Facebook executives emails subject to discovery, says special master

Communications from Facebook chief executive Mark Zuckerberg and chief operating officer Sheryl Sandberg will be subject to discovery in a lawsuit over letting third parties such as political consulting firm Cambridge Analytica access users' private data, according to court documents unsealed on Sunday.

The Facebook executives likely "possess unique, relevant information because they were key decision-makers related to issues at the heart of plaintiffs' allegations," ruled court-appointed discovery special master Daniel B. Garrie of JAMS.

U.S. District Judge Vince Chhabria also granted Monday a request from Garrie to be exempted from PACER user fees. He concluded "public access to information will be promoted if he has free access to the entire docket in this case" because "Garrie is performing a public function as special master in this case."

Lesley Weaver, a partner at Bleichmar Fonti & Auld LLP and a lead attorney on the case, declined to comment. Neither Facebook, now known as Meta, nor its attorneys at Gibson, Dunn & Crutcher responded to requests for comment.

The proposed class action was brought by users in dozens of states after the March 2018 revelation that Cambridge Analytica illegally obtained data on 87 million users. The claims have since expanded to target the entirety of the company's data-sharing practices.

Facebook has argued that documents from Zuckerberg and Sandberg are unlikely to have new information that's not contained in the current scope of discovery and that they don't possess unique communications relevant to the case.

More than 18 months into production, Facebook has handed over roughly 500,000 documents from the files of 81 custodians. In re: Facebook Consumer Privacy User Profile Litigation, MD18-02843 (N.D. Cal., filed June 6, 2018).

But Garrie found in a sealed order issued in March that Zuckerberg and Sandberg probably have information that differs from discovery already obtained from other custodians. He noted their participation in decisions related to friend-sharing, whitelisting, business partners and third party misuse of information.

For instance, in a 2012 email cited in the ruling, Zuckerberg said that he was "involved in both the high-level decision making and execution of a plan," which was redacted. Sandberg also indicated her part as a "key decision-maker in her communications."

Garrie held that the executives are likely to have responsive documents not available through other data sources because they could've directly communicated with each other, to the board of directors or third parties without including other court-appointed custodians.

Discovery closes in June with a January deadline for substantial document production.

"There remains ample time for Facebook to complete this targeted collection and review with an appropriate protocol," Garrie wrote.

Communications from Sandberg have proved useful in another lawsuit against Facebook over claims that company executives knew for years that its advertising metrics were inflated. In that case, she "acknowledged in an internal email she had known about problems with Potential Reach for years," according to redacted court documents. DZ Reserve v. Facebook Inc., CV18-04978 (N.D. Cal., filed April 23, 2021).

Chhabria last year ruled that United Kingdom citizens cannot sue Facebook in U.S. courts for data privacy violations. He pointed to a forum selection rule in Facebook's terms of service required to comply with the European Union's General Data Protection Regulation prohibiting UK residents from pursuing lawsuits against the California-based company outside their home courts.