXTERNAL SENDER
Hi All,
This will memorialize our phone call just now in which we agreed to a
schedule in which (1) your client defendants will file responses to the
Complaint by Friday, October 23, 2020; and (2) plaintiff will file its
opposition to any motion to dismiss by Monday, December 7, 2020, subject
to plaintiff's good cause for any further extension.
For our part, this agreement assumes that Sonal will also be representing
Mark Zuckerberg individually, and that his response and plaintiff's
responsive pleading (if any) will be governed by the stipulation. Please
confirm at your early convenience.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 10 of 14
We think it would be useful to hold another conference call next week to
discuss a few early case management issues which are likely to arise. There
is also a separate issue concerning Facebook only which we wish to take up
with Sonal , perhaps at the end of the call.
How is Wednesday, September 9, at 11:30am PT/ 2:30 pm ET for a (no more
than) 30-minute discussion?
Here is dial-in we can use --
Dial-In Number: 515-603-3171
Access Code: 1045032#
Sincerely,
Roger Teich
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 11 of 14
Roger I. Teich
Attorney at Law
290 Nevada Street
San Francisco, California 94110
Telephone: (415) 948-0045
Email: rteich@juno.com
September 23, 2020
BY EMAIL ONLY
Ms. Sonal N. Mehta
WilmerHale, LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306
Re: CHD v. Facebook, et al., 3:20-cv-05787-SI
Request for Meet and Confer
Dear Sonal,
I write to request a meet and confer within the next seven days to discuss two urgent
matters in the above-entitled action.
1. Updated § 3.2
On August 17, 2020, Children’s Health Defense (“CHD”) filed this action against the
Facebook, et al., in the district court. On or about August 31, 2020, CHD received notice
that Facebook intends to modify the parties’ contractual terms of service §3.2, “effective
October 1, 2020,” to read: “We also can remove or restrict access to your content,
services, or information if we determine that doing so is reasonably necessary to avoid or
mitigate adverse legal or regulatory impacts to Facebook.”
On September 9, 2020, I asked you to stipulate that Facebook will not seek to apply its
purported amendment of §3.2 to CHD during the pendency of this litigation. I also
expressed that CHD has concerns about Facebook’s ESI retention protocols in this case
for which the Local Rules contemplate a specific meet and confer. On September 14,
2020, your colleague Ari Holtzblatt responded that “[b]efore we schedule a call to discuss
the update to Section 3.2 of Facebook’s Terms of Service, it would help us if you could
explain more specifically what about the update concerns you. In particular, could you
explain why you believe CHD could run afoul of the new policy or why CHD otherwise
fears that Facebook is likely to enforce this particular policy against CHD? “
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 12 of 14
Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 2 of 4
In its First Cause of Action, CHD alleges that Facebook, acting with significant
encouragement from and in close consultation with governmental agencies and actors,
denied CHD’s First Amendment speech rights and Fifth Amendment property rights inter
alia, by censoring, labeling, or blocking CHD content from users,. (Dkt. #1 at 67-73.)
The Court is thus asked to adjudicate whether Facebook should be considered a “state
actor” for purposes of the claim in light of its alleged joint action with the federal
government. Within just two weeks of service of the lawsuit alleging this claim,
Facebook recast §3.2 so that, as of October 1, 2020, it can remove or restrict access to
content, services, or information “to avoid or mitigate adverse legal or regulatory impacts
to Facebook.” (Updated §3.2.)
We believe that any application of §3.2 to CHD during the pendency of this lawsuit will
constitute unlawful retaliation for CHD’s protected conduct in filing the action. Close
proximity in time between a protected activity and an adverse action alone will establish
a prima face case of retaliatory causation. Facebook’s amendment of §3.2 so close on the
heels of CHD’s lawsuit will be viewed with great suspicion by the Court as evidence that
Facebook is retaliating for filing the action. Since Facebook has not removed CHD
content under its current §3.2, we doubt that Facebook could rebut the inference that it
would have done so on October 1 or thereafter in the absence of CHD’s protected activity
in filing the lawsuit. Absent a stipulation which removes this issue from doubt, CHD can
show a sufficient chilling effect from the bare terms of amended §3.2 to warrant
emergency relief. Hopefully, resort to court will not be necessary.
2. ESI-Retention Protocols
As you know, the Court expects cooperation on issues relating to the preservation,
collection, search, review, and production of ESI. The Court emphasizes the particular
importance of cooperative exchanges of information at the earliest possible stage of
discovery, including (but not exclusively) during the parties’ Fed. R. Civ. P. 26(f)
conference. Moreover, parties are not required to use preservation letters to notify an
opposing party of their preservation obligation. See Northern District ESI Guideline 1.02,
2.01(c); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (litigants
are under a duty to preserve “what [they know], or should know, is relevant to the action,
is reasonably calculated to lead to the discovery of admissible evidence, is reasonably
likely to be requested during discovery and/or is the subject of a pending discovery
request.”).
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 13 of 14
Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 2 of 4
We maintain that Facebook’s preservation obligation requires that it interdict and
suspend any document destruction programs, such as ongoing erasures of e-mails,
voicemails, and other electronically-recorded material, and specifically preserve:
(1) All design documents for all systems related to “misinformation,” censorship,
and boosting/reduction of traffic, including boosting sources deemed
“authoritative”;
(2) All related internal employee communications;
(3) All related internal tracking systems;
(4) All records for deployment of those designs;
(5) All web traffic measurements for CHD, CDC, and WHO;
(6) All internal employee communications regarding “misinformation” strategies,
including communications with third-parties, external providers, and/or
government/public health officials;
(7) All Chan-Zuckerberg Initiative and/or CZ-Biohub internal documents
concerning vaccine strategy and revenue projections, and partnerships;
(8) All internal documents regarding 5G development and revenue projections;
(9) All internal weblog dialogue discussion groups concerning “misinformation,”
“vaccines,” and “5G”;
(10) All internal documents concerning GlaxoSmithKline (“GSK”), Sanofi S.A.
(“Sanofi”), Pfizer, and Merck & Co. (“Merck”), pharmaceutical company
partnerships, strategic initiatives, and revenue projections; and
(11) All source code for the relevant systems described above.
While not exhaustive, this list is intended to inform you of the types of documents that
are potentially relevant to the litigation, and should be preserved.
Case 3:20-cv-05787-SI Document 43-11 Filed 09/24/20 Page 14 of 14
Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 4 of 4
However, given the opaqueness of Facebook’s policy statements, we cannot tell whether
any of this or other material evidence in Facebook’s possession will automatically be
destroyed or become inaccessible if Facebook implements its amended §3.2 to CHD on
or after October 1, 2020, or otherwise. This situation urgently needs to be addressed.
Assuming we can reach an agreement that obviates the potential for emergency relief
referenced above, and concomitant expedited discovery and trial dates, we are willing to
continue the case management conference and discovery until your motion to dismiss is
resolved, provided also that we reach an agreement on ESI-retention protocols for the
information referenced above which clearly bears on CHD’s claims for relief.
Please let me know your availability to meet and confer by telephone by close of business
next Wednesday, September 30, 2020. I look forward to speaking with you then.
Sincerely,
Roger Teich
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