Facebook Must Produce — Not Merely “Provide Access” — to Electronically Stored Information (ESI) in Native Formats
United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce electronically storedinformation (“ESI”), not merely “provide access” thereto on a commercial website that allowed it to restrict class action plaintiffs from reviewing those materials properly. The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation (Apr. 6, 2011) analyzed three important issues: (1) the importance of ESI Protocols, (2) production of ESI in native formats, and (3) production of documents versus “access” to them.
Three named plaintiffs brought a class action against Facebook for breach of contract and violation of California’s Unfair Competition Law. Each of the plaintiffs advertised on Facebook and alleged that Facebook misrepresented the quality of its click filters, which are meant to screen out certain clicks (“invalid clicks”) that do not meet specified requirements designed so that advertisers are not billed for them. When the plaintiffs were charged, they sued.
Discovery disputes ensued–surprise surprise–and plaintiffs filed their Motion To Compel in relation to three of these disputes.
- Plaintiffs allege that Facebook refused to agree to an ESI Protocol to set forth the manner and form of electronic production, including an agreement on search words or phrases, custodians, time frames and/or other terms that the parties would employ in producing ESI.
- Facebook uploaded its discovery responses to a commercial website in a manner that seriously limited the plaintiffs’ ability to review them.
- The documents to which Facebook provided access, as well as others that were actually produced, were not in their native format, and thus were unsearchable and unusable.
ESI Protocols have become an important part of Federal Rule of Civil Procedure Rule 26(f)’s mandate that litigants “meet and confer” in order to consider the nature and basis of their respective claims and defenses. While ESI Protocols are not mandatory, they encourage meaningful discourse that shapes how a case proceeds. Such discussions are vital not only to reduce litigation costs, but also to save courts’ precious time by honing the scope of lawsuits.
Facebook argued that an ESI Protocol in this case would impose “rigid, up-front requirements” because “forcing the parties to anticipate and address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process.” The court correctly deemed this argument “speculative,” adding:
The argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all.
Successful electronic discovery depends on open and good faith communication when the parties “meet and confer.” This requires thatopposing counsel cooperate to identify custodians and likely sources of relevant ESI, as well as the costs and steps required to access that information. Contrary to Facebook’s assertions, this hardly slows the process. Parties are able to narrow a lawsuit’s scope to preclude overbroad discovery requests for “oppressive, tactical reasons . . . rather than legitimate [ones].” In place of gamesmanship, cooperation substitutes transparency and communication. According to Peak Discovery, an e-Discovery support company:
Careful bilateral negotiation during the “Meet & Confer” period prior to the review process can prevent unnecessary cost and needless disputes with your adversary. No review, no matter how efficient and accurate, can be a success if the parties are constantly arguing before a judge.
Surviving the Perfect e-Discovery Storm 27 (Legal Management June/July 2010).
Moreover, meeting and conferring requires lawyers to know who their client’s data custodians are, something that’s not evident to all counsel. However, the notion that Facebook’s large, prestigious law firm couldn’t obtain such information from Facebook (of all companies) is, well . . . a stretch. Let’s leave it at that.
Having considered these arguments, the court emphasized that “electronic discovery should be a party-driven process” and that that Rule 26(f) requires that the parties meet and confer to develop a discovery plan. (Given this requirement, the fact that a well-versed litigant such as Facebook would simply flout the mandate of Federal Rule of Civil of Procedure 26(f) lends credence to the notion that it did so merely to starve the plaintiffs of oxygen.)
Methods of ESI Production
The court next considered the plaintiffs’ request that all ESI already produced be re-produced in its native format? Why? Because Facebook produced documents in non-searchable, unusable formats, including an 18,000-page customer complaint database in PDF format even though Facebook does not maintain the database in that format. Producing dynamic documents such as this one in static format is discovery abuse. And had the parties met and conferred in the first place, the question of format could have been addressed then, with all the proper procedural mechanisms under Rule 26(f) for Facebook to have objected had it so desired. It opted out.
Next, Facebook did not produce all ESI to the plaintiffs directly, but rather uploaded certain documents to a commercial website, Watchdox.com. That site, which seems fairly sophisticated, forced the plaintiffs to review the documents on a computer. They could not be printed, which Facebook attempted to justify by arguing that it feared that confidential documents would be turned over to a third party. The court found Facebook’s reasoning to be “purely speculative,” especially in light of a two-tiered protective order that accommodated the need for confidentiality. Some documents had expiration dates after which the plaintiffs could no longer view them. And Facebook rendered many of the documents on the site non-searchable or non-annotatable. Did this really happen?
In footnote 2 of its order, the court set forth what I believe to be the most important proposition of its Order:
As plaintiffs point out, if Facebook wanted to place documents on a secure website such as Watchdox.com, it could have raised that issue before it agreed to a stipulated protective order that clearly contemplates producing documents to the other side, not merely providing access to them. (second emphasis added).
The court thus ordered Facebook to produce any documents that had been uploaded to Watchdox.com in their native searchable formats. The same applied to any documents that had not been uploaded but were unsearchable.