Judge Davis of the BLS ordered Facebook to produce documents to Massachusetts Attorney General Maura Healey (AG). The AG obtained the order while investigating Facebook’s policies and protections related to user data. The AG’s decision to investigate Facebook was prompted, in part, by media reports about Cambridge Analytica’s misuse of Facebook user information, including private data associated with millions of Facebook users residing in Massachusetts.
Arguing protection afforded by the work-product doctrine and attorney-client privilege, Facebook refused to produce certain information generated in the course of its “App Developer Investigation” (ADI). Facebook had retained Gibson Dunn & Crutcher LLP to design and direct the ADI, the goal of which was to ferret out apps that misused Facebook user data. The AG disputed Facebook’s position and filed a petition in the BLS to compel Facebook’s compliance with her civil-investigative demand.
After observing that “[m]any trees, virtual and otherwise, have given up their lives to the . . . correspondence between Facebook and the [AG’s] Office,” Judge Davis ruled that the work-product doctrine does not apply to the ADI information sought by the AG. “[T]he history of Facebook’s app policing and enforcement efforts,” Judge Davis wrote, “compel[s] the conclusion that the ADI is not being undertaken by Facebook ‘in anticipation of litigation or for trial.’” And even if “the fruits of Facebook’s ADI” constituted work product, Judge Davis explained, the court “would conclude that the [AG] has demonstrated a ‘substantial need of the materials’ and that she is ‘unable without undue hardship to obtain the substantial equivalent of the materials by other means.’”
Judge Davis also rejected Facebook’s contention that the attorney-client privilege shielded the ADI information from discovery. According to Judge Davis, “the attorney-client privilege does not extend to any underlying facts or other information learned by Facebook during the ADI, including the identity of the specific apps, groups of apps, and app developers that have been subjected to a ‘detailed background check’ or ‘technical review’ by [Facebook].” Judge Davis further noted that Facebook’s broad claim of attorney-client privilege “is at odds” with the way in which the company “has [publicly] touted the ADI” and its “pledge to share information of suspected data misuse uncovered in the course of the ADI with its user community.”
Judge Davis gave Facebook 90 days produce the documents subject to his order.
The Business Litigation Session of the Massachusetts Superior Court
Docket Number: 1984CV02597-BLS1
Case Name: Attorney General v. Facebook, Inc.
Dates of Decision: January 16, 2020
Judge’s full name: Brian A. Davis
- Senior Editor, Co-Chair, Business Litigation Practice Group