Big Law Gets Spanked

As a related follow-up to my recent post on a judge sanctioning Trump and his attorney for almost $1 million, another judge (Obama appointee FWIW) has also levied a $1 million sanction on Facebook and their attorney, the powerhouse law firm Gibson Dunn.

Here's the link to the 53-page opinion. The core issue is a discovery dispute, something trivially common with civil litigation. Some people sued Facebook for privacy violations following the revelations that Facebook may have been less than honest about what user information they share with 3rd party app developers (related to the Cambridge Analytica scandal). The plaintiffs were legally entitled to discovery, which is the vehicle that allows them to ask Facebook to disclose records that may be used against them in litigation. As an example, consider something minor like a trip and fall case in a grocery store involving cantaloupe displays. Once they get past the initial stages by demonstrating they probably have a valid claim, the person suing the store can investigate the issue by demanding that the store turn over all relevant evidence, including emails, memos, text messages, calendar invites titled "we need to address the cantaloupe display problem" and so on. Unless the information is protected by some sort of legal privilege (e.g. the manager of the store emailing the company's attorney for legal advice) then the store is required to hand over the rope that may be used to hang them. Some of the stuff uncovered can be extremely damaging and for that reason alone you can imagine why there might be some reluctance on the part of the store. Too bad, so sad.

That's basically what happened in this case, spanning across more than three years: a fuckton of stonewalling from Gibson Dunn and Facebook employees who were deposed for questioning. For example, the plaintiffs found evidence that although Facebook claimed they closed an access loophole for information about users' friends, they actually kept the gates open (referred to as "whitelisting") for some 3rd party apps they considered especially valuable. This example from page 27 is illustrative of the stonewalling:

Several months earlier, the plaintiffs had deposed Chang. When asked whether she was “making a recommendation [in the email]…for how to deal with integrations that involve strategic value,” Chang responded, “I don’t remember specifically, so I don’t know how to answer that.” Dkt. No. 1103-24 at 106. She didn’t “remember enough to say” that the email was about the loss of access to read stream and friend data permissions. Dkt. No. 1103-24 at 107. Indeed, she could not recall what it meant to use “read stream and friend data” at all. Dkt. No. 1103-24 at 108. When asked if she could offer her “best understanding” of what her email meant, she said she couldn’t “speculate.” Dkt. No. 1103-24 at 108. When asked, “Tell me everything you can remember about your involvement in figuring out which partners should continue to have access to friends permissions,” Chang responded, “So, again, I don’t remember.” Dkt. No. 1103-24 at 119.

Chang’s testimony about her email is representative of her deposition more broadly: Although Facebook’s internal documents suggest that Chang was extensively involved in the whitelisting process, she remembered almost nothing about it. See, e.g., Dkt. No. 1103-24 at 170–71. At one point in the deposition, Chang testified that she could not remember what the term whitelisting meant at all. Dkt. No. 1103-24 at 220. She had no memory of the deprecation of friend permissions. Dkt. No. 1103-24 at 96. She did not remember that Facebook had ever allowed apps to access friends’ information. Dkt. No. 1103-24 at 70. Although she was being deposed in a case involving the Cambridge Analytica scandal and said she had met with Facebook’s lawyers for around nine hours to prepare, she claimed she did not know that the scandal was related to Facebook’s practice of sharing friends’ information. Dkt. No. 1103-24 at 17, 292–93.

Chang resisted other questions as well. When asked if the email was “the best evidence of what you were thinking at the time you wrote” it, Chang responded, “I don’t know.” Dkt. No. 1103-24 at 133. When asked if there was anything that could refresh her recollection, Chang responded, “I don’t know what I don’t know, so I can’t make that assumption that I would know.” Dkt. No. 1103-24 at 134. When asked if the email was a “good guide of what you were thinking about the topics discussed,” Chang said that would require her to “speculate.” Dkt. No. 1103-24 at 135. When asked again, Chang said she didn’t know what “good” meant. Dkt. No. 1103-24 at 136. At another point in the deposition, Chang said she didn’t know what the phrase “general understanding” meant. Dkt. No. 1103-24 at 76.

I recommend reading the full opinion¹ as it has a lot more juicy examples. Facebook already agreed to settle this case for $725 million, so a $1 million penalty is basically a rounding error at this point. Still, it is very unusual for a judge not just to openly lambast but also personally sanction a big law firm like Gibson Dunn. There's an impression among big law firms that they're too important to scold and part of what justifies their eye-watering bill is that you're summoning an esper to the lawfight that will browbeat and flatten your opponent through sheer presence. It's difficult to walk away from the judge's opinion in this case with any ideation that either Facebook or their lawyers were acting in good faith, so the penalties seem more than appropriate here. Sanctions against attorneys are extremely rare, generally they only happen if you fuck with a client's money, so I'm hopeful this is an omen towards more frequent attorney spankings. I have nothing to worry about myself because it's not like leopards would eat my face.

1. I know I'm a lawyer but I personally find that the vast majority of legal opinions I encounter are written with the aim of making them readable and accessible by the general public. Am I off-base?