Facebook Can Claim Work Product in App Developer Investigation

March 24, 2021, 7:21 PM

Materials generated by counsel as part of Facebook’s highly publicized “App Developer Investigation” are covered by the work product doctrine, and the social media platform is entitled to withhold information that would reveal counsel’s undisclosed strategic decision-making, Massachusetts’ highest court ruled Wednesday.

The Massachusetts Attorney General sought the materials as part of its own investigation focused on whether the company “misrepresented the extent to which it protected or misused user data,” the court said.

The Supreme Judicial Court of Massachusetts reversed a lower court ruling that would have required Facebook to give the state attorney general’s office documents “sufficient to identify” thousands of apps at the center of its internal investigation, along with additional factual information for some of the apps, including, among other things, the identity of the app developer and the “basis and initial source(s) of reports, allegations or concerns of data misuse of user information obtained or accessed through the app.”

Although Facebook will still be required to produce documents reflecting “fact” work product, it will now be able to hold back at least those materials and information constituting “opinion” work product.

The court said it was unable to perform the review itself based on the record before it and remanded the matter to the superior court, with instructions to determine “whether some of the factual information about the apps that Facebook is required to produce will reveal any meaningful previously undisclosed attorney thoughts or strategies.” If so, Facebook will be permitted to withhold them.

Although opinion work product is rarely discoverable, a party may be compelled to produce fact work product upon a showing of substantial need and undue hardship, which the court said the Massachusetts Attorney General had demonstrated.

The lower court had determined that the work product doctrine didn’t apply at all, on the basis that Facebook’s app enforcement and public statements about the investigation showed that it wasn’t conducted in anticipation of litigation. But the high court disagreed, finding the investigation “meaningfully distinct from Facebook’s ongoing enforcement program.”

The investigation “is staffed by outside counsel and outside forensic consultants,” focuses “on past violations, not ongoing operations,” and “serves a very different purpose,” namely “defending Facebook against the vast litigation it is facing.”

The court rejected the attorney general’s argument that the purpose of the investigation “was to improve the Platform and remedy the loss of user trust,” rather than to prepare for impending lawsuits.

That the investigation also serves Facebook’s business purposes doesn’t mean the work product doctrine doesn’t apply, the court said.

Facebook is represented by Gibson, Dunn & Crutcher LLP, which conducted the App Developer Investigation.

The case is Att’y Gen. v. Facebook Inc., Mass., No. SJC-12496, 3/24/21.

To contact the reporter on this story: Holly Barker in Washington at hbarker@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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