RICHARD KADREY, et al., Plaintiffs, v. META PLATFORMS, INC., Defendant Case No. 23-cv-03417-VC (TSH) United States District Court, N.D. California Filed October 01, 2024 Counsel Joseph R. Saveri, Aaron Cera, Cadio R. Zirpoli, Christopher K.L. Young, Holden J. Benon, Louis Andrew Kessler, Margaux Poueymirou, Joseph Saveri Law Firm, LLP, San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Boies Schiller Flexner LLP, San Francisco, CA, Joshua Michelangelo Stein, Maxwell Vaughn Pritt, Boies Schiller Flexner LLP, San Francisco, CA, David A. Straite, DiCello Levitt LLP, New York, NY, Kathleen Jordan McMahon, Sidran Law Corp, San Ramon, CA, Matthew Butterick, Matthew Butterick, Attorney at Law, Los Angeles, CA, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel, LLP, Chicago, IL, for Plaintiffs Richard Kadrey, Sarah Silverman, Christopher Golden. Bryan L. Clobes, Alexander Sweatman, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel LLP, Chicago, IL, Daniel Jerome Muller, Ventura Hersey & Muller, LLP, San Jose, CA, Aaron Cera, Christopher K.L. Young, Margaux Poueymirou, Joseph R. Saveri, Joseph Saveri Law Firm, LLP, San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell Vaughn Pritt, Boies Schiller Flexner LLP, San Francisco, CA, David A. Straite, DiCello Levitt LLP, New York, NY, for Plaintiffs Jacqueline Woodson, Andrew Sean Greer, Rachel Louise Snyder, David Henry Hwang, Ta-Nehisi Coates, Laura Lippman, Matthew Klam, Junot Diaz. Adam J. Levitt, DiCello Levitt Gutzler LLC, Chicago, IL, Amy E. Keller, James Arthur Ulwick, DiCello Levitt Gutzler LLP, Chicago, IL, Greg G. Gutzler, DiCello Levitt LLC, New York, NY, David A. Straite, DiCello Levitt LLP, New York, NY, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, Lisa Geary, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Seth Haines, Timothy Hutchinson, Rmp LLP, Springdale, AR, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell Vaughn Pritt, Boies Schiller Flexner LLP, San Francisco, CA, for Plaintiffs Mike Huckabee, Relevate Group, John Blase. Amy E. Keller, DiCello Levitt LLP, Chicago, IL, James Arthur Ulwick, DiCello Levitt Gutzler LLP, Chicago, IL, Greg G. Gutzler, DiCello Levitt LLC, New York, NY, David A. Straite, DiCello Levitt LLP, New York, NY, Lisa Geary, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Seth Haines, Timothy Hutchinson, Rmp LLP, Springdale, AR, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell Vaughn Pritt, Boies Schiller Flexner LLP, San Francisco, CA, for Plaintiffs David Kinnaman, Tsh Oxenreider. Adam J. Levitt, DiCello Levitt Gutzler LLC, Chicago, IL, Amy E. Keller, DiCello Levitt LLP, Chicago, IL, James Arthur Ulwick, DiCello Levitt Gutzler LLP, Chicago, IL, Nada Djordjevic, Pro Hac Vice, DiCello Levitt LLP, Chicago, IL, Brian O. O'Mara, DiCello Levitt LLP, San Diego, CA, Christopher K.L. Young, Joseph Saveri Law Firm, LLP, San Francisco, CA, David Boies, Pro Hac Vice, Boies Schiller and Flexner, Armonk, NY, David L. Simons, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, David A. Straite, DiCello Levitt LLP, New York, NY, Jesse Michael Panuccio, Pro Hac Vice, Boies Schiller Flexner, Washington, DC, Joshua I. Schiller, Joshua Michelangelo Stein, Maxwell Vaughn Pritt, Boies Schiller Flexner LLP, San Francisco, CA, Mohammed Rathur, Cafferty Clobes Meriwether & Sprengel, LLP, Chicago, IL, Joseph R. Saveri, Joseph Saveri Law Firm, LLP, San Francisco, CA, for Plaintiff Lysa TerKeurst. Bobby A. Ghajar, Colette Ani Ghazarian, Cooley LLP, Santa Monica, CA, Angela Dunning, Cleary Gottlieb Steen & Hamilton LLP, Palo Alto, CA, Elizabeth Lee Stameshkin, Cooley LLP, Palo Alto, CA, Judd D. Lauter, Cooley LLP, Palo Alto, CA, Kathleen R. Hartnett, Cooley LLP, San Francisco, CA, Mark Alan Lemley, Lex Lumina PLLC, New York, NY, for Defendant. Hixson, Thomas S., United States Magistrate Judge DISCOVERY ORDER Re: Dkt. No. 190 *1 The parties filed a joint discovery letter brief at ECF No. 190 raising three disputes. The Court addresses them in turn. A. Additional Custodians Plaintiffs ask the Court to order Meta to add five document custodians: Mark Zuckerberg, Eleonora Presani, Amanda Kallet, Alex Boesenberg, and Nikolay Bashlykov. As background, it is helpful to remember that the close of fact discovery was September 30, 2024 (i.e., yesterday). ECF No. 87. Judge Chhabria has “extended the fact discovery cut off by 14 days for the purpose of taking depositions that couldn't be scheduled before the discovery cut-off.” ECF No. 163. But the discovery cutoff was otherwise September 30, including, for example, for document productions. There is a pending motion to modify the case schedule, ECF No. 184, so these deadlines may change. But the Court will manage discovery under the deadlines that exist now, and if those deadlines change, the Court can change its discovery rulings as well. The stipulated ESI Order (ECF No. 101) states: “If, after the Parties identify Document Custodians, a requesting Party believes that additional Document Custodians should be added, then the requesting Party shall advise the producing Party in writing of the proposed additional Document Custodians and the basis for the request. If the Parties have not agreed whether to add the Document Custodian within 30 days of the requesting Party's request, then the matter may be brought to the Court in accordance with the procedures required by Magistrate Judge Hixson.” Here, Plaintiffs state that they proposed to Meta to add these five document custodians in a letter on August 23, 2024. Plaintiffs raised the issue of these proposed custodians with the Court five days before the close of fact discovery, in an oral request for more custodians made during a September 25, 2024 Court hearing. The Court ordered the parties to file the present joint discovery letter brief by September 30, 2024,[1] so the Court received full briefing on this issue only on the last day of fact discovery. Plaintiffs raised this issue with the Court too late. Identifying document custodians is supposed to be one of the first things litigants do in discovery, not one of the last. While the ESI Order does contemplate the potential addition of other document custodians, it does not relieve the parties of the obligation to act diligently and at least attempt to complete fact discovery by the fact discovery cutoff. The Court is concerned that if it grants Plaintiffs' motion – or if it had granted Plaintiffs' oral motion on the spot on September 25 – it would be adding several weeks of additional document productions, see ECF No. 190-8 (declaration of Meta's outside counsel), which doesn't seem consistent with wrapping up fact discovery by September 30, or even trying to do so. It is true, of course, that the Court can order documents produced after fact discovery has closed, as discovery motions can be filed up to seven days after the close of fact discovery. Civ. Local Rile 37-3. But eleventh hour motions to compel should be for wrap-up items, not for major changes to the scope of discovery. Adding five document custodians is a big change, not a small change, to the scope of Meta's document production obligations in this case. The document productions for these new proposed custodians would also likely all take place after depositions had concluded, which is not a logical way of structuring discovery. *2 Plaintiffs' section of the letter brief is silent about when they received the documents that led them to conclude they want these custodians' documents. The Court is skeptical that Plaintiffs had no reason to think they wanted Zuckerberg's documents before August 2024, in particular because they keep citing an April 6, 2024 New York Times article (ECF No. 162-4) as evidence of his personal knowledge of and involvement in Meta's AI initiatives. Plaintiffs argue that Dr. Presani's deposition “last week” showed that the witness has relevant, unproduced documents. But Plaintiffs also acknowledge that they requested Presani be added as a custodian on August 23 based on other documents produced, and they don't say when those documents were produced. The Court accordingly DENIES Plaintiffs' request for additional custodians on the ground that it is untimely and incompatible with the existing case schedule. As noted above, Plaintiffs have a pending motion to extend the case schedule. If the fact discovery cutoff changes in a meaningful way, the Court will sua sponte revisit the issue of adding these proposed custodians. B. Imaging Issues Plaintiffs say: Meta's production also suffers from serious and persistent imaging issues. The Court should order Meta to review its productions to determine if documents had been incorrectly imaged and to reproduce those as well. Meta has produced a significant volume of document that are cut-off and illegible. This violates not only the ESI Protocol but Meta's obligations under the Federal Rules. Plaintiffs should not have to comb through Meta's production to identify each violating document when it was Meta's obligation in the first instance to produce documents that are legible and searchable. Meta responds that “Plaintiffs' suggestion that Meta must re-review its entire production, rather than reproduce the unique document-type to address Plaintiffs' concerns, creates a burden for Meta without reason.” But the Court does not agree. Meta is not supposed to produce documents that are cut-off and illegible. So, if it has done that, it should fix that. Meta says it has produced around 20,000 documents, which is not a huge volume to review for obvious problems like the ones Plaintiffs identify. Besides, Meta seems to think it knows which documents have this problem (Google Sute.docx filed produced as TIFF files). The Court ORDERS Meta to reproduce documents that have been incorrectly imaged. C. Rule 30(b)(6) Deposition Notice The parties seem to agree that if a witness is noticed pursuant to Rule 30(b)(1) and is also designated as a Rule 30(b)(6) corporate representative, he or she is subject to independent time limitations. The real dispute is over how many total hours Plaintiffs can have for their Rule 30(b)(6) deposition notice. Plaintiffs propose 24 hours. Meta proposes a total of 12 hours, not to exceed three additional hours for any witness who is also noticed under Rule 30(b)(1). The Court agrees with Meta that topics 1, 3 and 5 in the deposition notice overlap, as do topics 4 and 9. The Court therefore thinks that the 11 topic notice is better thought of as eight discrete topics. And the Court thinks each discrete topic warrants two hours. The Court therefore ORDERS that Plaintiffs may take a total of 16 hours of deposition testimony on their Rule 30(b)(6) deposition notice, separate and apart from their 30(b)(1) depositions. How to allocate those 16 hours between Rule 30(b)(6) designees is for Plaintiffs to decide. IT IS SO ORDERED. Footnotes [1] The letter brief was filed shortly after midnight, so on ECF the date of the filing is October 1, 2024.