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Mireille Carrier v. Valueclick Inc et al Doc.

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Case 2:07-cv-02641-FMC-CT Document 41 Filed 01/03/2008 Page 1 of 9

1 REED R. KATHREIN (139304)


reed@hbsslaw.com
2 JEFF D. FRIEDMAN (173886)
jefff@hbsslaw.com
3 SHANA E. SCARLETT (217895)
shanas@hbsslaw.com
4 HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
5 Berkeley, CA 94710
Telephone: (510) 725-3000
6 Facsimile: (510) 725-3001
7 KASSRA P. NASSIRI (215405)
knassiri@nassiri-jung.com
8 CHARLES H. JUNG (217909)
cjung@nassiri-jung.com
9 NASSIRI & JUNG LLP
251 Kearny Street, Suite 501
10 San Francisco, CA 94108
Telephone: (415) 373-5699
11 Facsimile: (415) 534-3200
12 Attorneys for Plaintiff
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17 MIREILLE CARRIER, Individually and ) No. 07-cv-02641-FMC (CTx)
on Behalf of All Others Similarly )
18 Situated, ) (Assigned to the Honorable Florence-
19 ) Marie Cooper, Courtroom 750)
Plaintiff, )
20 ) UPDATED JOINT REPORT TO
v. ) THE COURT REGARDING RULE
21 ) 26(f) MEETING OF COUNSEL
VALUECLICK, INC., a Delaware )
22 Corporation, Its Wholly-Owned ) DATE: January 14, 2007
23 Subsidiary COMMISSION JUNCTION, ) TIME: 9:00 a.m.
INC., and Its Wholly-Owned Subsidiary ) DEPT: Courtroom 750 (Roybal)
24 BE FREE, )
)
25 Defendants. ) ACTION FILED: April 20, 2007
26 )

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Dockets.Justia.com
Case 2:07-cv-02641-FMC-CT Document 41 Filed 01/03/2008 Page 2 of 9

1 By and through their undersigned counsel, Plaintiff Mireille Carrier,


2 individually and on behalf of others similarly situated, (“Plaintiff”) and Defendants
3 ValueClick, Inc., Commission Junction, Inc., and Be Free (“Defendants”) provide
4 the following report pursuant to Rule 26 of the Federal Rules of Civil Procedure.
5 RULE 26(F) REPORT
6 Counsel for Plaintiff and Defendants conducted their conference of counsel
7 pursuant to Rule 26(f) on September 18, 2007. During this conference, the parties
8 discussed the nature and basis of the claims, the prospects for settlement, potential
9 dispositive motions, initial disclosures pursuant to Rule 26, proposals for a discovery
10 plan, and the other matters summarized below.
11 A. Nature and Basis of the Claims
12 Plaintiff filed this action on April 20, 2007. This putative class action
13 involves persons and/or entities that publish advertisements using Defendants’
14 affiliate networks and have a contractual relationship with ValueClick, Commission
15 Junction, and/or Be Free. In short, Plaintiff claims that Defendants failed to credit
16 and/or improperly paid adware entities monies legally owed to Plaintiff and the
17 putative class. Defendants contend that Commission Junction took reasonable steps
18 to address adware on Commission Junction’s affiliate networks but, in any event,
19 Defendants do not have an obligation to Plaintiff or members of the putative class to
20 monitor and prevent adware on Commission Junction’s affiliate networks.
21 Defendants filed a Motion to Dismiss and Motion to Strike Requests for
22 Certain Relief on June 13, 2007. The Court granted in part and denied in part
23 Defendants’ Motion to Dismiss and denied Defendants’ Motion to Strike on August
24 27, 2007. Plaintiff filed her First Amended Complaint on September 12, 2007.
25 Plaintiff’s First Amended Complaint alleges three claims: (1) breach of contract; (2)
26 negligence; and (3) unfair business practices in violation of Cal. Bus. & Prof. Code
27 §§ 17200, et seq. Plaintiff and Defendants agreed that Defendants would move,
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1 plead, or otherwise respond to the First Amended Complaint no later than October 1,
2 2007, and Defendants filed and served an Answer to the First Amended Complaint
3 on October 1.
4 B. Rule 26 Initial Disclosures
5 The parties exchanged their Initial Disclosures pursuant to Rule 26 on October
6 5, 2007.
7 C. Scheduling Plan
8 The parties previously proposed scheduling plans in their Joint Report to the
9 Court Regarding Rule 26(f) Meeting of Counsel, filed on October 2, 2007. After
10 filing the proposed schedules, the parties have entered into preliminary settlement
11 discussions and have scheduled a mediation session with Hon. Edward Panelli on
12 February 25, 2008. As a result, the parties have agreed to focus discovery (formal
13 and informal) on targeted issues to help advance potential settlement. Consequently,
14 the parties agree that the proposed schedules should not be entered at this time. The
15 parties propose to submit an updated proposed schedule if and when they are unable
16 to reach a resolution in this case.
17 D. Discovery
18 Both parties have propounded and responded to written discovery and have begun
19 to take deposition testimony. However, in light of the pending settlement discussions
20 and mediation session, the parties have agreed, rather than engaging in wide-ranging
21 discovery, to focus their efforts on targeted discovery to assist their settlement
22 discussions at this time.
23 Defendants propose that the parties agree to limit the number of depositions to
24 seven (7) per party according to Fed. R. Civ. P. 30(a)(2)(A) and 31(a)(2)(A), unless
25 good cause is shown to increase or decrease this number. Plaintiff’s position is that
26 the parties should not be limited to the number of depositions specified in Federal
27 Rule of Civil Procedure 30(a)(2)(A). Plaintiff requests, given the complexity of this
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1 case, that the Court extend the limit to twenty (20) fact witnesses and five (5) Rule
2 30(b)(6) topics at this time.
3 E. Documents
4 The parties have conferred concerning the disclosure of electronically stored
5 information. Defendants propose to produce electronically stored information, other
6 than data from Commission Junction’s production database, as Tagged Image File
7 Format (“TIFF”) documents with Optical Character Recognition (“OCR”) but
8 without associated metadata and without prejudice to any request for metadata
9 associated with specifically identified documents if such metadata is relevant and
10 reasonable necessary for the prosecution or defense of any claims asserted in this
11 action.
12 Plaintiff will request Defendants produce all electronically stored information,
13 other than data from Commission Junction’s production database, in native format
14 with all metadata associated with each produced document.
15 The parties have agreed to confer, with the assistance of technical personnel as
16 appropriate, to attempt to reach a mutually satisfactory agreement for the disclosure
17 of data from Commission Junction’s production database that is responsive to
18 particular discovery requests.
19 The parties have discussed the preservation of documents in connection with
20 this litigation. Plaintiff has identified several purported issues relating to
21 Defendants’ preservation measures. The parties intend to continue to meet and
22 confer concerning document preservation efforts.
23 F. Privilege Issues
24 The parties will confer to try and reach agreement regarding inadvertent
25 disclosure of any information protected by the attorney-client privilege, work
26 product doctrine, or other applicable privilege or protection.
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1 The parties are currently negotiating a draft proposed protective order that will
2 address privilege issues and discovery of confidential information.
3 G. Limitations on Discovery
4 The parties reserve the right to vary the limitations on discovery imposed by
5 the Federal Rules of Civil Procedure or by local rule other than as provided in this
6 report.
7 H. Complexity of the Case
8 The parties agree that this case should be designated as complex. The parties
9 have agreed to meet and confer further as to whether any portion of the Manual for
10 Complex Litigation should be used.
11 I. Motion Schedule
12 There are currently no pending or scheduled motions.
13 The parties anticipate additional motion practice. Although the parties expect
14 to resolve any discovery disputes, it is possible that these disputes may need to be
15 resolved by motion. In addition, Plaintiff anticipates moving for class certification,
16 and Defendants anticipate filing Motions for Summary Judgment and/or
17 Adjudication prior to any trial in this matter.
18 J. Settlement
19 The parties reasonably anticipate they may be able to agree to an early
20 resolution of this action. Currently, the parties are engaged in settlement discussions
21 and have preliminarily scheduled a mediation session before the Hon. Edward
22 Panelli on February 25, 2008.
23 K. Length of Trial Estimate
24 At this time, the parties estimate that a minimum of four weeks will be
25 necessary for trial.
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1 L. Additional Parties
2 At this time, the parties do not anticipate joining any additional parties.
3
4 IT IS SO ORDERED.
5 DATED:_____________________
THE HONORABLE FLORENCE-MARIE
6 COOPER
UNITED STATES DISTRICT JUDGE
7
8
9 DATED: January 3, 2008 HAGENS BERMAN SOBOL SHAPIRO LLP
10
11 /s/ Jeff D. Friedman
JEFF D. FRIEDMAN
12
Reed R. Kathrein (139304)
13 Shana E. Scarlett (217895)
715 Hearst Avenue, Suite 202
14 Berkeley, CA 94710
Telephone: (510) 725-3000
15 Facsimile: (510) 725-3001
reed@hbsslaw.com
16 jefff@hbsslaw.com
shanas@hbsslaw.com
17
NASSIRI & JUNG LLP
18 Kassra P. Nassiri (215405)
Charles H. Jung (217909)
19 251 Kearny Street, Suite 501
San Francisco, CA 94108
20 Telephone: (415) 373-5699
Facsimile: (415) 534-3200
21 knassiri@nassiri-jung.com
cjung@nassiri-jung.com
22
Attorneys for Plaintiff
23
DATED: January 3, 2008 GIBSON, DUNN & CRUTCHER LLP
24
25
/s/ S. Ashlie Beringer
26 S. ASHLIE BERINGER
27 1801 California Street, Suite 4200
Denver, Colorado 80202
28 Telephone: (303) 298-5718
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1 Facsimile: (303) 313-2868


ABeringer@gibsondunn.com
2
Attorney for Defendants
3 VALUECLICK, INC., COMMISSION
JUNCTION, INC., and BE FREE
4
5 I, Shana E. Scarlett am the ECF User whose ID and password are being used
to file this UPDATED JOINT REPORT TO THE COURT REGARDING RULE
6 26(f) MEETING OF COUNSEL. In compliance with General Order 07-08, I hereby
attest that Jeff D. Friedman and S. Ashlie Beringer have concurred in this filing.
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on January 3, 2008, I electronically filed the foregoing
3 with the Clerk of the Court using the CM/ECF system which will send notification of
4 such filing to the e-mail addresses registered, as denoted on the attached Electronic
5 Mail Notice List, and I hereby certify that I have mailed the foregoing document or
6 paper via the United States Postal Service to the non-CM/ECF participants indicated
7 on the attached Manual Notice List.
8
9 /s/ Shana E. Scarlett
SHANA E. SCARLETT
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CM/ECF - California Central District https://ecf.cacd.uscourts.gov/cgi-bin/MailList.pl?104418896017966-L_...
Case 2:07-cv-02641-FMC-CT Document 41 Filed 01/03/2008 Page 9 of 9

Mailing Information for a Case 2:07-cv-02641-FMC-CT


Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

S Ashlie Beringer
aberinger@gibsondunn.com

Jeff D Friedman
jefff@hbsslaw.com

Reed R Kathrein
reed@hbsslaw.com

Kassra Powell Nassiri


knassiri@nassiri-jung.com

G Charles Nierlich , III


gnierlich@gibsondunn.com

Shana E Scarlett
shanas@hbsslaw.com

Manual Notice List

The following is the list of attorneys who are not


on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your
mouse to select and copy this list into your word processing program in order to create notices or labels for these
recipients.
Scott Patrick Barlow
ValueClick Inc
30699 Russell Ranch Road
Suite 250
Westlake Village, CA 91362

Charles H Jung
Nassiri and Jung
251 Kearny Street, Suite 501
San Francisco, CA 94108

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