The California attorney general urged the Ninth Circuit to block orders requiring third-party state agencies to respond to discovery demands.

As reported by Law360 (Calif. AG Asks 9th Circ. To Block Meta’s MDL Discovery Win, written by Dorothy Atkins and available here), the California attorney general urged the Ninth Circuit last Wednesday to block orders requiring third-party state agencies to respond to Meta Platforms’ discovery demands in multidistrict litigation over social media’s alleged harms, arguing in a mandamus petition the “clearly erroneous” ruling “runs roughshod” over the state’s constitutional divisions of power.

In a 39-page petition, the state’s attorney general, who is representing the people of California in a civil enforcement action against Facebook owner Meta Platforms Inc., asked the appellate court to exercise its mandamus authority and block U.S. Magistrate Judge Peter Kang’s September discovery order, which U.S. District Judge Yvonne Gonzalez Rogers has kept in place, requiring third-party state agencies to hand over documents demanded by Meta.

“Specifically, that order — issued by a magistrate judge and left in place by the district court — runs roughshod over California’s structure of divided executive power among independently elected officials,” the petition says.

The hotly contested discovery dispute is the latest in personal injury litigation launched in 2022 against Meta and other social media tech giants, including Snap Inc., TikTok Inc. and YouTube LLC. A coalition of 35 state attorneys general also filed civil enforcement actions seeking to enforce state consumer protection laws against the tech giants.

Since 2022, the litigation has been consolidated and the current MDL involves hundreds of claims by parents of minors, school districts and dozens of state attorneys general who allege that the social media companies’ platforms, which bring in billions of dollars annually in ad revenues, are designed to be addictive to the detriment of minors’ mental health and livelihood.

In September, Judge Kang, who is presiding over the MDL’s discovery, ordered third-party state agencies to hand over documents demanded by Meta, despite arguments by dozens of state attorneys general that Meta’s requests were irrelevant, overbroad and impractical given the hundreds of agencies implicated in Meta’s demands. They also argued that the AG offices don’t have the statutory authority to access and hand over state agency documents.

But Judge Kang repeatedly rejected the state AG offices’ arguments, and in November, he ordered those AG offices to provide the names and state bar numbers of agency counsel who have refused to comply. The states appealed Judge Kang’s ruling to Judge Gonzalez Rogers, who refused to stay the magistrate judge’s order after a lengthy hearing. Judge Gonzalez Rogers also threatened to sanction agencies that refuse to comply, although she held off on issuing a written ruling on the merits of the appeal.

But in the petition Wednesday, the California AG argued that Judge Kang’s decision “clearly errs as a matter of law” by finding that the California attorney general has “legal control” over documents held by the state’s third-party agencies for purposes of responding to an opponent’s discovery demands.

The state AG noted that the third-party state agencies are “controlled by and report to” California Gov. Gavin Newsom and other elected officials, and not the independently-elected state attorney general.

The California AG also argued that Judge Kang’s ruling “squarely contravenes” California’s constitution and “long-settled” state law clarified in the 2004 California appellate court ruling, People ex rel. Lockyer v. Superior Court, which held that each state agency or department is established as a separate entity under various state laws or constitutional provisions.

That ruling further clarified that when the California attorney general brings a civil law-enforcement action in the name of the people, “the people, by prosecuting [that] action, are not deemed to have possession, custody or control over documents of any state agency,” according to the petition.

The California AG’s petition added that complying with Judge Kang’s order creates “legal and practical impossibilities” by requiring the AG’s office to produce third-party state agency documents that the AG “has no legal means to access,” particularly since Gov. Newsom has declined to provide the AG’s office with access to the documents that Meta has demanded even though both the magistrate judge and district judge have repeatedly threatened severe sanctions for not complying.

The California AG argued that the Ninth Circuit should act fast and stay the magistrate judge’s order, in part because five other state agencies have withdrawn from the MDL in light of it and one more state AG is in the process of withdrawing, leaving only 29 state AG plaintiffs. Other AG offices are “teetering,” given that the magistrate judge appears “poised to extend his legally erroneous rationale to ‘party’ depositions.”

It will be interesting to see what the Ninth Circuit rules regarding the California AG’s request to block the orders – sounds like an interesting ruling to cover when that happens!

Hat tip to Judge Andrew Peck for the heads up on this story!

So, what do you think? Do you think the Ninth Circuit will block the orders? Please share any comments you might have or if you’d like to know more about a particular topic.

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