Facebook Must Produce Electronically Stored Information (ESI) – Not Merely "Provide Access" to ESI

    August 18, 2011

    United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce electronically stored information (“ESI”), not merely “provide access” thereto on a commercial website that allowed it to restrict class action plaintiffs from reviewing those materials properly, Forbes reports.

    The court’s order granting the plaintiff’s Motion To Compel Production occurred in In re Facebook PPC Advertising Litigation (Apr. 6, 2011), where advertisers on Facebook brought a class action for breach of contract and violation of California’s Unfair Competition Law alleging that Facebook misrepresented the quality of its click filters, which are meant to screen out certain clicks that do not meet specified requirements designed so that advertisers are not billed for them.

    When Facebook refused to agree to an ESI Protocol to set forth the manner and form of electronic production, and later uploaded its discovery responses in non-native format to a commercial website in a manner that seriously limited the plaintiffs’ ability to review them, plaintiffs moved to compel the production be produced directly to them in native format.

    Facebook opposed an ESI Protocol arguing it would impose “rigid, up-front requirements” by “forcing the parties to anticipate and address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process.” The Court overruled Facebook’s objection as “speculative,” holding that “[t]he argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all.”

    The Court also overruled Facebook’s objection to producing documents in native format to plaintiffs – as opposed to making such documents available on an online website – citing a two-tiered stipulated protective order entered into between the parties.

    The Court’s treatment of Facebook’s objections emphasizes the importance of counsel’s Federal Rule of Civil Procedure Rule 26(f)’s “meet and confer” mandate to set forth reasonable procedures to preserve and produce relevant ESI.

    Hat tip to Canaan Himmelbaum, Esq. from Peak Discovery who was quoted by Forbes in the article referenced above.


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