Ninth Circuit asked to block discovery order in nationwide social media addiction case

(CN) — The California attorney general’s office asked a Ninth Circuit Court of Appeals panel on Tuesday to overturn a discovery order in sprawling case accusing social media companies of designing their to be addictive to children and teens.

Attorneys general from 33 states object to a magistrate judge’s September 2024 order to gather a mass of documents from more than 250 state agencies, including governor’s offices, and hand them over to Meta, which had requested them.

California Supervising Deputy Attorney General Bernard Eskandari called the lower court’s decision “egregiously wrong.”

“It effectively subjects every state officer to party discovery in federal court. The consequences of this are immense," he said.

The attorneys general argued that to give such an order would give one elected official the power over other elected officials, violating one of the core principles of federalism. The attorneys general also said that Meta, the owner of Facebook, Instagram and WhatsApp, could seek the documents through subpoenas to the individual state agencies — which Meta did do, at least in part, in July 2024.

The magistrate judge had found that state attorneys general do have legal control over documents belonging to independent state agencies, but Eskandari argued that attorneys general are lawyers, just like any other, whose clients are the people of the state, as well as officials and agencies.

He compared the California attorney general’s office to the white shoe law firm representing Meta, Covington & Burling.

“If I said that we’re entitled to party discovery of documents from Covington’s other clients, I would rightfully be laughed out of this court,” said Eskandari.

In other words: lawyers can advise their clients to turn over documents and they can ask nicely but lawyers cannot break into their clients’ offices and seize documents. Attorneys general, Eskandari said, were bound by the same rules.

“What if you’re representing a state agency in the discovery dispute?” asked U.S. Circuit Judge Lucy Koh, a Joe Biden appointee.

“I still do not think we have any authority to run into [the governor’s lawyer’s] office and take documents from it,” Eskandari said. “I can guide him. I’m his agent. That doesn’t provide me with control.”

Brian Goldman, an attorney for California Governor Gavin Newsom — who isn’t party to the case but was allowed to address the court — said the order forcing the governor’s office to turn over documents ended up costing the state $2 million.

“We were not given the opportunity to be heard,” by the federal court, Goldman said. “It is unfair to compel us to seek these records.”

Mark Mosier, a partner at Covington & Burling representing Meta, argued that attorneys general are fundamentally different from other lawyers.

“Because the attorney general is empowered to litigate on their behalf, they necessarily must be able to access documents,” Mosier said.

“They’re not obligated to use the attorney general,” U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee said, implying that the agencies can choose to be represented by outside counsel.

Mosier countered that in some states, they are obligated. In those states, it is the attorney general’s decision if outside counsel gets brought in or not — and those were the states where the discovery order applies.

“When the authority is in the attorney general to decide for himself whether or not to represent the agency, he must have control of the documents,” Mosier said.

Mosier later acknowledged that Meta has already obtained the documents it was seeking. But decision could have a big impact on when state agencies must turn over documents as part of the discovery process, particularly in actions brought by attorneys general.

The panel was rounded out by U.S. Circuit Judge Bridget Bade, a Donald Trump appointee.

The arguments were just a minor skirmish in a sprawling federal lawsuit brought by 33 states accusing Facebook, Instagram, YouTube, TikTok and Snapchat of designing their products to be as addictive as possible for teenagers that ensnare “to their mental, emotional, and physical detriment.”

The states also accuse the companies of downplaying the harm they cause amongst minors, and hiding evidence of it. The states’ claims were folded into the multi district litigation, which includes more than 1,800 cases filed by cities, school districts and individuals, with new suits being filed every week.

A series of rulings on motions to dismiss the lawsuit have trimmed the cases, somewhat, but major claims remain, including claims of wrongful death and negligence.

A separate, parallel proceeding is going forward in state court in Los Angeles. That Judicial Council Coordinated Proceeding is moving at a somewhat faster pace, with the first bellwether trial scheduled to begin in November.

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