Judge Tells Facebook Privacy Attys To Use Zoom, Not Email

By Dorothy Atkins
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Law360 (April 17, 2020, 7:56 PM EDT) -- A California magistrate judge overseeing discovery in Facebook users' privacy suit over the Cambridge Analytica scandal told opposing attorneys Friday to "stop with the emails and letters" and meet informally on Zoom instead, saying everyone's distracted and "doesn't know if their law firm is going to be here in a year."

During a hearing held over using Zoom Video Communications Inc.'s video conferencing service, U.S. Magistrate Judge Jacqueline Scott Corley said the parties' joint status statement listing each side's discovery issues was "a bit like two ships passing in the night." She said she's "throwing them out the door" and will start holding status conferences on discovery matters every two weeks on Friday to ensure that the parties are on pace to meet deadlines set by the presiding judge, U.S. District Judge Vince Chhabria.

The magistrate judge said she wants the attorneys to have regular video meetings and asked to "slow down on your emails."

"Let's just try to do it informally," the judge said, adding that the approach has been successful for the parties in the Juul multidistrict litigation, which she's also presiding over on discovery matters. "Stop with the emails and letters. Let's say every other day we'll have these Zoom [meetings]. Let's do that, so no one gets to feeling like we're chasing each other down."

Judge Corley stressed that these are unprecedented times, due to the novel coronavirus outbreak, and the attorneys should keep that in mind as they're trying to resolve discovery disputes.

"We're working hard, but everyone is distracted. Everybody doesn't know if their law firm is going to be here in a year," she said. "Let's all be cognizant of that ... that there are things going on here that are beyond our control and that are frankly bigger and let's keep that all in perspective."

While the judge suggested that the attorneys use Zoom's video conferencing tool to hash out their discovery grievances, the Silicon Valley startup — whose popularity has exploded since the onset of the coronavirus pandemic — has recently been hit with its own privacy lawsuits. The suits, which are brought by investors and users, accuse the company of unlawfully sharing personal data with third parties such as Facebook Inc. and LinkedIn Corp. and of misrepresenting the nature of its privacy and data security practices, among other things.

Zoom's security came under fire in March after there were widespread reports of "Zoom-bombing" cyberattacks, when hackers pop into and disrupt meetings on the video-conferencing service. The FBI has since published a letter warning users and the U.S. Department of Defense has barred all DOD personnel from using the service.

Judge Corley's comments came during a hearing on discovery disputes in the consolidated MDL over nationwide allegations that Facebook violated a host of laws by disclosing users' sensitive information to tens of thousands of app developers and business partners without consent. The information purportedly includes users' photos, religious preferences, video-watching habits, relationships, private messages and information that could reveal their location.

The allegations stem from the March 2018 revelation that a third-party app developer had taken personal data from about 87 million unsuspecting Facebook users and sold it to Cambridge Analytica, a U.K.-based political consulting firm hired by the 2016 Trump campaign.

After the bulk of the case survived Facebook's bid to toss the suit, in March Judge Chhabria greenlighted discovery and assigned Judge Corley to resolve any discovery disputes that arise.

In a joint status report filed Thursday, Facebook users and the company listed off multiple issues that the parties haven't agreed on, including custodians, what electronically stored information process should be implemented and search terms.

During the hearing Friday, the users' attorneys also argued that the company hasn't produced all responsive documents to their discovery requests related to government investigations.

However, Facebook's counsel, Orin Snyder of Gibson Dunn & Crutcher LLP, told Judge Corley that there are "literally dozens and dozens and dozens of active and inactive investigations" launched in different jurisdictions and the users aren't entitled to all documents that were produced in every investigation. However, he acknowledged that there is some overlap in the document production.

Judge Corley didn't rule on the matter, but she said she wants the parties to either resolve the custodian issue by the next meeting on May 1, or have a plan to resolve it, and a proposal for electronically stored information.

She wrapped the hearing noting that Judge Chhabria is "well aware that we're in a different world now and he's not going to do anything that would prejudice one side." She added that she is here to help them resolve their disputes efficiently.

"I will work as long as needed, and you can tell your clients that the rate stays the same," she said.

Facebook is represented by Orin Snyder of Gibson Dunn & Crutcher LLP.

The Facebook users are represented by Derek W. Loeser of Keller Rohrback LLP and Lesley E. Weaver of Bleichmar Fonti & Auld LLP.

The case is In re: Facebook Inc. Consumer Privacy User Profile Litigation, case number 3:18-md-02843, in the U.S. District Court for the Northern District of California.

--Additional reporting by Allison Grande. Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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