Klein v. Meta Platforms, Inc.

Background

The Advertiser Plaintiffs and Consumer Plaintiffs in consolidated actions, collectively called the plaintiffs, and Facebook, Inc. asked the court to resolve a discovery dispute about the terms of a proposed protective order. A protective order controls how confidential materials exchanged during discovery may be used and disclosed. The court held a hearing on May 25, 2021.

Court’s rulings

Challenges to confidentiality designations

The plaintiffs wanted the protective order to allow any party or nonparty to challenge a confidentiality designation using the model protective order’s procedure. Facebook argued that a nonparty should have to show a legitimate basis before challenging a designation.

The court disagreed that a nonparty must make a particular showing to justify a challenge. It explained that discovery is generally presumed to be public and that the party seeking confidentiality must show good cause, meaning specific harm or prejudice that would result without protection. For practical reasons, however, the court required a nonparty to file a regularly noticed motion under Civil Local Rule 7-2 to challenge a designation. The procedures in sections 2.1 and 6.1 through 6.3 of the proposed order would apply only to challenges by parties. The court adopted Facebook’s proposed edit to sections 2.1 and 6.1.

Material previously made public

The court directed that a producing party may designate material as confidential even if someone else published it in violation of another court’s order. If the producing party knows about that publication, it should promptly tell the receiving party that it continues to seek confidential treatment in this case. The receiving party may challenge the designation under the protective order’s challenge procedures.

If a party receives material from a nonparty that obviously appears to be another party’s confidential information, the receiving party should make appropriate inquiries before treating the material as public. Disputes about continued confidential treatment may be resolved under the protective order’s challenge procedures.

Highly confidential information

The court adopted the model protective order’s definition of “highly confidential” information for this case.

Materials from government investigations

The plaintiffs proposed a special provision for highly confidential information produced by nonparties to the Federal Trade Commission or state attorneys general investigating alleged anticompetitive conduct by Facebook. The court declined to add that provision at that time because the government entities had not yet produced the materials to Facebook and the restrictions in the parallel government proceedings were not yet established. The court expected the parties to negotiate appropriate terms later, considering any other court orders or restrictions governing those materials.

Disclosure to deposition witnesses

The court distinguished between confidential and highly confidential materials. For confidential materials, the receiving party may show materials during a deposition to a party or nonparty witness who appears to have been the author, addressee, recipient, custodian, or source and previously had lawful access; to a witness the receiving party in good faith believes previously received or accessed the material; or to a witness whose disclosure is reasonably necessary and who signed the required acknowledgment. These restrictions do not apply if the designating party agrees or the court orders otherwise.

For highly confidential materials, the receiving party may show the materials during a deposition to a party or nonparty witness who appears to have been the author, addressee, recipient, custodian, or source and previously had lawful access, or to a witness the receiving party in good faith believes previously received or accessed the material. The parties may seek or agree to different treatment for particular documents and witnesses. A party may seek a specific protective order if a dispute arises during a deposition.

Lawyers’ summaries for class representatives

The plaintiffs proposed allowing their lawyers to share high-level summaries or characterizations of Facebook’s highly confidential material with class representatives. Facebook opposed that disclosure and proposed clarifying that lawyers could rely on their knowledge and examination of protected materials when giving legal advice. The court adopted Facebook’s proposal.

Contractual notice periods for nonparty information

The court provided that a nonparty must object or seek a protective order within 14 days after receiving the notice and accompanying information described in section 9(b). If the party from whom discovery is sought has a contractual obligation to give the nonparty a longer notice period, that party must inform the requesting party. In that situation, the producing party does not have to produce the nonparty’s material until the contractual notice period expires.

Disposition

The court ordered the parties to file a proposed protective order reflecting these rulings for the court’s review and approval no later than June 18, 2021. The opinion does not state that the underlying claims were decided.

Classification

This is a procedural order because it resolves a discovery and protective-order dispute rather than deciding the underlying claims.