"In 2016, Facebook produced one million pages of confidential documents" pursuant to a protective order entered in The San Mateo County Superior Court in California. Facebook's production included 46 documents later at issue in a Multidistrict Litigation centered in California in 2021. "These documents were later disclosed in violation" of the protective order entered by the California State Court. In re Facebook, Inc. Consumer Privacy User Profile Litig., No. 18-md-02843-VC (JSC), 2021 WL 3209711, at *1 (N.D. Cal. July 29, 2021) (Corley, USMJ).
The Facebook documents were disclosed by lawyers and parties who asserted that the documents were relevant to the Cambridge Analytica investigation. They communicated with various media outlets about the documents. The media outlets included The Washington Post newspaper, The Guardian newspaper, and NBC News. NBC "published a report that released almost 7,000 pages of the disclosed Facebook documents, including the 46 documents at issue here." In re Facebook, 2021 WL 3209711, at *2.
The MDL (federal) court approved a Stipulated Protective Order in "August 2018," and sometime in 2019 "Plaintiffs obtained public versions of the at-issue 46 documents from the NBC News website." In re Facebook, 2021 WL 3209711, at *3. On March 15, 2019, the San Mateo County Superior Court wrote -- even before this happened, finding that the Plaintiffs were responsible for violating its protective order -- that the Plaintiff's conduct "'compromises the entire integrity'" not only of Stipulated Protective Orders, but all of "'American jurisprudence.'" In re Facebook, 2021 WL 3209711, at *4.
There is no indication how a California State Court and an MDL centered in a federal court in California could have simultaneously had jurisdiction, but they apparently did. Without getting overly technical, it is fair to say that both courts were pissed.
In any case, the Magistrate Judge in the MDL wrote several things that, respectfully, do not quite add up. First, the Magistrate Judge wrote that she issued "the operative stipulated Protective Order" in August 2018 in the MDL In re Facebook, 2021 WL 3209711, at *3. A court never issues a Stipulated Protective Order; the parties stipulate to it. The court approves it, modifies it, or rejects it, but no court anywhere ever "issues" it.
Second, the Magistrate Judge loosely described the default presumption of public access to court records as "a general rule," and said that a finding of good cause is "generally" required before a court can enter a protective order but that "a court need not do so if the parties stipulate to entry of a protective order," citing to a Ninth Circuit decision in 2002 which says no such thing.
There is no such "general rule," it is a default presumption, and good cause is always required by Federal Rule of Civil Procedure 26(c), as well as by the Ninth Circuit Court of Appeals.
Third and finally, to her credit the Magistrate Judge recognized that the materials at issue, which irrespective of how they got there, were and are already in the public domain and so they are just not covered by the Stipulated Protective Order which she approved. She accordingly held that the documents in question in the MDL were in the public domain at the time that Microsoft designated them as "Confidential--Attorney's Eyes Only" in the MDL, and "under the [MDL, Stipulated] Protective Order's plain terms, the documents are not covered." In re Facebook, 2021 WL 3209711, at *4.
Unfortunately, the Magistrate Judge did not end with this conclusion. The Magistrate Judge granted Facebook's motion to modify the SPO -- which in its original iteration did not touch the materials at issue -- so that the order would now reach the material in the public domain anyway:
Accordingly, the Court grants Facebook’s request to modify paragraph 3(a) of the Protective Order as follows (additional language in italics):
However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order or another court’s protective order, including becoming part of the public record through trial or otherwise.
In re Facebook, 2021 WL 3209711, at *4 (italics by the Magistrate Judge, and, apparently, by Facebook).
Who says you can't get a do-over in court?
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