An Epilog:  4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

I have posted five blogs – – with links below – – on In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), subsequent opinion, 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).

I did not, and could not, touch on every issue addressed by the court.

• 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case
• 8 Lessons Learned – Part I – The “Humpty Dumpty” Clause of ESI Protocol
• 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol
• 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol
• 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices

IN RE SOCIAL MEDIA IS A VERY COMPLEX CASE

The case may be a unicorn – a rara avis.¹  “Plaintiffs’ Master Amended Complaint… is nearly 300 pages long asserting eighteen claims brought under various state laws on behalf of hundreds of plaintiffs.” In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2023 WL 7524912, at *1 (N.D. Cal. Nov. 14, 2023), motion to certify appeal denied, 2024 WL 1205486 (N.D. Cal. Feb. 2, 2024). “Notably, this multi-district litigation (‘MDL’) encompasses, in addition to individual suits, over 140 actions brought on behalf of school districts and actions filed jointly by over thirty state Attorneys General.”  Id.  at *1.

As of May 3, 2024, there were 805 docket entries.  “This litigation consists of 28 actions pending in 17 districts…. Since the filing of the motion, the Panel has been notified of 56 related actions in 24 districts.” In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 637 F. Supp. 3d 1377 (U.S. Jud. Pan. Mult. Lit. 2022). “[T]his MDL consolidates hundreds of actions brought on behalf of children and adolescents….”  In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1786290, at *1 (N.D. Cal. Apr. 15, 2024).

The issues are significant. Plaintiffs allege that “defendants target children as a core market and designed their platforms to appeal to and addict them.”  In re Soc. Media Adolescent Addiction, 2023 WL 7524912, at *2.  For example:

All parties agree that the claims involving Meta share questions of fact, including whether Meta’s platforms (Facebook and Instagram) encourage addictive behavior, fail to verify users’ ages, encourage adolescents to bypass parental controls, and inadequately safeguard against harmful content and/or intentionally amplify harmful and exploitive content.

In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 637 F. Supp. 3d 1377 st *1378 (U.S. Jud. Pan. Mult. Lit. 2022). 

Defendants include or included Mr. Mark Zuckerberg,² Meta, TikTok, YouTube, Instagram, LLC, and Google LLC. “On October 6, 2022, the Panel transferred 20 civil action(s) to the United States District Court for the Northern District of California for coordinated or consolidated pretrial proceedings….” In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2022 WL 13853848, at *1 (U.S. Jud. Pan. Mult. Lit. Oct. 11, 2022). 

Discovery is so complex that the parties submitted a joint statement of disputes over a deposition protocol.  In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1205485, at *1 (N.D. Cal. Mar. 20, 2024).  That decision contained interesting orders such as:

As an incentive for the Parties to disclose witnesses each side intends to depose and thus start the discussion as to scheduling depositions as early as possible: … If a Party first identifies a witness for deposition on or before April 30, 2024, that identifying Party shall be permitted one (1) hour of additional deposition time for that identified witness, where that additional one hour (if taken) shall not be counted against that identifying Party’s cumulative time limits allocated for depositions. [emphasis added].

In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1205485, at *1 (N.D. Cal. Mar. 20, 2024).

The complexity and sophistication of the issues – and, presumably, the sophistication of counsel and their technical support staff – are what makes this case interesting from an e-discovery perspective.

SOME QUESTIONS

I previously wrote that the In Re: Social Media Adolescent Addiction decision is well-thought out and important.  And, one of many key takeaways is: “An ESI protocol must be specific or it doesn’t mean anything.” 

However, there are parts of the decision that raise questions.

Given the background of this litigation, is it (1) understandable that significant disputes could not be resolved; or, (2) surprising that “the Court expressed its disappointment as to the excessively large number of disputes regarding ESI issues that remained, as well as the lack of specificity in the Parties’ briefing…?”  2024 WL 1786293 at *1.

Does the following make “good law?”  “Plaintiffs requested this language and thus Plaintiffs cannot be heard to complain later about receiving a large volume of system or junk files (and should not be expected to argue for extensions of the case or discovery schedule on this basis). By arguing for this language, Plaintiffs knowingly undertook the risk that they may receive a large volume of system or junk files as a result.” [emphasis added].

THE COURT’S EXPRESSION OF DISAPPOINTMENT

The In Re: Social Media Adolescent Addiction court expressed its disappointment about the excessively large number of disputes regarding ESI issues that remained after the parties conferred.  I certainly don’t have the breadth of knowledge that the court has about this case. 

However, it seems to me that there was considerable substance to many of the disputes, although perhaps not all of them.³

While an expression of disappointment is far from a sanction, they share some characteristics, especially when included in a written opinion of a court.  I have suggested that sanctions, the strongest criticisms of counsel, should be sparingly imposed because of their impact on attorneys’ careers and the possibility of error. 

Qualcomm Inc. v. Broadcom Corp.,⁴ became the poster child for sanctions that were not supported by the facts.  By the time the sanctions were lifted, however, the attorneys’ careers and personal lives had been devastated.  See Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”; M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 279-80. 

There are good reasons to approach sanctions decisions with great caution. They often arise in an unclear context.  While they may be necessary and appropriate, they also may not be, and then they negatively impact civility and unfairly destroy careers.  Qualcomm demonstrated that there is a substantial risk of error for which the impact could be irreparable.  Id.

With sanctions motions, civility also suffers.  Suddenly, civil litigators can strengthen or win their cases by asserting that opposing counsel failed to implement and monitor a litigation hold.  This becomes a civil analog to a “Brady motion” in criminal law.  See Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”; Berman, ESI in Maryland Courts at 278, What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”, and  M. Berman, “The Sedona Conference Cooperation Proclamation” ABA Technology for the Litigator.

I am not suggesting that the expression of disappointment in In Re: Social Media Adolescent Addiction is or may be as damaging as the Qualcomm $8.5 million sanction, which was accompanied by a referral to Bar Counsel and a suggestion of malpractice, and that was eventually reversed.  Nor do I know enough about the specifics of In Re: Social Media Adolescent Addiction to suggest that the expression of disappointment was misplaced on the facts and briefs presented.

I have, however, suggested that, when it comes to sanctions, the pendulum swung too far.  In December 2015, with the amendment of Fed.R.Civ.P. 37(e), the pendulum began to swing back.  That amendment is designed to dim the marquee lights of sanctions decisions and cabin the federal spoliation doctrine. See Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”.

Perfection is not, and never has been, the standard of litigation. See What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”

Cooperation and transparency are important considerations. See Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.  President Abraham Lincoln wrote in 1850: “Persuade your neighbors to compromise whenever you can.Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time….  As a peacemaker the lawyer has a superior opportunity of being a good man [or woman].”

But, “cooperation” is a term of art:

What is cooperation? As properly defined, cooperation requires focused discovery requests, specific discovery objections, negotiation, discussion, flexibility, transparency, and often an iterative process. [Cooperation] does not require that a litigant forego any meritorious discovery or other position.  Cooperation is not capitulation. It includes consideration of proportionality.

Ethical Contours of Discovery Sanctions and the Duty to Cooperate (emphasis added; cleaned up), quoting M. Berman and The Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 338-42.

In a later decision, the In re Soc. Media Adolescent Addiction court wrote: “The Court applauds the Parties in their efforts to meet and confer and to narrow the disputes relating to the Deposition Protocol, and the Court encourages the Parties to continue to approach discovery in a collaborative and rational manner.”  In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1205485, at *4 (N.D. Cal. Mar. 20, 2024).

PLAINTIFFS’ OVERBROAD REQUEST

In connection with discovery of “system files,” the court explained the parties’ respective positions and wrote:

[T]he net effect of Plaintiffs’ proposed phrase is either to undo the Producing Party’s burden of reviewing the listed types of system files (which generally do not contain useful substantive information) or to put the Producing Party in the position of producing system files based on a good faith reason to believe those system files meet the listed conditions (i.e. the system files are responsive, contain responsive data, or are used to interface with users, interacts with or access individual or aggregated user data). Defendants noted at the [court conference] that if this language is included they would likely err on the side of production in order to avoid accusations that they wrongfully withheld system files.

In re Soc. Media Adolescent Addiction, 2024 WL 1786293, at *15 (emphasis added).

The court then wrote that plaintiffs requested this language and thus Plaintiffs cannot be heard to complain later about receiving a large volume of system or junk files (and should not be expected to argue for extensions of the case or discovery schedule on this basis). By arguing for this language, Plaintiffs knowingly undertook the risk that they may receive a large volume of system or junk files as a result.  Id.  at 15.

One of the primary arguments against incorporating an “ESI Protocol” into a court order is that doing so may be the first step down the road to sanctions.  See The ESI Protocol: Your Word is Your Bond… Or, Is It?

While carelessness should not be encouraged, “parties may make early ESI decisions based on limited information….”  Therefore, “proportionality considerations may need to be re-balanced at later points in the litigation,” and, “discovery plans may be modified when new information is learned.”  Nichols v. Noom Inc., 2021 WL 948646, at *3 (S.D.N.Y. Mar. 11, 2021); accord In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832, at *5 (N.D. Cal. Apr. 23, 2024); ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue”

“While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.” I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011)(unpublished); Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II); Sanctions Denied, But Be Careful What You Agree To (Part I). 

In my opinion, courts should do what was done in I-Med Pharma, Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022),  and Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), and provide an escape hatch where warranted.

CONCLUSION

This is most certainly not the last chapter in In Re: Social Media Adolescent Addiction.  It is a thoroughly-litigated case and the decisions are well-thought out and important. 

Again, thanks to Phil Favro for mentioning this case.

Notes

¹ “Rara avis” is a rare or unique thing. What is another word for “rara avis”? (wordhippo.com)

² In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1786290, at *1 (N.D. Cal. Apr. 15, 2024).

³ For example, the court wrote that “Defendants did not propose any alternate language that would address Plaintiffs’ concerns or attempt to craft language that would balance both Parties’ concerns” on one issue.  A litigant’s failure to propose alternatives may, in many or most circumstances, be inconsistent with cooperation.  On the other hand, it may simply indicate an impasse.

⁴ 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated and remanded in part, 2008 WL 638108 (S.D. Cal. Aug. 18, 2008), reconsideration denied, 2008 WL 2705161 (S.D. Cal. Jul. 7, 2008), appeal dismissed, 327 F. App’x. 877, 2008 WL 1336937 (Fed. Cir. Aug. 18, 2008), on remand, 2010 WL 1336937 (S.D. Cal. Apr. 2, 2010).