United States District Court, N.D. California
DISCOVERY ORDER Re: Dkt. No. 95
MARIA-ELENA JAMES, Magistrate Judge.
Pending before the Court is the parties' Joint Discovery Letter, in which they dispute whether Plaintiffs may compel Defendant Facebook Inc. to produce documents that its Irish affiliate previously submitted to an Irish regulatory agency. Dkt. No. 95. Having considered the parties' positions, relevant legal authority, and the record in this case, the Court DENIES WITHOUT PREJUDICE Plaintiffs' Motion to Compel for the reasons set forth below.
This putative privacy class action challenges Facebook's alleged "scanning" of messages sent on its social media website, which Plaintiffs contend violates the Federal Wiretap Act and California Penal Code section 631. Jt. Ltr. at 1. Plaintiffs allege that, without consent, Facebook scans the content of putative class members' messages for use in connection with its "social plugin" functionality. Id. Specifically, certain websites display a Facebook "like" counter, which enables visitors to see how many users have clicked a button indicating that they "like" the page or have shared the page on Facebook. Id. Plaintiffs allege that Facebook scans the content of putative class members' messages, and if a link to a web page is in a message, Facebook treats it as a "like" of the page, thereby increasing the page's "like" count by one. Id. Plaintiffs allege that Facebook uses this "like" data to compile user profiles, which it then uses to deliver targeted advertising to users. Id. Plaintiffs seek to represent a class of "all natural person Facebook users located within the United States who have sent or received private messages that included URLs in their content, from within two years before the filing of this action up through and including the date when Facebook ceased its practice." Consolidated Compl. ¶ 59, Dkt. No. 25.
The parties are now at an impasse concerning Plaintiffs' Request for Production No. 30 (the "Request"), which seeks documents and electronically stored information ("ESI") related to Facebook's foreign affiliate, Facebook Ireland Limited ("Facebook Ireland"), conducted by the Office of the Irish Data Protection Commissioner ("IDPC"). Jt. Ltr. at 1; see also id., Ex. A (Request for Production) & Ex. B (Response to Request for Production). Specifically, the Request states: "All Documents and ESI related to all audits of Facebook conducted by the Office of the Irish Data Protection Commissioner." Id., Ex. A at 14. The parties have met and conferred, and Plaintiffs have now agreed to limit their Request to the context of private messages. Id.
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. A court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C).
"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, " including by (1) prohibiting disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3) preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed.R.Civ.P. 26(c)(1). "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
In opposing Plaintiffs' Request, Facebook indicates that the Court should weigh international comity concerns and the potential burden to Facebook if it is compelled to respond. Jt. Ltr. at 4-5. First, it asserts that the IDPC has recently reiterated the importance of confidentiality in its communications with the organizations it regulates. See id. & n.7. Specifically, the IDPC wrote in a recent report: "[I]n common with many regulators in the world, it is not possible to publicly disclose details of our engagement with these organisations [including Facebook Ireland], as this could negatively impact on the frankness of those conversations and therefore make effective regulation more difficult." Annual Report of the Data Protection Commissioner of Ireland 12 (2014), https://www.dataprotection.ie/docimages/documents/Annual%20Report%202014.pdf. Second, Facebook notes that the IDPC may not disclose confidential information received from the organizations it regulates, and consequently Facebook argues that it is likely under an equitable obligation to maintain the confidentiality of its communications with the IDPC as well. Jt. Ltr. at 5 & n.7. Facebook asserts that, if the Court compels production of these documents, it will need to seek permission from the IDPC before producing the requested materials, and if the IDPC denies the request, Facebook will need to bring a motion for a protective order in this Court on the ground that the production may violate Irish Law. Id. at 5. The IDPC has not at this time filed any expression of its views on the production of these documents.
"Rule 26 grants the court discretion to limit discovery on several grounds, including international comity." See In re Rubber Chems. Antitrust Litig., 486 F.Supp.2d 1078, 1081 (N.D. Cal. 2007) (citing Aerospatiale, 482 U.S. at 544). Given the concerns raised by Facebook above, the Court finds it appropriate to weigh Plaintiffs' Request in view of the five factors "relevant to any comity analysis":
(1) the importance to the... litigation of the documents or other ...