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Meet and Confer: Facebook Must Go

Created on May 19, 2011

Vice President, E-Discovery

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

E-Discovery rules apply to everyone, but apparently social media giant, Facebook did not receive the message. In a recent ruling, the defendant, Facebook, was instructed by the United States District Court (N.D. California) to participate in specific e-discovery procedures including participation in meet and confer conferences. Plaintiffs, RootZoo, Inc., Fox Test Prep, Steven Price, filed motions to compel production from Facebook. In these motions there were two major e-discovery disputes: (1) Facebook refusing to agree to an ESI Protocol, and (2) Facebook's methods of document production. The Court ruled against Facebook on both counts.

1. ESI Protocol

Facebook refused to participate in meet and confer conferences to establish an ESI protocol based on its “rigid, up-front requirements." They justified their concern, by arguing that “forcing parties to anticipateand address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process." The odd part of Facebook's argument is that an ESI Protocol's purpose, to facilitate collaboration in the e-discovery process, is the opposite of Facebook's justification. Citing the Sedona Conference and Rule 26(f) (requirement for parties to meet and confer concerning e-discovery issues), the Court ruled against Facebook. The ruling requires Facebook to participate in meet and confer conferences, where an ESI Protocol must be agreed upon including specific discovery search terms. The court stated that “an ESI Protocol is needed" based on the disagreement between the parties and “the clear thrust of the discovery-related rules, case law, and commentary suggests that 'communication among counsel is crucial to a successful electronic discovery processes."

2. Methods of Production

Plaintiffs also filed a motion to compel Facebook to re-produce documents in their native format. This motion stems from Facebook producing documents in a non-searchable (.pdf) format and uploading them to a website, Watchdox.com, which restricted Plaintiff's ability to view, copy, and search particular documents. The court noted that “each of these steps make the discovery process less efficient without providing any real benefit." This prompted the court to cease Facebook's use of Watchdox.com and required re-production of all documents in a searchable format.

For the legal world, these rulings hammer down the point that e-discovery rules must be followed. Within the e-discovery process, judges no longer will allow any sort of gamesmanship that eludes cooperation and communication. Parties will be forced to meet and confer for negotiation of an agreement “without the court having to micro-manage e-discovery." In these conferences parties should be prepared and backed up with comprehensive reports to argue for preservation parameters that best fit their own needs. Like anything within the legal realm, change is slow moving, but major corporate parties like Facebook better realize that this change is real and e-discovery rules will be enforced.

Mike Hamilton, J.D. is the E-Discovery Market Analyst at Exterro, Inc. Hamilton works in a product management and marketing role to ensure Exterro's Fusion e-discovery applications closely reflect the needs of legal teams. Within the complex e-discovery world, Hamilton's knowledge, legal acumen and experience give him a valuable perspective on bridging the gap between IT and legal teams.