Facebook's Unilateral Discovery Decision Not OK

The eDiscovery Resource Center™ is Bloomberg BNA’s comprehensive research solution for litigators and in-house counsel who require authoritative guidance on the handling,...

By Tera Brostoff

Oct. 23 — Facebook can't unilaterally decide what electronically stored-information—including metadata—is responsive to a users' requests for production, the Northern District of California held Oct. 14.

Magistrate Judge Maria-Elena James rejected defendant Facebook Inc.'s objections to motions to compel ESI related to Facebook's processing of its users' private messages. Facebook argued that it had produced responsive data and that it needn't hand over information it deemed irrelevant or overly burdensome to produce. Facebook's argument that it had already produced the source code that would explain the answers to the production requests—a production allegedly totaling 10 million lines of code—failed to sway the court.

“Facebook's own declarant explains that it ‘would be exceedingly burdensome to review the source code in its entirety'…But seemingly this is what Facebook wishes Plaintiffs to do, instead of working together to more efficiently locate and uncover the information,” the court said.

Facebook Allegedly Using Private Messages

Matthew Campbell and his co-plaintiffs in the putative class action sued Facebook, arguing the company systematically intercepted its users' private messages without their consent in violation of the Wiretap Act and the California Invasion of Privacy Act. According to Campbell, Facebook uses a ‘web crawler' software application to scan message URLs. Facebook then allegedly uses the information from the URLs to assess user data, including their “Like button” use, to target advertising efforts.

The parties have filed joint discovery letters outlining their disagreements. First, they dispute whether Facebook must produce documents regarding how it monetarily values information it obtains by allegedly scanning the messages. The second letter argues whether Facebook must produce an interrogatory response and documents about how it processes those messages.

Monetary Value Dispute 

The plaintiffs filed requests for production for any documents and ESI related to Facebook's efforts to assign a monetary value to its users in an effort to discover how Facebook generates profits in order to analyze the role played by users' private message and “Likes.”

Facebook objected, stating the plaintiffs are not entitled to documents about how Facebook generates profits. In addition, Facebook stated it could not find documents showing how it directly profited from the alleged interceptions.

But the court was not swayed by this argument.

“Seemingly, because Facebook located no information it viewed as on point, Facebook now believes it should not have to produce any other information,” the court said. “But as Plaintiffs point out, even though Facebook itself may not have determined the independent value or profits it obtained from scanning private messages, expert analysis of the information Plaintiffs seek may assist them in making that determination.”

Source Code Not Enough

As for the second dispute, the plaintiffs requested information related to the processing of each private message with a URL, including related ‘objects and associations.' The plaintiffs defined those objects and associations as the metadata structures that Facebook generated to catalog its users' online activity. After a meet and confer, the parties narrowed the request to 19 specified messages. Facebook was able to locate 16. Facebook produced documents responding to the request, but the plaintiffs considered the production inadequate. They argued Facebook provided printouts from unidentified databases that lacked the necessary context and breadth to answer their interrogatory, and wholly ignored their request for responses related to how the objects and associations were used.

Facebook objected, arguing it already produced the information that is relevant in the form of source code, which demonstrates how Facebook scans users' messages. But the plaintiffs argued that while the source code can help them understand the processes Facebook employs, they want to learn what specific data was generated by Facebook and how it was used.

“Having considered the foregoing arguments and carefully reviewed the supportive documents, the Court finds Facebook must produce the requested discovery,” the court said, agreeing with Campbell. “First, the information requested goes not only to Plaintiff's affirmative claims, but also Facebook's defenses.”

The court said it was not persuaded by Facebook's burden argument. Facebook's Engineering Manager Dale Harrison stated it took him more than 25 hours of work over two months to write new code and conduct the manual searches needed for the production. He argued that production of all the objects related to the 16 private messages was “likely impossible.”

While the court agreed that Facebook could be correct that the source code produced may provide much of the sought discovery, the source code nonetheless consists of over 10 million lines.

“Rather than have experts duel over technical coding, Plaintiffs can use a sworn interrogatory response in conjunction with related documents to show Facebook's actions,” the court said.

The court ultimately concluded that Facebook must provide plaintiff with a list of objects, noting that the Engineering Manager's response may call into question whether he “is the appropriate person to respond to Plaintiffs' requests.”

Both motions to compel were granted.

Magistrate Judge Maria-Elena James wrote the order.

David Taylor Rudolph and Michael W. Sobol, of Lieff Cabraser Heimann and Bernstein LLP in San Francisco, represented Campbell.

Christopher Chorba of Gibson, Dunn & Crutcher LLP in Los Angeles, represented Facebook.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com.

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com.

The full text of Campbell v. Facebook Inc. is available at http://www.bloomberglaw.com/public/document/Campbell_v_Facebook_Inc_No_13cv05996PJH_MEJ_2015_BL_340418_ND_Cal