Opinion
3:22-cv-02366-RS
02-08-2024
SHARED PARTNERSHIP, Plaintiff, v. META PLATFORMS, INC., Defendant.
DEFENDANT META PLATFORMS, INC.'S LETTER ROGATORY CONCERNING SAMPFORD ADVISORS, INC.
HONORABLE RICHARD SEEBORG, DISTRICT COURT JUDGE
LETTER ROGATORY CONCERNING SAMPFORD ADVISORS, INC.
TO: THE ONTARIO SUPERIOR COURT OF JUSTICE, CANADA:
The United States District Court for the Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California, presents its compliments, and requests international judicial assistance to obtain testimony to be used in a civil proceeding before this Court. This Court has authority to submit this Letter Rogatory under 28 U.S.C. § 1781(b)(2).
This Court has found that justice cannot be completely done between the parties without the testimony of the named entity, located within your jurisdiction. We have been satisfied that this request is required to produce evidence necessary for trial. In the interests of justice and judicial economy, we request that the Ontario Superior Court allow such testimony to be used for pre-trial discovery purposes in the above-captioned matter.
The Court requests the documents and deposition testimony for the topics outlined in Schedules A and B attached hereto, of non-party Sampford Advisors, Inc. (“Sampford Advisors”), a corporation located in Ottawa, Ontario.
I. SUMMARY OF THIS ACTION
The above referenced action was initiated by Shared Partnership (“Shared” or “Plaintiff”). Shared filed the above-captioned case on April 15, 2022. Shortly after Defendant Meta Platforms, Inc. (“Meta” or “Defendant”) filed its motion to dismiss, Shared filed its First Amended Complaint (“FAC”). The FAC asserts several claims against Meta arising from Shared's purported use of Meta's advertising services on the Facebook platform through October 2020, when Meta disabled Plaintiff's Facebook pages and related accounts. See generally Dkt. 21. The FAC asserted claims for (1) conversion, (2) violations of California's Unfair Competition law, Bus. & Prof. Code § 17200, (3) breach of contract, (4) breach of the implied covenant of good faith and fair dealing, (5) intentional misrepresentation, and (6) negligent misrepresentation. The Court partially granted Meta's motion to dismiss the FAC, dismissing the conversion claim and the breach of contract and breach of the implied covenant claims with respect to alleged breaches of Meta's terms of service.
Discovery is ongoing and expected to close on February 29, 2024, and Meta has sought discovery to support its defense against Shared's claims. However, some information being sought regarding relevant topics, such as assessments of Shared's business model, financial condition, and valuation during the relevant period is in the possession, custody, or control of non-party Sampford Advisors. Sampford Advisors served as Shared's consultant during the relevant period in this case. Based on the documents produced by Shared, Sampford Advisors appears to have had an active role in assessing and valuing Shared's business, which is relevant to Plaintiff's claims and Defendant's defenses in this case. Therefore, relevant information is in the possession of Sampford Advisors.
II. DOCUMENTS AND DEPOSITION TESTIMONY REQUESTED
This Court requests that the Ontario Superior Court order Sampford Advisors to produce documents responsive to the requests included in Schedule A and deposition testimony related to the topics included in Schedule B, to the extent the requested information is in the possession, control, or power of Sampford Advisors and not privileged under the applicable laws of Canada or the United States. The testimony is being sought for use in preparation for trial and may be offered in evidence at trial, if admissible in accordance with the Federal Rules of Evidence and the Federal Rules of Civil Procedure applicable to the proceedings before this Court.
III. RECIPROCITY AND REIMBURSEMENT FOR COSTS
This Court stands ready to extend similar assistance to the judicial tribunals of Canada. To the extent that there are expenses associated with providing assistance in response to this Letter Rogatory, this Court will see that the Ontario Superior Court is reimbursed by Defendant c/o Orrick, Herrington & Sutcliffe LLP, 1000 Marsh Road, Menlo Park, California 94025, United States of America.
The United States District Court for the Northern District of California extends its assurances of highest regard and consideration to Canada.
SCHEDULE A
DEFINITIONS
Each of these definitions is incorporated by reference into each of the Requests to which it pertains. Notwithstanding any definition below, each word, term, or phrase used in these Requests is intended to have the broadest meaning permitted under the Federal Rules of Civil Procedure.
1. The term “Communication(s)” as used herein means the transmittal of any information in any manner, including any oral, written, or electronic correspondence and evidence thereof, no matter how that correspondence or evidence is stored, memorialized, or fixed. It also includes any letters, emails, text messages or other instant messaging application, transcripts, records of statements, summaries, memoranda, reviews, reports, notes, logs, journals, minutes, or outlines concerning the transmittal of information.
2. The term “Document(s)” as used herein is synonymous in meaning and equal in scope to its usage in FRCP 34(a)(1)(A), which states, “any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form” or any designated tangible things, or entry onto land or other property. The term “Document(s)” refers to any document now or at any time in your possession, custody, or control. A person is deemed in control of a document if the person has any ownership, possession, or custody of the document, or the right to secure the document or a copy thereof from any person or public or private entity having physical possession thereof.
3. The term “Letter of Intent” as used herein means the letter dated December 8, 2017 from Periscope to Shared with an offer of acquisition.
4. The term “Meta” as used herein means Defendant Meta Platforms, Inc., and its predecessors, successors, assignees, parents, subsidiaries and divisions, affiliates, partners, or any current or former directors, officers, employees, agents, representatives, or any other person acting or purporting to act on its behalf, including, without limitation, Facebook, Inc.
5. The term “Sampford,” “You,” or “Your” as used herein means nonparty Sampford Advisors, Inc., any current or former directors, officers, employees, agents, representatives, or any other person acting or purporting to act on behalf of Samford Advisors, Inc.
6. The term “CIM” as used herein means a confidential information memorandum or other comparable document used to solicit potential buyers of a business.
7. The term “Person(s)” as used herein means any individual, corporation, general partnership, limited partnership, joint venture, association, joint-stock company, trust-incorporated organization, governmental, legal or political subdivision, and any non-natural persons of whatever nature. Unless noted otherwise, any reference to any individual person, either singularly or as a part of a defined group, includes that individual person's employees, agents, successors, assignees, heirs, and representatives.
8. The term “Relate To,” “Relates To,” and “Relating To” as used herein includes referring to, alluding to, responding to, evidencing, supporting, proving, disproving, concerning, connected with, commenting on, discussing, showing, describing, or analyzing, addressing in any way or otherwise dealing with the subject matter of the request.
9. The term “Relevant Period” as used herein means January 1, 2008 to the present.
10. The term “Shared” as used herein means Plaintiff Shared Partnership and Shared, Inc., and their affiliates, predecessors, successors, assignees, parents, subsidiaries, and divisions.
11. The term “Periscope” as used herein means nonparty Periscope Equity, LLC, and its affiliates, predecessors, successors, assignees, parents, subsidiaries, and divisions.
12. The term “Valuation” as used herein means any quantitative or qualitative process that You conducted to determine the total enterprise value of Shared in connection with the Letter of Intent.
INSTRUCTIONS
1. The provisions of Fed.R.Civ.P. 26, 34, and 45 are incorporated by reference.
2. These Requests cover all information that is in Your actual or constructive possession, custody or control, including information in the possession, custody or control of each entity or individual who acts, or who has acted as an employee, agent, representative, contractor, accountant, or attorney for You. Information is in Your possession, custody or control if You have the legal right to obtain the information, regardless of the information's source.
3. If any of these Requests cannot be complied with in full, it should be complied with to the extent possible, and an explanation should be provided as to why full compliance is not possible.
4. If any document requested herein is claimed to be privileged or otherwise withheld, in whole or in part, you must identify each Document and provide the following information:
a. The identity of the Person who created, wrote, or prepared the Document and, if applicable, the Person(s) to whom the Document (or copies thereof) was sent;
b. The date on which the Document was created, written, prepared, or transmitted;
c. The description of the nature of the Document sufficient to evaluate the claim that the Document may be withheld from production; and
d. The present location and custodian of the Document, and whether the Document is privileged or otherwise withheld, and why the Document is privileged or withheld.
5. In the event that You contend that any of these Requests is objectionable, in whole or in part, You shall state with particularity each such objection and the basis therefore, and shall produce documents and materials responsive to the remainder of these Requests to the extent that You are not objecting to them. Any ground for objection that is not stated within the time provided by the Civil Procedure Rules shall be waived.
6. A Protective Order has been entered in this litigation, a copy of which is attached. If any of the documents and things produced pursuant to this subpoena are considered “Confidential” or “Highly Confidential-Attorney's Eyes Only,” please mark the documents to indicate such a designation, and the documents will be maintained and treated in compliance with the Protective Order. If a page is not marked with such designation, it is assumed that it will not contain Confidential Business Information.
7. In accordance with Fed.R.Civ.P. 26, these Requests are continuing in nature and require you to provide supplemental information in a timely manner in the event that you obtain or discover additional information or documents after the information requested herein is produced.
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1:
All Documents and Communications Relating To Shared's financial condition from January 1, 2016 through the present, including without limitation: (i) balance sheets, income statements, cash flow statements, financial projections, performance targets, and applications for loans or other financing prepared on Shared's behalf; (ii) potential and actual financing, deals, acquisitions, and other efforts by Sampford and/or Shared's behalf to improve Shared's financial condition; and (iii) Sampford's role in maintenance of Shared's financial condition.
REQUEST FOR PRODUCTION NO. 2 :
All Documents and Communications Relating To representations that Shared made to Sampford during the Relevant Period regarding its relationship with Meta, including without limitation: (i) Shared's understanding of Meta's Advertising Policies, terms, and conditions; (ii) Shared's understanding of changes to Meta's Advertising Policies, terms, and conditions and their effect on Shared's business; and (iii) any changes that Shared made to its business model or advertising content in light of changes to Meta's Advertising Policies, terms, and conditions.
REQUEST FOR PRODUCTION NO. 3 :
All Documents and Communications Relating To Project Stack and the CIM that Shared issued in or around September 2017, including without limitation, Documents and Communications reflecting (i) why Shared decided to issue a CIM; (ii) other financing or restructuring alternatives that Sampford proposed or Shared considered in lieu of issuing a CIM; (iii) Sampford's involvement in the decision, drafting, and issuance of the CIM; (iv) the Persons to whom the CIM was issued and why; (v) the Persons who made offers pursuant to the CIM; and (vi) which of those offers were later accepted, rejected, or withdrawn and why.
REQUEST FOR PRODUCTION NO. 5 :
All Documents and Communications Relating To the “Assumed Enterprise Value” as reflected in the Letter of Intent, including without limitation, (i) Documents and Communications that Shared or Persons acting on its behalf provided Periscope in connection with the Assumed Enterprise Value; (ii) Documents and Communications reflecting Sampford's perspective as to the accuracy of the Assumed Enterprise Value; and (iii) Documents and Communications reflecting any amendments, alterations, corrections, or other changes to the Assumed Enterprise Value throughout the proposed transaction and the reasons for any such amendments, alterations, corrections, or other changes to the Assumed Enterprise Value.
REQUEST FOR PRODUCTION NO. 6 :
The negotiations between Shared and Periscope Relating To Periscope's proposed transaction to invest in or otherwise acquire Shared, including without limitation, (i) any and all due diligence, analysis, assessments, or research that Periscope conducted or that was conducted on Periscope's behalf as part of the proposed transaction; (ii) the Documents and Communications Periscope (or Persons on its behalf) requested or were provided as part of the transaction; (iii) any Documents and Communications Periscope requested but ultimately did not receive; (iv) any emails, meetings, calls, memoranda, or other correspondence between Periscope (or Persons acting on its behalf) and Sampford and/or Shared (or Persons acting on their behalf); (v) the proposed structure of the transaction and how that structure was determined; and (vi) the circumstances under which Periscope decided not to proceed with the transaction with Shared.
REQUEST FOR PRODUCTION NO. 7 :
All Documents and Communications Relating To representations that Shared made (or were made on Shared's behalf) to Periscope (or those acting on Periscope's behalf) during the proposed transaction to invest in or otherwise acquire Shared, including without limitation, representations regarding (i) the financial condition of Shared and its principals; (ii) Shared's business, including its actual business and forecasts for future business; (iii) Shared's relationship with Meta; (iv) Shared's understanding of Meta's Advertising Policies, terms, and conditions; (v) and Shared's understanding of changes to Meta's Advertising Policies, terms, and conditions and their effect on Shared's business.
REQUEST FOR PRODUCTION NO. 8 :
All Documents and Communications Relating To Periscope's decision not to invest in or otherwise acquire Shared, including without limitation, Documents and Communications reflecting (i) the particular information, Documents, or Communications that impacted, influenced, affected, or otherwise led to the decision; (ii) the process by which Periscope reached the decision; (iii) the circumstances under which Periscope communicated its decision to Shared; (iv) Periscope's understanding of Shared's reaction to the decision; and (v) Periscope's understanding of how its decision impacted or affected Shared's business.
REQUEST FOR PRODUCTION NO. 9 :
All Documents and Communications Relating To financing or restructuring alternatives that Shared sought or Sampford proposed following Periscope's decision not to proceed with the transaction, including without limitation, Documents and Communications reflecting (i) Sampford's assessment regarding the desirability of those financing or restructuring options as compared to the transaction with Periscope; (ii) Sampford's involvement in securing any alternative financing or restructuring; and (iii) Sampford's assessment of the ultimate success of any alternative financing option that Shared secured.
SCHEDULE B
DEFINITIONS
Each of these definitions is incorporated by reference into each of the Topics to which it pertains. Notwithstanding any definition below, each word, term, or phrase used in these Topics is intended to have the broadest meaning permitted under the Federal Rules of Civil Procedure.
1. The term “Communication(s)” as used herein means the transmittal of any information in any manner, including any oral, written, or electronic correspondence and evidence thereof, no matter how that correspondence or evidence is stored, memorialized, or fixed. It also includes any letters, emails, text messages or other instant messaging application, transcripts, records of statements, summaries, memoranda, reviews, reports, notes, logs, journals, minutes, or outlines concerning the transmittal of information.
2. The term “Document(s)” as used herein is synonymous in meaning and equal in scope to its usage in FRCP 34(a)(1)(A), which states, “any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form” or any designated tangible things, or entry onto land or other property. The term “Document(s)” refers to any document now or at any time in your possession, custody, or control. A person is deemed in control of a document if the person has any ownership, possession, or custody of the document, or the right to secure the document or a copy thereof from any person or public or private entity having physical possession thereof.
3. The term “Letter of Intent” as used herein means the letter dated December 8, 2017 from Periscope to Shared with an offer of acquisition.
4. The term “Meta” as used herein means Defendant Meta Platforms, Inc., and its predecessors, successors, assignees, parents, subsidiaries and divisions, affiliates, partners, or any current or former directors, officers, employees, agents, representatives, or any other person acting or purporting to act on its behalf, including, without limitation, Facebook, Inc.
5. The term “Sampford,” “You,” or “Your” as used herein means nonparty Sampford Advisors, Inc., any current or former directors, officers, employees, agents, representatives, or any other person acting or purporting to act on behalf of Samford Advisors, Inc.
6. The term “CIM” as used herein means a confidential information memorandum or other comparable document used to solicit potential buyers of a business.
7. The term “Person(s)” as used herein means any individual, corporation, general partnership, limited partnership, joint venture, association, joint-stock company, trust-incorporated organization, governmental, legal or political subdivision, and any non-natural persons of whatever nature. Unless noted otherwise, any reference to any individual person, either singularly or as a part of a defined group, includes that individual person's employees, agents, successors, assignees, heirs, and representatives.
8. The term “Relate To,” “Relates To,” and “Relating To” as used herein includes referring to, alluding to, responding to, evidencing, supporting, proving, disproving, concerning, connected with, commenting on, discussing, showing, describing, or analyzing, addresseing in any way or otherwise dealing with the subject matter of the request.
9. The term “Relevant Period” as used herein means January 1, 2008 to the present.
10. The term “Shared” as used herein means Plaintiff Shared Partnership and Shared, Inc., and their affiliates, predecessors, successors, assignees, parents, subsidiaries, and divisions.
11. The term “Periscope” as used herein means nonparty Periscope Equity, LLC, and its affiliates, predecessors, successors, assignees, parents, subsidiaries, and divisions.
12. The term “Valuation” as used herein means any quantitative or qualitative process that You conducted to determine the total enterprise value of Shared in connection with the Letter of Intent.
INSTRUCTIONS
8. The provisions of Fed.R.Civ.P. 26, 30, and 45 are incorporated by reference.
9. Each Topic calls for information, including information contained in or on Documents, that is in Your actual or constructive possession, custody or control, including information in the possession, custody or control of each entity or individual who acts, or who has acted as an employee, agent, representative, contractor, accountant, or attorney for You. Information is in Your possession, custody or control if You have the legal right to obtain the information, regardless of the information's source.
10. In order to bring within the scope of these topics all information that might otherwise be construed to be outside of their scope, the following rules of construction apply: (a) the singular shall include the plural and vice versa; (b) the connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the topics all responses that might otherwise be construed to be outside its scope; (c) the terms “any,” “all” and “each” shall be read to mean any, all, each, and every; (d) the present tense shall be construed to include the past tense and vice versa; (e) “on or about” when used in conjunction with a specified date means the period beginning one month before and ending one month after the specified date; and (f) references to employees, officers, directors or agents shall include both current and former employees, officers, directors and agents.
11. If any of these Topics cannot be addressed in full, it should be addressed to the extent possible, and an explanation should be provided as to why the requested information could not be provided fully.
12. In the event that You contend that any of the information sought by these Topics is objectionable, in whole or in part, You shall state with particularity each such objection and the basis therefore, and shall provide information responsive to the remainder of these Topics to the extent that You are not objecting to them. Any ground for objection that is not stated within the time provided by the Civil Procedure Rules shall be waived.
DEPOSITION TOPICS
TOPIC NO. 1 :
Sampford's business model during the Relevant Period, including without limitation, (i) the types of entities and organizations which it advises; (ii) other entities that Sampford advises and that it considers to be in the same, similar, or comparable markets as Shared; (iii) the process by which Sampford reviews, analyzes, and assesses its clients such that it can provide financial advising; (iv) any incentive structures that guide or otherwise affect Sampford's advising; and (v) Sampford's relationship with Shared.
TOPIC NO. 2 :
Sampford's understanding of Shared's business model during the Relevant Period, including without limitation, Sampford's understanding of (i) the types of advertising content that Shared places or publishes; (ii) Shared's methods for maximizing its advertising revenue; (iii) Shared's ability to understand its business partners' business models and tailor its advertising content to succeed with its business partners; (iv) Shared's financial health and strategic goals.
TOPIC NO. 3 :
Representations that Shared made to Sampford Relating To Shared's relationship with Meta during the Relevant Period, including without limitation, (i) Shared's understanding of Meta's Advertising Policies, terms, and conditions; (ii) Shared's understanding of changes to Meta's Advertising Policies, terms, and conditions and their effect on Shared's business; and (iii) any changes that Shared made to its business model or advertising content in light of changes to Meta's Advertising Policies, terms, and conditions.
TOPIC NO. 4 :
Any due diligence, now-your-client (“KYC”), assessment, analysis, audit, or Valuation that Sampford conducted or commissioned of Shared during the Relevant Period, including without limitation, (i) the types of materials, information, and data that was collected during such assessment; (ii) the Person(s) involved in the assessment; (iii) any materials, information, or data that was requested but not received, or otherwise unavailable to conduct the assessment; (iv) any assumptions relied upon in the assessment.
TOPIC NO. 5 :
The circumstances under which Shared issued a CIM on or about September 2017, including without limitation, (i) Sampford's involvement in the decision, drafting, and issuance; (ii) any financing or restructuring alternatives that Sampford proposed or Shared considered in lieu of issuing a CIM; (iii) the Persons to whom the CIM was issued and why; (iv) the Persons who made offers pursuant to the CIM; and (v) which of those offers were later accepted, rejected, or withdrawn and why.
TOPIC NO. 6 :
Sampford's understanding of Periscope's interest in investing in or acquiring Shared.
TOPIC NO. 7 :
The “Assumed Enterprise Value” reflected in the Letter of Intent, including without limitation, (i) any role or involvement that Sampford had in providing Documents and Communications that Periscope reviewed, considered, or relied upon in calculating the Assumed Enterprise Value; (ii) Sampford's perspective as to the accuracy of the Assumed Enterprise Value; and (iii) any amendments, alterations, corrections, or other changes to the Assumed Enterprise Value throughout the proposed transaction and the reasons for any such amendments, alterations, corrections, or other changes to the Assumed Enterprise Value.
TOPIC NO. 8 :
The negotiations between Shared and Periscope Relating To Periscope's proposed transaction to invest in or otherwise acquire Shared, including without limitation, (i) any due diligence, KYC, assessment, analysis, research, or Valuation that Periscope conducted or commissioned of Shared as a part of the proposed transaction; (ii) the Documents and Communications Periscope (or Persons on its behalf) requested, reviewed, considered, relied, or were provided as part of the transaction; (iii) any Documents and Communications Periscope requested but ultimately did not receive; (iv) the proposed structure of the transaction and how that structure was determined; and (v) the circumstances under which Periscope decided not to proceed with the transaction with Shared.
TOPIC NO. 9 :
Representations that Shared made (or were made on Shared's behalf) to Periscope (or those acting on Periscope's behalf) during the proposed transaction to invest in or otherwise acquire Shared, including without limitation, representations regarding (i) the financial condition of Shared and its principals; (ii) Shared's business, including its actual business and forecasts for future business; (iii) Shared's relationship with Meta; (iv) Shared's understanding of Meta's Advertising Policies, terms, and conditions; (v) and Shared's understanding of changes to Facebook's Advertising Policies, terms, and conditions and their effect on Shared's business.
TOPIC NO. 10 :
The result of the proposed transaction between Shared and Periscope, including without limitation, (i) the effect Periscope's decision not to invest in or acquire Shared had on Shared's business; (ii) alternative financing or restructuring options Shared pursued following Periscope's decision not to proceed with the transaction; (iii) Sampford's assessment regarding the desirability of those financing or restructuring options as compared to the transaction with Periscope; (iv) Sampford's involvement in securing any alternative financing or restructuring; and (v) Sampford's assessment of the ultimate success of any alternative financing option that Shared secured.