Facebook’s Regulatory Discovery Could Be Fair Game in Proposed Privacy Class Action

Judge Vince Chhabria, U.S. District Court for the Northern District of California

Facebook might be required to turn over information it was forced to give U.S. regulators in a case stemming from its Cambridge Analytica scandal.

Judge Vince Chhabria of the U.S. District Court for the Northern District of California floated the idea Monday as an avenue that could expedite a proposed class action over claims the social network breached its privacy guidelines when Facebook apps gathered unauthorized data from users indirectly through friends.

Chhabria said that tapping into the documents provided in other regulatory inquiries, such as the Federal Trade Commission probe earlier this year, would allow plaintiffs’ counsel to say, “Here are the 10 categories of documents shared with the FTC, we would like the first five.”

“Wouldn’t that be a lot more efficient?” he asked.

Facebook’s Gibson, Dunn & Crutcher attorneys pushed back against the idea.

“They’re confidential,” said Gibson Dunn’s Orin Snyder.. “I wouldn’t be surprised if the agencies would be opposed in our producing them.”

Snyder said that 90% of the information handed to regulators would not be relevant to the case. His team also would have to review the documents for this particular context, because they likely define responsiveness more generously when dealing with a regulator.

“We want to open the kimono and give everything, because they’re the government,” he said. “We’re going to be in a morass if you piggyback on disparate regulatory productions.”

Derek Loeser, a plaintiffs’ attorney from Keller Rohrback, said that sharing agency production requests is “not the least bit uncommon,” and expressed particular interest in an internal Facebook investigation mentioned in documents related to an inquiry led by Massachusetts Attorney General Maura Healey.

Chhabria, who last week denied Facebook’s request to file an interlocutory appeal before the U.S. Court of Appeals for the Ninth Circuit, also suggested kicking off discovery with the classwide claims and cross-motions for summary judgement.

Chhabria said beginning with discovery related to other class members would result in overlap, since the court will need a more general view of the company’s data sharing practices to understand what happened to the named plaintiffs in the case.

“It seems to me from this discussion that the best way to develop an understanding of how Facebook’s information sharing practices affected a plaintiff is to learn as much as we can about Facebook’s information sharing platform,” Chhabria said.

Snyder said that there were “not enough engineers on the globe” to perform the “theoretical exercise” of analyzing how the millions of Facebook apps interact with users.

The lawyer also noted that plaintiffs have the burden of proof. Requiring details about the identity of the allegedly infringing apps, the information they had access to, and Facebook’s efforts to restrict them would flip that burden on its head.

Discovery should be targeted to the 32 named plaintiffs in the case before Facebook has the burden to claim how ten million apps interact with 2 billion users on the Facebook platform, Snyder said,

“This is not the usual class action that comes before us where the claims are clear,” Snyder said. “This is a case that started out as a Cambridge Analytica case and it’s morphed into a different case. What if we found out that all of the named plaintiffs authorized friend sharing? They’d be out of luck.”

Snyder also said he’d prefer the regular way of doing things.

“I’m always so reluctant to do things the regular way,” Chhabria said.

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