This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- A ruling from the U.S. District Court for the Eastern District of Michigan denying the Plaintiffs’ motion to compel the Defendant to use specific search terms to perform an additional search of certain custodians’ files to respond to one of Plaintiffs’ document requests because the additional search methodology was not proportional to the needs of the case
- An order from the U.S. District Court for the District of Massachusetts ordering discovery to proceed against a Defendant in France notwithstanding objections raised under the European General Data Protection Regulation (GDPR), concluding that the importance of evidence in the possession of the French Defendant supported the discovery notwithstanding concerns of international comity
- A decision from the U.S. District Court for the Eastern District of Michigan in which a magistrate judge recommended terminating sanctions (the entry of default judgment) against the Defendants following repeated discovery abuses, including the failure to preserve documents and relevant devices, reliance by counsel on searches performed by the clients, and false statements to the court
- An opinion from the U.S. District Court for the District of Columbia granting an application by the Republic of the Gambia pursuant to 28 U.S.C. § 1782 for production of content that had been deleted by Facebook for use in its litigation against the Republic of the Union of Myanmar at the International Court of Justice, notwithstanding objections raised under the Stored Communications Act (SCA)
1. A ruling from the Eastern District of Michigan denying the Plaintiffs’ motion to compel the Defendant to use specific search terms to perform an additional search of certain custodians’ files to respond to one of Plaintiffs’ document requests because the additional search methodology was not proportional to the needs of the case.
In Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. June 9, 2021), U.S. Magistrate Judge Elizabeth A. Stafford denied the Plaintiffs’ motion to compel the Defendant to use specific search terms to perform an additional search of certain custodians’ files to respond to one of Plaintiffs’ document requests, finding that Plaintiff had failed to establish the requested additional search methodology was proportional to the needs of the case.
In this product liability case, Plaintiffs filed a motion near the end of the discovery period to compel Defendant to apply certain search terms to the documents of three custodians to locate and produce documents related to the presence of hydrocarbons (specifically engine oil) in other parts of vehicles manufactured by Defendant. Id. at *1. Plaintiffs acknowledged that this so-called “hydrocarbon intrusion” concept was not explicitly alleged in their complaint but believed that recently uncovered evidence showed that it could be a cause of the defect at issue in the case. Defendant objected to the request as overly broad and unduly burdensome but nonetheless had conducted a search and produced 769 pages of documents related to this issue. Defendant argued on this basis that Plaintiffs had failed to show that more responsive materials existed.
Judge Stafford began her analysis with a survey of the applicable Federal Rules of Civil Procedure, including that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Id. (citing Rule 26). She noted that relevance is an “extremely low bar” and that the proportionality factors are “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. (citing Rule 26(b)(1)).
Judge Stafford next addressed the applicability of proportionality to the discovery dispute, noting that Plaintiffs had argued that discovery under the Federal Rules is liberal and wide-ranging but only briefly addressed the proportionality factors in their papers. Id. at *2. She noted that “many attorneys gloss over the operative rules requiring an assessment of proportionality,” citing the Supreme Court’s decision in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, where the Supreme Court said that the “key phrase” of Rule 26(b)(1) (“relevant to the subject matter involved in the pending action”) had been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” But Judge Stafford noted that Rule 26(b)(1), as amended, does not include that “key phrase” from Oppenheimer and more narrowly allows discovery that “is relevant to any party’s claim or defense and proportional to the needs of the case.” Id. (citing Rule 26(b)(1)). Quoting from the 2015 advisory committee’s notes to Rule 26, Judge Stafford noted that “[t]he 2015 rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”
Judge Stafford explained that “[t]he key phrase of the current Rule 26(b)(1) is the one describing proportionality” because “the change ensures that the parties and courts share the collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id. at *3 (citing Helena Agri-Enterprises, LLC v. Great Lakes Grain, LLC, 988 F.3d 260, 273 (6th Cir. 2021) (cleaned up)). She continued that “[i]t is now the power — and duty — of the district courts actively to manage discovery and to limit discovery that exceeds its proportional and proper bounds.” Id. (cleaned up). Judge Stafford concluded that under amended Rule 26(b)(1), a court does not fulfill its duty when it compels discovery based on relevance alone.
With these principles in mind, Judge Stafford found that Plaintiffs had failed to show that another search of Defendant’s custodians’ accounts would be proportional to the needs of the case by arguing that materials about hydrocarbon intrusion were highly relevant to their claims. Judge Stafford initially focused on Plaintiffs’ claim that Defendant’s earlier searches for documents were insufficient to uncover materials about hydrocarbon intrusion’s causing the alleged brake defect, describing the court’s orders on an earlier motion to compel and noting that her review of the documents Plaintiffs pointed to in support of this argument failed to reveal an obvious gap in the production.
Defendant argued that it had produced over 100,000 pages of documents in response to Plaintiffs’ requests for production of documents and interrogatories and noted that none of the deposition testimony in the case (including testimony pursuant to Rule 30(b)(6)) showed that more documents about the hydrocarbon issue existed. Id. at *4. Defendant also claimed that it had fully responded to the request at issue in Plaintiffs’ motion to compel as required by Rule 26(g), which requires an attorney to sign a discovery response, thus certifying that the response was made after a reasonable inquiry, and Rule 34(b)(2)(C), which requires a responding party to state whether it withheld any responsive material as a result of its objections.
Judge Stafford further explained that “absent credible evidence, the responding party’s representation that there are no additional documents is sufficient to defeat a motion to compel.” Id. (collecting cases). “Credible evidence is more than mere speculation and must permit a reasonable deduction that other documents may exist or did exist and have been destroyed. Specifically, this might include presentation of responsive, but withheld, documents that the moving party obtained from another source or testimony demonstrating knowledge of the existence of responsive documents.”
While Judge Stafford noted Plaintiffs’ suspicion that Defendant had not produced all materials that existed in response to their request, she found that the emails Plaintiffs presented did not support their suspicion, and the deposition testimony highlighted by Defendant undermined Plaintiffs’ argument that “another search would unearth a meaningful amount of material not captured by earlier searches.” She concluded that “[t]urning over every stone to see if more documents about hydrocarbon intrusion exists would not be proportional to the needs of the case.”
2. An order from the District of Massachusetts ordering discovery to proceed against a Defendant in France notwithstanding objections raised under the GDPR, concluding that the importance of evidence in the possession of the French Defendant supported the discovery notwithstanding concerns of international comity.
In AnywhereCommerce, Inc. v. Ingenico, Inc., 2021 WL 2256273 (D. Mass. June 3, 2021), U.S. District Judge Indira Talwani granted reconsideration of an order in which she had applied the 2018 French analogue of the European GDPR to allow discovery to proceed against domestic defendants but not a French defendant, concluding that the importance of evidence in the possession of the French Defendant required the French Defendant to provide discovery notwithstanding concerns of international comity.
Plaintiffs in this action had filed a motion to compel discovery of material that was in the possession of one corporate Defendant in France, or that had originated in France but was now in the possession of domestic United States defendants. Defendants opposed the motion to compel on the grounds that the GDPR precluded all Defendants from producing the requested materials. Id. at *1.
In a prior order on the Plaintiffs’ motion to compel, Judge Talwani had concluded that the GDPR did not limit the court’s authority to order Defendants to produce evidence, even assuming that production of the documents would run afoul of the GDPR. She had considered the GDPR as an objection by a foreign state over the discovery sought by Plaintiffs to the extent that the requested discovery would impinge on protections the GDPR provides to French nationals and noted that the factors set out in the Restatement (Third) of Foreign Relations Law § 442(1)(c) applied to such an objection. These factors are (1) the importance to the litigation of the documents or other information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance would undermine important interests of the United States, or compliance would undermine important interests of the state where the information is located.
In connection with the prior order, Plaintiffs had represented that they expected that much of the requested material was located in the United States and in the possession and control of the domestic Defendants. Id. at *2. Judge Talwani therefore had found that considerations of comity required avoiding potentially cumulative foreign discovery, and she bifurcated her analysis by excluding from her order any documents in the possession and control of the French Defendant and focused only on those documents in the possession and control of the domestic Defendants (even if they might have originated in France and be subject to the GDPR). She ultimately concluded that the restatement factors supported Plaintiffs’ argument that the material should be produced over any objections arising from the GDPR, and she ordered the production of the requested documents by the domestic Defendants.
Plaintiffs moved for reconsideration of the prior order on the grounds that “important documents and evidence relevant to Plaintiffs’ claims are in France,” a point on which the parties seemed to agree. Judge Talwani found that reconsideration was appropriate because her prior order was based on her misapprehension that discovery in could meaningfully proceed while also being limited to the domestic Defendants.
Judge Talwani then moved on to addressing the relevant factors from the Restatement (Third) of Foreign Relations Law § 442(1)(c) as they applied to evidence in the possession of the French Defendant, noting that many of the same considerations from her prior order still applied and weighed in favor of disclosure. In particular, she explained that (1) the documents and information requested continued to be of substantial importance to the litigation; (2) Defendants did not contend that the discovery requests raised concerns about disclosure of individuals who were uninvolved in the events giving rise to the present dispute; (3) there remained no mechanism for Plaintiffs to discover substantially equivalent information through other means; and (4) the United States continued to hold an important interest in rendering an adequately informed decision as to the rights of the parties to this action.
Judge Talwani noted that the only factor that differed from her prior analysis was the question of whether the information at issue originated in the United States or abroad, and she noted that the parties seemed to agree that most of the responsive documents either originated abroad or were located abroad. And while the location of the materials is a “weighty consideration in the comity analysis,” Judge Talwani nonetheless found that this factor did not override the other four factors that “tilt heavily in favor of disclosure.” Id. at *3.
Judge Talwani concluded by noting that the protective order entered into by the parties and ordered by the court was “a final consideration that is central to the court’s analysis but does not fall squarely into the factors identified by the Restatement.” In this context, she stated that she was “cognizant of France’s interest in ensuring that its nationals are afforded the rights provided under the GDPR to protect against the commoditization and/or distribution of their personal information” but found that the protective order allowed Defendants to designate any material subject to the GDPR as “Highly Confidential-Attorneys’ Eyes Only.” This would require specific procedures in place as to how any such material could be disseminated and provided that upon the conclusion of the litigation, the materials were to be returned or destroyed, which ensured that the protections provided by the GDPR would be maintained throughout and following the proceeding.
Finally, Judge Talwani denied an alternate proposal by Defendants seeking to limit any order compelling the production of documents to those belonging to the custodians identified in the parties’ initial disclosures. She noted that initial disclosures are primarily a tool for a party to share the factual and legal contentions underlying their own cases, not witnesses or material that may be helpful to the opposing party.
3. A decision from the Eastern District of Michigan in which a magistrate judge recommended terminating sanctions (the entry of default judgment) against the Defendants following repeated discovery abuses, including the failure to preserve documents and relevant devices, reliance by counsel on searches performed by the clients, and false statements to the court.
In State Farm Mutual Automobile Insurance Co. v. Max Rehab Physical Therapy, LLC, 2021 WL 2843832 (E.D. Mich. June 28, 2021), aff’d 2021 WL 3930133 (E.D. Mich. Sept. 2, 2021), U.S. Magistrate Judge Elizabeth A. Stafford recommended terminating sanctions — the entry of default judgment — against Defendant, following repeated discovery abuses, including the failure to preserve documents and relevant devices, reliance by counsel on searches performed by the clients, and false statements to the court.
During discovery in this insurance dispute alleging a fraudulent billing scheme, Plaintiff claimed that Defendants repeatedly failed to meaningfully respond to Plaintiff’s interrogatories and document requests. Id. at *1. Plaintiff filed two motions to compel, which the court granted. The court had also found that Defendants’ boilerplate objections constituted a waiver of their objections to Plaintiff’s discovery requests and, after the second time compelling Defendants to comply with Plaintiff’s discovery requests, ordered that no further extensions of the discovery schedule would be granted. After this final extension expired, Plaintiff moved to appoint a forensic investigator and to allow Plaintiff to conduct additional discovery due to Defendants’ continued failure to respond. Id. at *2. Magistrate Judge Stafford found that granting such an extension would violate the district judge’s prior order to grant no further extensions and instead ordered Plaintiff to file a motion for default judgment.
Magistrate Judge Stafford began her analysis by reviewing the Sixth Circuit’s four-factor test to determine whether the sanction of default judgment was appropriate pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi): (1) whether the disobedient party acted in “willful bad faith,” (2) whether the moving party “suffered prejudice,” (3) whether the court had warned the disobedient party of possible sanctions, and (4) whether less drastic sanctions had been considered or imposed. Magistrate Judge Stafford noted that while the sanction of default judgment is an extreme sanction, it is warranted when no alternative sanction would sufficiently protect the integrity of the proceeding. She also noted that while there was no single, dispositive factor, “bad faith is the preeminent consideration.” She then considered each of the factors in turn.
Magistrate Judge Stafford found that the Defendants had acted in willful bad faith, which meant displaying “either an intent to thwart judicial proceedings or a reckless disregard for the effect of [their] conduct on those proceedings.” She detailed Defendants’ “intentional or reckless” discovery obstructions, including that Defendants had admitted to “cut and paste” boilerplate objections to Plaintiff’s discovery requests and had twice ignored orders to produce documents. Id. at *3. She further noted that Defendants had made a blanket denial that the business used email, phones, or computers, which was later proven untrue, and had produced only 39 emails in discovery.
With respect to the completeness of Defendants’ document production, Magistrate Judge Stafford noted that Defendants’ counsel had signed supplemental responses to discovery requests stating that “all available documents, including the requested emails,” were provided to Plaintiffs and that “[t]he representation of a responding party’s attorney that no other documents exist is sufficient to defeat a discovery motion absent credible evidence that the representation is inaccurate.” (collecting cases) (cleaned up). However, Judge Stafford found that Defendants’ claim that they had produced all responsive emails “strains credulity.” In particular, she noted that counsel for Defendants had acknowledged that no one from his firm had searched certain email accounts but instead relied on the clients’ assertion that they had searched those accounts and found no relevant emails. Magistrate Judge Stafford stated that “[b]lindly relying on a client about the identification, preservation, and collection of [electronically stored information (ESI)] is ... not reasonable, especially when the client has been known to be less than candid.”
Magistrate Judge Stafford detailed numerous additional discovery abuses, including that Defendants had destroyed relevant records after the lawsuit was initiated, that one defendant submitted a “plainly false” affidavit regarding the searches for ESI, that document preservation obligations were not communicated to key witnesses, and that relevant devices were not preserved or searched. Id. at *3–*4. Judge Stafford stated that “[Plaintiff] and this Court have been ringing alarms about [D]efendants’ discovery failures for the past year, but [D]efendants’ approach to their discovery obligations remained dismissive and cavalier, and likely intentionally obstructive. Defendants’ persistent noncompliance with discovery rules and the orders to enforce them comprises willful bad faith, satisfying the first prong of the default judgment analysis.” Id. at *4.
With respect to the second factor in her analysis, Magistrate Judge Stafford found that Plaintiff was prejudiced by Defendants’ actions. Id. at *5. “A party is prejudiced when it is unable to secure the information requested and required to waste time, money, and effort in pursuit of cooperation which the opposing party was legally obligated to provide.” Magistrate Judge Stafford stated that despite years of diligent effort and multiple court orders, Plaintiff was unable to secure the discovery requested from Defendants or received it near or after the close of discovery.
With respect to the third factor in her analysis, Magistrate Judge Stafford noted that while a specific warning of the possibility of a default judgment as a sanction was not required, Defendants had been explicitly warned of such a possibility.
Finally, Magistrate Judge Stafford noted that lesser sanctions had been imposed and considered and that no further lesser sanctions could remedy the prejudice Plaintiff had suffered. Because all four factors weighed in favor of the granting default judgment as a sanction against Defendants for their repeated discovery failures, Magistrate Judge Stafford recommended that Plaintiff’s motion for default judgment be granted.
Thereafter, neither party filed any objections to Magistrate Judge Stafford’s recommendation, and U.S. District Judge Linda V. Parker adopted it and granted default judgment for the Plaintiff. 2021 WL 3930133, at *1.
4. An opinion from the U.S. District Court for the District of Columbia granting an application by the Republic of the Gambia pursuant to 28 U.S.C. § 1782 for production of content that had been deleted by Facebook for use in its litigation against the Republic of the Union of Myanmar at the International Court of Justice, notwithstanding objections raised under the SCA.
In Republic of the Gambia v. Facebook, Inc., 2021 WL 4304851 (D.D.C. Sep. 22, 2021), Magistrate Judge Zia M. Faruqui granted in part and denied in part the Republic of the Gambia’s (The Gambia) application pursuant to 28 U.S.C. § 1782 for production of content deleted by Facebook for use in its litigation against the Republic of the Union of Myanmar (Myanmar) at the International Court of Justice. Id. at *1.
The Gambia sought accounts and other content used by Myanmar government agents that sparked the genocide of the Rohingya, a religious minority in Myanmar. The United Nations Human Rights Council (U.N. Mission) found that Myanmar government officials relied on Facebook to credibly spread fake news to develop a negative perception of Muslims in Myanmar as early as 2012. Id. at *2. Facebook began deleting and banning accounts of key individuals and organizations in Myanmar in August 2018 but preserved the content it deleted.
At issue in this case were The Gambia’s three document requests in connection with this deleted content: (1) public and private communications associated with the deleted content; (2) documents associated with Facebook’s internal investigation on how it identified the content deleted; and (3) a Rule 30(b)(6) deposition regarding all of the above. Id. at *4. Facebook argued that the Gambia’s request (1) violated the SCA and (2) was unduly burdensome. Id. at *1.
Magistrate Judge Faruqui began her analysis by setting forth the requirements under 28 U.S.C. § 1782, which provides that “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Id. at *4. Consideration of a § 1782 application requires a two-step inquiry: “A court must first consider whether it has the authority to grant the request and, second, whether it should exercise its discretion to do so.” Magistrate Judge Faruqui noted that courts have broad discretion in deciding whether to grant or deny these applications if three statutory elements are met: (1) that the person resides or is found in the district, (2) that the discovery requested will be used in a proceeding before a foreign or international tribunal, and (3) that the request is made by an interested person.
Magistrate Judge Faruqui noted that in deciding whether to exercise its discretion, a court must evaluate four prudential guidelines: (1) whether the respondent is a participant in the international proceedings, (2) whether the tribunal is resistant to using this kind of discovery, (3) whether the application circumvents the tribunal’s proof-gathering restrictions, and (4) whether the requested discovery is unduly intrusive or burdensome. Id. (citing Intel Corp. v. Adv. Micro Devices, Inc., 542 U.S. 241, 255 (2004)). A court’s discretion to grant or deny a § 1782 application is “considerable” and “may appropriately take into account the specific facts of the application to determine which factor or factors to weigh most heavily.” Id. (cleaned up). “District courts must exercise their discretion under § 1782 in light of the twin aims of the statute, which have been described as providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.” Id. (cleaned up).
Magistrate Judge Faruqui next discussed the SCA, noting that civil subpoenas, including those issued pursuant to § 1782, are subject to the prohibitions of the SCA mandating that “a person or entity providing an electronic communication service [(ECS)] to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Id. (citing 18 U.S.C. § 2702). Classification of an ECS is “context sensitive: the key is the provider’s role with respect to a particular copy of a particular communication, rather than the provider’s status in the abstract.”
Magistrate Judge Faruqui next turned to The Gambia’s argument that Myanmar officials were not “users” for purposes of the SCA. Magistrate Judge Faruqui rejected this argument, finding that Facebook was an “ECS” providing “users” the ability to send or receive wire or electronic communications. Id. at *6. She noted that the definition of “user” included “any person or entity who — (A) uses an [ECS]; and (B) is duly authorized by the provider of such service to engage in such use.” Id. (citing § 2510(13)). Thus, the SCA defines “user” with the broadest possible language: “any person.” Id. (citing § 2510(13)). The Gambia argued that the fact that U.S. government agents were defined separately from “individuals” in the SCA meant that officials were not considered “individuals.” Magistrate Judge Faruqui, however, held that Myanmar officials were “individuals” and also that the fact that “user” included “entities” provided an independent basis to consider the Myanmar officials “individuals.” Id. at *6.
Despite finding that the Myanmar officials’ use of Facebook fell under the scope of the SCA, Magistrate Judge Faruqui rejected Facebook’s argument that the discovery requests implicated SCA’s prohibition on ECS providers divulging communications while in “electronic storage” by that service. She noted that the SCA prohibited an ECS provider from divulging communications “while in electronic storage by that” ECS, which can include “temporary” or “backup” storage. Id. (citing 18 U.S.C. § 2702). In addressing whether the deleted content was in “electronic storage,” Magistrate Judge Faruqui first held that content deleted from a platform but retained by the provider was not “backup storage” when the provider was acting in its content moderation responsibility. Id. at *7. Magistrate Judge Faruqui reasoned that the SCA covers providers acting as “mail/package delivery services” and not content moderation. Magistrate Judge Faruqui additionally found that the deleted content could not be considered backup storage as any “archive of deleted messages that Facebook continues to maintain constitutes the only available record of these communications.” Id. at *8 (internal quotations omitted).
Magistrate Judge Faruqui further rejected Facebook’s attempt to analogize its deleted content to “delivered, undeleted content” and therefore in backup storage, finding Facebook’s reliance on two Fourth and Ninth Circuit cases misplaced. Magistrate Judge Faruqui distinguished these cases by reasoning that “backup storage” could not encompass content deleted from the platform and that copies of the content remaining on Facebook’s storage could not be construed as “backup storage” where Facebook itself caused the destruction of the original copies. Id. at *9. Magistrate Judge Faruqui also found that unlike in the Fourth Circuit case, the present circumstances did not implicate the policy concerns found in the legislative history of the SCA. She found that even under the Fourth Circuit case, “the purpose of backup storage must be to backup the original.”
Magistrate Judge Faruqui then addressed Facebook’s policy arguments regarding the privacy implications for providers, in particular that deactivation of a user’s account would remove it from the protections of the SCA. Id. at *10. Magistrate Judge Faruqui reasoned that Congress wrote the law such that once content was deleted from the platform, it was no longer protected by the SCA. Further, ample content urging the murder of the Rohingya remained on social media, so the privacy implications applied only to the limited volume of content that was deleted from the platform. Ultimately, she found that the privacy implications were “minimal given the category of requested content.” Id. at *10.
Magistrate Judge Faruqui then found that exceptions to SCA protection applied to the documents requested by The Gambia, noting that courts were permitted to compel production of communications excepted from SCA protections, including “with the lawful consent of the originator.” Id. at *11. She found the “consent exception” largely applicable because “much of the content The Gambia seeks was posted publicly before Facebook removed it.” The SCA was designed to protect private posts only, and the “critical inquiry is whether Facebook users took steps to limit access to the information in their posts.” Id. (internal quotations omitted). Magistrate Judge Faruqui stated that whether the consent exception is triggered is a “fact-intensive inquiry as to whether the posts had been configured by the user as being sufficiently restricted that they are not readily available to the general public” and that the court looks to the user’s “intent as to the public versus private nature of the post.” Id. at 12 (internal quotations omitted). Magistrate Judge Faruqui reasoned that it was undisputed that the content in question included inauthentic accounts and pages created with the intent of spreading hate speech, fake news, and misinformation for political gain and the accounts reached an audience of nearly 12 million followers. Magistrate Judge Faruqui found that ordering discovery was “particularly appropriate here because much of the requested content would have been publicly available to The Gambia had Facebook not deleted it.”
Having completed her analysis under the SCA, Magistrate Judge Faruqui then conducted an analysis of the burden and scope of the discovery requests. In particular, she focused on the fourth factor under the prudential guidelines from Intel: whether the scope of the requested discovery was unduly intrusive or burdensome in light of the relevance of the requested discovery to the foreign proceeding.
Magistrate Judge Faruqui held that The Gambia’s discovery requests sought “a discrete and known universe of records” and raised “at most the normal burdens of discovery — including for Section 1782 requests.” Id. at *14. Magistrate Judge Faruqui disagreed with Facebook’s contention that the discovery requests offered “no meaningful metric for identifying accounts and [were] overbroad,” finding that The Gambia focused its request only on the most relevant documents to the International Court of Justice case related to hate speech and incitement to violence by identifying specific individuals, entities, and pages. Id. at *13. Further, The Gambia was not asking Facebook to conduct any additional searches. While Facebook argued that it was unduly burdensome to review documents for specific content, Magistrate Judge Faruqui was unconvinced, noting that Facebook’s deplatforming process did not include a forensic review of account and page data, and Facebook had publicly touted its Myanmar language content-review capabilities.
Magistrate Judge Faruqui also rejected Facebook’s attempt to limit The Gambia’s request to a 2016 date range instead of 2012 as initially requested, finding that this case raised normal burdens of discovery, which Facebook could mitigate through the use of technology-assisted review. Magistrate Judge Faruqui determined that the 2012 data was highly probative of the instigation of the genocide and that Facebook had not demonstrated how the additional four years of data would unduly expand the document production. Additionally, there was no evidence the request seeking data from 2012 was made in bad faith, for purposes of harassment, or as part of a fishing expedition. To the contrary, the records were highly relevant to the underlying proceeding, which balanced out “any incremental burden on Facebook.”
Magistrate Judge Faruqui then held that courts need not consider whether other paths to collecting records exist so long as the requesting party meets the requirements of § 1782. Magistrate Judge Faruqui noted that the alternatives suggested by Facebook largely involved voluntary compliance as opposed to the compulsory production required by § 1782. Further, while Facebook requested The Gambia to obtain discovery through the U.N. Independent Investigative Mechanism for Myanmar (IIMM), with which it was already actively involved, it had provided only limited public postings to the IIMM based on its interpretation of the consent exception. Magistrate Judge Faruqui therefore determined that The Gambia had no reason to believe that the materials Facebook was providing to the IIMM would be sufficient to satisfy its discovery requests.
Finally, Magistrate Judge Faruqui turned to The Gambia’s requests for records relating to Facebook’s internal investigation of its role in the Rohingya genocide as well as its request for a 30(b)(6) deposition. Magistrate Judge Faruqui found that while normal prohibitions on privileged materials apply, Facebook had to produce nonprivileged documentation relating to the internal investigation, finding that these documents were likely to be highly important to the litigation. Magistrate Judge Faruqui then denied The Gambia’s request for a 30(b)(6) deposition of Facebook, finding it “unduly burdensome and adding little in the way of concrete evidence given the Court’s order for document production.” Id. at *16.
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