Discovery can be hard. But plaintiffs in the class action against Facebook — or Meta or whatever we’re supposed to call it these days — think the social media giant and its attorneys from Gibson Dunn have made it a lot harder than it needs to be. And they’ve got a hefty sanctions motion over it.
First noted by Reuters, the newly unsealed motion in the Cambridge Analytica class action seeks around $854K in compensation for alleged bad faith in delaying the discovery process. And while there are indications that Facebook and Gibson Dunn have moved more swiftly in recent days, U.S. District Judge Vince Chhabria noted back in February that he’d “developed ‘quite a strong preliminary view’ that the company and Gibson Dunn had engaged in sanctionable conduct.”
Which is never a great message to receive from a federal judge.
As the motion states:
Most fundamentally, the statements of Facebook’s counsel at the January 19, 2022 hearing indicate that the delays here were not accidental, but a two-step litigation strategy of bad faith: first, delay discovery on the ground that it is too early; second, evade it on the ground that it is too late. This strategy merits sanctions.
According to plaintiffs’ attorneys from Keller Rohrback and Bleichmar Fonti, a number of document requests adjudicated by the special master last fall remained unfulfilled as of mid-February and Facebook still hadn’t produced any documents on a number of those requests as of mid-March. Another dispute seems to reveal a troublesome reversal on Gibson Dunn’s part:
At the February 10 conference, though, attorney Snyder stated that Facebook would be able to produce all ADI materials “within one month, if not sooner.” Ex. 28 at 13:4–5. The Court responded that they needed be produced “21 days from today.” Id. at 13:10. “That’s fine, your Honor,” replied attorney Snyder. Id. at 13:11.
These statements cast grave doubts on past representations. When Facebook moved for reconsideration of the Special Master’s initial ADI order, counsel claimed that producing all ADI communications would be wildly burdensome. One of Facebook’s attorneys claimed, for example, that producing the communications would “delay the case for at least another year while we collect, review, and analyze millions of additional documents.”
Now… on the one hand, discovery is a fluid process and tasks that appear onerous at first can ultimately turn out to be mundane. On the other hand, it’s a hell of a leap from “delay the case for at least another year” to “21 days from today” being “fine.”
There are allegations of contentious negotiations over depositions Facebook claimed it needed to take urgently… and then canceled 36 hours beforehand claiming that plaintiffs hadn’t produced the necessary documents. Somewhat begging the question why the depositions were scheduled in the first place. Another set of allegations claim Facebook used all these delays “to argue that it was now too late for Plaintiffs to be seeking rulings on discovery disputes,” which if accurate is chutzpah of the highest order.
The motion is dated March 14, but just got unsealed. Facebook and Gibson Dunn are due to respond next week.
Unless they request a postponement, which would be totally epic.
Facebook, Gibson Dunn face $854K sanctions demand in Cambridge Analytica class action [Reuters]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
