Substituted Service Orders

Date: 2020-09-24

Summary

Defendants' opposition to the plaintiff's request for case management and substituted service orders 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, filed September 24, 2020 as Document 43. Counsel for Facebook, Inc. and Mark Zuckerberg and for The Poynter Institute for Media Studies, Inc. and PolitiFact argue that the requests for a briefing schedule and for substitute electronic service on Mr. Zuckerberg are moot. They argue that an order compelling an expedited meet-and-confer is unnecessary and that serving foreign defendant Science Feedback through Facebook's counsel would violate due process. The filing also disputes the plaintiff's account of the conditions placed on its consent to the stipulations and asks the Court to deny the Rule 16(c) and Rule 4(f) orders.

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Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 1 of 7

1 SONAL N. MEHTA (SBN 222086) KEVIN L. VICK (SBN 220738)
Sonal.Mehta@wilmerhale.com kvick@jassyvick.com
2 WILMER CUTLER PICKERING JASSY VICK CAROLAN LLP
HALE AND DORR LLP 800 Wilshire Blvd.
3 2600 El Camino Real, Suite 400 Suite 800
Palo Alto, California 94306 Los Angeles, California 90017
4 Telephone: (650) 858-6000 Telephone: (310) 870-7048
Facsimile: (650) 858-6100 Facsimile: (310) 870-7010
5
ARI HOLTZBLATT (pro hac vice) CAROL JEAN LOCICERO (pro hac vice)
6 Ari.Holtzblatt@wilmerhale.com clocicero@tlolawfirm.com
MOLLY M. JENNINGS (pro hac vice) MARK R. CARAMANICA (pro hac vice)
7 Molly.Jennings@wilmerhale.com mcaramanica@tlolawfirm.com
ALLISON SCHULTZ (pro hac vice) THOMAS & LOCICERO
8 Allison.Schultz@wilmerhale.com 601 South Boulevard
WILMER CUTLER PICKERING Tampa, Florida 33606
9 HALE AND DORR LLP Telephone: (813) 984-3060
1875 Pennsylvania Ave, NW Facsimile: (813) 984-3070
10 Washington, DC 20006
Telephone: (202) 663-6000 DANIELA B. ABRATT (pro hac vice)
11 Facsimile: (202) 63-6363 dabratt@tlolawfirm.com
THOMAS & LOCICERO
12 Attorneys for Defendants 915 Middle River Drive, Suite 309
FACEBOOK, INC. and Fort Lauderdale, Florida 33304
13 MARK ZUCKERBERG Telephone: (954) 703-3416
Facsimile: (954) 400-5415
14
Attorneys for Defendants
15 THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC. and POLITIFACT
16

18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20 SAN FRANCISCO DIVISION
21 CHILDREN’S HEALTH DEFENSE,
Case No. 3:20-cv-05787-SI
22 Plaintiff,
23 DEFENDANTS’ OPPOSITION TO
v.
PLAINTIFF’S REQUEST FOR CASE
24 FACEBOOK, INC., ET AL., MANAGEMENT AND SUBSTITUTED
SERVICE ORDERS
25 Defendants.
26

28
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 2 of 7

1 Every one of the requests in Children’s Health Defense’s (“CHD”) motion is moot, meritless,

2 or made-up. Through its motion, CHD purports to withdraw consent from two stipulations and asks

3 this Court to enter orders (1) mandating the exact same briefing schedule provided for in the

4 stipulations and entered by this Court, (2) requiring counsel for CHD and Facebook to meet and confer

5 regarding ESI-retention protocols and an upcoming amendment to Facebook’s Terms of Service and

6 weeks before the time required under Federal Rule of Civil Procedure 26(f) and this Court’s rules, (3)

7 requiring that counsel for Facebook accept substitute electronic service on behalf of Mark Zuckerberg,

8 and (4) requiring that counsel for Facebook also accept service on behalf of foreign defendant Science

9 Feedback. But (1) the Court already entered the briefing schedule Plaintiff requests, (2) the parties
10 will meet-and-confer as required under the local rules before the upcoming Case Management
11 Conference, (3) counsel for Facebook agreed to accept electronic service for Mr. Zuckerberg upon
12 conferring with their client, and (4) CHD’s attempt to force counsel for Facebook to accept service on
13 behalf of an unrelated foreign entity has no basis in law and would violate baseline principles of due
14 process. Moreover, CHD bases its withdrawal of consent on the alleged omission from Defendants’
15 declaration (Doc. 24-1) of various conditions CHD now contends to have placed on its consent to a
16 prior, never-filed iteration of that stipulation. CHD never conditioned its consent to the stipulation as
17 it now argues, and, in any event, its consent to a prior iteration of that stipulation has no bearing on
18 the relief now sought.
19 I. The Requests For A Briefing Schedule And Mandated Substitute Service On Mr.
Zuckerberg Are Moot
20
There is no dispute regarding either the proposed briefing schedule for any Rule 12 motions or
21
substitute electronic service on Mr. Zuckerberg. The Court already entered the briefing schedule CHD
22
now requests, which is identical to the briefing schedule to which CHD stipulated. Doc. 29. And,
23
WilmerHale agreed to accept electronic service for Mr. Zuckerberg after taking the necessary step of
24
obtaining authorization from its client to do so. Holtzblatt Decl. ¶ 14 & Ex. E at 1; see also Doc. 35
25
(Plaintiff’s Affidavit of Substituted Service on Defendant Mark Zuckerberg). CHD’s requests for a
26
Rule 16(c) Order setting the schedule already established by this Court and for a Rule 4(f)(3) Order
27
authorizing substituted electronic service on Mr. Zuckerberg should therefore be denied as moot.
28
-1-
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 3 of 7

1 II. CHD’s Remaining Requests Are Unwarranted

2 CHD requests an order requiring Facebook to meet and confer within five days of that order.
3 This request is both unnecessary and unsupported. Facebook has already told CHD’s counsel that
4 it will meet-and-confer with CHD regarding “issues about preserving discoverable information” “at
5 least 21 days before a scheduling conference is to be held,” Fed. R. Civ. P. 26(f)—i.e., by October
6 30, 21 days before the case management conference scheduled for November 20, 2020, see Doc.
7 15. Moreover, CHD has not articulated with any specificity why it would make sense to accelerate
8 the normal schedule for the parties to confer on these issues, let alone why this schedule issue
9 requires intervention by the Court. Instead, CHD asserts, without explanation, that an upcoming
10 amendment to Facebook’s Terms of Service 1 somehow requires immediate discussion. Despite
11 Facebook’s repeated requests for clarification, Holtzblatt Decl. ¶¶ 9, 15, and the need to provide
12 some justification for the relief now sought, CHD has offered only the conclusory allegation that
13 applying the amended rule to CHD “would represent retaliatory misconduct and potential
14 spoliation,” Doc. 28, at 2-3; see also Holtzblatt Decl. ¶ 16 & Ex. G at 11, 13. And CHD has never
15 explained why it believes its conduct could run afoul of amended Section 3.2, why it believes there
16 is some risk that the amended Section 3.2 will apply to it (beyond its unexplained and implausible
17 concern that Section 3.2 was adopted specifically to retaliate against CHD), or why it believes that
18 the hypothetical application of Section 3.2 to CHD would result in spoliation. Holtzblatt Decl. ¶¶
19 9, 16 & Ex. G at 11, 13. In any event, Facebook is, of course, well aware of its preservation
20 obligations. The Court should deny CHD’s unfounded request that it order a meet-and-confer on a
21 more expedited timetable than required under the Federal and local Rules, on subjects with no
22 apparent relevance to this litigation.
23 CHD next requests an order mandating substitute electronic service on foreign Defendant
24 Science Feedback through counsel for Facebook. But such service would violate well-established
25
1
Effective October 1, 2020, Section 3-2 of Facebook’s Terms of Service, which sets forth what
26 users “can share and do on Facebook,” will be amended to provide that Facebook “also can
27 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.”
28 Terms of Service, available at https://www.facebook.com/legal/terms/preview.
-2-
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 4 of 7

1 due-process principles because it would not be “reasonably calculated, under all the circumstances,

2 to apprise [Science Feedback] of the pendency of the action.” Mullane v. Central Hanover Bank &

3 Trust, Co., 339 U.S. 306, 314 (1950). Science Feedback has no corporate relationship to Facebook.

4 It is nothing more than an independent contractor; the Complaint alleges only that Facebook

5 engaged Science Feedback as a fact-checker, and that Facebook compensates Science Feedback for

6 providing fact-checking services, Compl. ¶¶ 20, 86, 119, 122; and counsel for Facebook has no

7 independent relationship with Science Feedback, Holtzblatt Decl. ¶ 17; Mehta Decl. ¶ 4. None of

8 these facts establish that service on Facebook would be “reasonably calculated” to apprise Science

9 Feedback of the pendency of the action. The only case CHD cites for this proposition, Products &
10 Ventures International v. Axus Stationary (Shanghai) Ltd., 2017 WL 1378532 (N.D. Cal. April 11,
11 2017), involved the entirely distinguishable situation where plaintiffs sought to serve a foreign
12 defendant in a multiparty case, and counsel for one already-served defendant had previously stated
13 that it represented the foreign defendant and had a “close connection” with it. Id. at *4-5. Because
14 no such connection exists here, substitute service through counsel for Facebook would violate the
15 dictates of due process.
16 III. CHD’s Motion Misstates The Record
17 Defendants wish to correct the record regarding the purported inaccuracies in counsel’s
18 declaration in support of the Rule 6-2 Stipulation. CHD contends that the declaration was
19 “inaccurate in omitting the[] material facts” that its counsel had “conditioned their discussions of
20 reciprocal 45-day extensions of defendants’ response to the Complaint on three requests”: (1) that
21 the four U.S. defendants (i.e., Facebook, Mr. Zuckerberg, The Poynter Institute for Media Studies,
22 and PolitiFact) file a single motion to dismiss; (2) that counsel for Facebook and Mark Zuckerberg
23 accept service on behalf of Mr. Zuckerberg; and (3) that counsel for Facebook agree to meet and
24 confer regarding ESI-retention protocols and agree not to apply amended Section 3.2 of Facebook’s
25 Terms of Service to CHD during the pendency of this litigation. (Doc. 28, at 2-3). That is both
26 inaccurate and irrelevant to Plaintiff’s consent to the 60-day extensions reflected in the filed
27 Stipulations.
28
-3-
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 5 of 7

1 On September 4, 2020—the day after being retained—counsel for Facebook and Mr.

2 Zuckerberg spoke with counsel for CHD to request an extension of time to respond to the Complaint.

3 Mehta Decl. ¶ 2. Counsel for CHD agreed to an extension up to and including October 23, 2020,

4 conditioned upon a reciprocal 45-day extension for Plaintiff to oppose any Rule 12 motions, up to

5 and including December 7, 2020. Mehta Decl. ¶¶ 2, 5. Immediately following that telephone call,

6 Counsel for CHD sent counsel for all U.S. Defendants an email stating: “we agreed to a schedule

7 in which (1) your client defendants will file responses to the Complaint by Friday, October 23, 2020;

8 and (2) plaintiff will file its opposition to any motion to dismiss by Monday, December 7, 2020.”

9 Mehta Decl. Ex. A. The email communicated only one condition to CHD’s consent: the
10 “assum[ption] that [counsel for Facebook] will also be representing Mark Zuckerberg individually,
11 and that his response and plaintiff’s responsive pleading (if any) will be governed by the
12 stipulation.” Id.
13 Nonetheless, when defendants sent counsel for CHD a proposed stipulation reflecting the

14 agreed-upon 45-day extensions, counsel revoked his prior agreement. Mehta Decl. ¶ 7 & Ex. B;

15 Holtzblatt Decl. ¶ 2 & Ex. A. CHD requested an additional 14 days for its opposition to any Rule

16 12 motions, proposing instead deadlines of December 21, 2020 for CHD’s oppositions and January

17 21, 2021 for Defendants’ replies. Holtzblatt Decl. ¶ 2 & Ex. A at 10. During a phone conference

18 on September 9, 2020, counsel for CHD argued that the additional time was reasonable in light of,

19 among other things, the fact that CHD would likely be responding to multiple motions. Id. ¶¶ 3-4.

20 Defendants reluctantly agreed to the extended schedule, and discussed, but did not agree, to accept

21 electronic service of various filings and to meet and confer regarding ESI and amended Section 3.2

22 because counsel first needed to discuss each of these separate issues with his clients. Id. ¶¶ 5-9.

23 Following the call, counsel for Defendants sent counsel for CHD revised stipulations that

24 reflected the additional time and that addressed no other issues. Id. ¶ 10 & Ex. B. Counsel for CHD

25 responded: “You have my consent to file these Stipulations and [Proposed] Order.” Id. ¶ 11 & Ex.

26 C at 1. Separate from his consent to file, Plaintiff’s counsel asked: (1) whether WilmerHale would

27 accept service on behalf of Mr. Zuckerberg; (2) whether defendants would consent to accept

28
-4-
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 6 of 7

1 electronic service of the reassignment Order (Doc. 14), and Order setting the initial case

2 management conference (Doc. 15); and whether defendants agreed to his “suggested” date for a call

3 regarding ESI and amended Section 3.2 or could “suggest another day / time” for those discussions.

4 Id. He did not state that his consent to file the stipulations was conditioned on receiving satisfactory

5 responses to those questions. Prior to filing the agreed-upon stipulations, counsel for Facebook and

6 Mr. Zuckerberg informed counsel for CHD that he would “get back to” Plaintiff’s counsel regarding

7 substitute electronic service and made clear that Defendants “did not agree to calendar a call

8 regarding ESI-retention protocols at this time.” Id. ¶ 12 & Ex. D at 1. Approximately two hours

9 later, Defendants filed the Stipulations. Id. ¶ 13. The next day, without first making any attempt to
10 resolve these disputes directly with Defendants, CHD filed its purported withdrawal of consent and
11 motion for orders under Rules 16(c) and 4(f).
12 For the foregoing reasons, the Court should deny the Rule 16(c) and Rule 4(f) orders
13 requested by Plaintiff.
14

15 Dated: September 24, 2020 WILMER CUTLER PICKERING, HALE AND
DORR LLP
16
By: /s/ Sonal N. Mehta
17 SONAL N. MEHTA

18 Attorney for Defendants
Facebook, Inc. and Mark Zuckerberg
19

20
Dated: September 24, 2020 JASSY VICK CAROLAN LLP
21
By: /s/ Kevin L. Vick
22 KEVIN L. VICK

23 Attorney for Defendants
The Poynter Institute for Media Studies, Inc. and
24 PolitiFact

28
-5-
CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS
Case 3:20-cv-05787-SI Document 43 Filed 09/24/20 Page 7 of 7

1 SIGNATURE ATTESTATION

2 I am the ECF User whose identification and password are being used to file the foregoing

3 Opposition. Pursuant to Civil Local Rule 5-1(i), I hereby attest that the other signatures have

4 concurred in this filing.

5 Dated: September 24, 2020 By: /s/ Sonal N. Mehta
Sonal N. Mehta
6

9 CERTIFICATE OF SERVICE
10 I hereby certify that on September 24, 2020, I electronically filed the above document with

11 the Clerk of the Court using CM/ECF which will send electronic notification of such filing to all

12 registered counsel.

14 Dated: September 24, 2020 By: /s/ Sonal N. Mehta
Sonal N. Mehta
15

28
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CASE NO.: 3:20-CV-05787-SI DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
REQUEST FOR CASE MANAGEMENT AND
SUBSTITUTED SERVICE ORDERS

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