Facebook Must Produce — Not Merely “Provide Access” — to Electronically Stored Information (ESI) in Native Formats

United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce electronically storedinformation (“ESI”), not merely “provide access” thereto on a commercial website that allowed it to restrict class action plaintiffs from reviewing those materials properly. The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation (Apr. 6, 2011) analyzed three important issues: (1) the importance of ESI Protocols, (2) production of ESI in native formats, and (3) production of documents versus “access” to them.

Facts

Three named plaintiffs brought a class action against Facebook for breach of contract and violation of California’s Unfair Competition Law. Each of the plaintiffs advertised on Facebook and alleged that Facebook misrepresented the quality of its click filters, which are meant to screen out certain clicks (“invalid clicks”) that do not meet specified requirements designed so that advertisers are not billed for them. When the plaintiffs were charged, they sued.

Discovery disputes ensued–surprise surprise–and plaintiffs filed their Motion To Compel in relation to three of these disputes.

1.Plaintiffs allege that Facebook refused to agree to an ESI Protocol to set forth the manner and form of electronic production, including an agreement on search words or phrases, custodians, time frames and/or other terms that the parties would employ in producing ESI.

2.Facebook uploaded its discovery responses to a commercial website in a manner that seriously limited the plaintiffs’ ability to review them.

3.The documents to which Facebook provided access, as well as others that were actually produced, were not in their native format, and thus were unsearchable and unusable.

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Source: blogs.forbes.com
By: Ben Kerschberg