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(Reuters) - Confronted with an angry judge who has already mused about imposing crippling penalties for alleged discovery abuses, Facebook Inc and its lawyers at Gibson, Dunn & Crutcher might have opted for conciliation and contrition in the sanctions opposition brief they filed on Monday night.
They chose a different tone.
The brief is mostly defiant, arguing that Facebook and Gibson Dunn have done nothing to warrant sanctions – and that the real villains of the fight being waged before U.S. District Judge Vince Chhabria of San Francisco are the plaintiffs lawyers who are suing Facebook (now Meta Platforms Inc) for privacy violations and seeking about $855,000 in sanctions in a motion filed last month.
“The record shows that Facebook has complied with all orders and participated in good faith in dispute-resolution processes that were agreed upon by the parties and ordered by this court,” Facebook argued in the new brief, which blames plaintiffs for asserting “unreasonable and incessant” demands for Facebook documents. “Plaintiffs’ narrative is incomplete and untrue. [Their] request for sanctions on this record is an invitation to error, and this court should reject it in its entirety,” the brief said.
Only in the last few pages of the 56-page filing do Facebook and Gibson Dunn acknowledge that the discovery process has “not met the court’s expectations.” The law firm said it had been “mortified” by Chhabria’s criticism, first at a hearing in February in which the judge invited lead plaintiffs counsel from Keller Rohrback and Bleichmar Fonti & Auld to file a motion for sanctions, and then again in March, when Chhabria floated the prospect of entering judgment against Facebook as a sanction for discovery delays.
Gibson Dunn asked the judge not to punish its client for the law firm’s “zealous” advocacy, urging Chhabria to hold off on any sanctions ruling until discovery in the case – which is now proceeding at a faster pace – is completed. “Although Gibson Dunn may not have acted perfectly, and cannot promise perfection, if given the chance, Gibson Dunn would welcome the opportunity to demonstrate to the court’s satisfaction that any concerns the court might have had are being addressed,” the brief said.
But mostly, Facebook and its lawyers reiterated their long-running argument that discovery delays in the prospective class action, which arose from revelations that Facebook shared user data with the political consultant Cambridge Analytica and others, are not because Facebook has improperly resisted production but because plaintiffs are fishing for a viable theory.
The new brief claims that plaintiffs lawyers have so far presented Chhabria with a “false narrative” that belies Gibson Dunn’s good-faith efforts to litigate legitimate disputes over the scope of information plaintiffs are entitled to see.
Discovery has been so contentious that Chhabria approved an elaborate process – involving a federal magistrate judge, two discovery mediators and a court-appointed special master – to resolve fights over production. It is telling, according to Facebook and Gibson Dunn, that none of the neutral adjudicators enveloped in the discovery wars has called for sanctions against them. To the contrary, the brief said, the special master and the magistrate judge have pushed back when plaintiffs complained about Facebook and its lawyers. And even the plaintiffs, Gibson Dunn and Facebook said, did not seek sanctions until Chhabria suggested in February that they file a motion.
Gibson Dunn argued in the new brief that plaintiffs lawyers have also misrepresented their success in discovery fights over documents from Facebook’s internal investigation of data-sharing with app developers and over data Facebook harvested on the eight named plaintiffs in the case. Plaintiffs lawyers told Chhabria in their sanctions motion last month that they have prevailed in nearly all of the disputes that have resulted in orders from the special master. Facebook and Gibson Dunn said that’s not true: Plaintiffs, they argued, had selectively omitted motions Facebook won, had wrongly cast other rulings as victories and had unfairly portrayed Facebook as refusing to produce documents in response to orders that did not actually require production.
“Plaintiffs’ charge of a false narrative is also deeply hypocritical, given that they support their request for sanctions with false and misleading accounts of the record in this case,” the Facebook brief said. “Indeed, the false narrative conjured up by plaintiffs permeates every aspect of their motion.”
Plaintiffs’ counsel Derek Loeser of Keller Rohrback and Lesley Weaver of Bleichmar Fonti declined to provide a statement responding to the brief opposing sanctions. Gibson Dunn also declined to provide a statement.
Gibson Dunn partner Orin Snyder, who was called out by name in plaintiffs’ sanctions motion, said in a declaration that he has litigated in good faith throughout the case, even though Facebook and plaintiffs have had “vastly different views” about what the company was required to turn over.
“We never took a position on a single discovery issue for the purpose of impeding discovery,” Snyder said. “The concept of stonewalling discovery is as foreign to me and my team as it is abhorrent to the court.”
Facebook and Gibson Dunn said in their brief that punishing Snyder would chill vigorous – but permissible – advocacy. It takes “more than a little chutzpah,” the brief said, for plaintiffs to accuse Snyder of peddling a false narrative about discovery in the case when, according to Facebook, their own sanctions motion is peppered with “untruths, half-truths and outright misrepresentations.”
Clearly, Gibson Dunn and Facebook made a strategic decision that their alternative depiction of the record in this case justified the feisty tone of the sanctions opposition brief (except for the last few pages). The $855,000 question is whether that indignation will play well with Chhabria, who has already told Facebook and Gibson Dunn that it’s going to take considerable convincing to change his preliminary view that they engaged in sanctionable conduct.
Keller Rohrback and Bleichmar Fonti have two weeks to submit a reply to the Gibson Dunn brief. I suspect they will have a lot to say about Facebook's contention that if anyone is acting in bad faith, it’s them.
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