Salarzadeh v. Meta Platforms, Inc., a Delaware corporation et al

Filing 19

DISCOVERY ORDER RE #17 Discovery Letter Brief. (tshlc1, COURT STAFF) (Filed on 11/14/2023)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TOORAJ SALARZADEH, Case No. 23-mc-80155-TSH Plaintiff, 8 DISCOVERY ORDER v. 9 Re: Dkt. No. 17 10 META PLATFORMS, INC., A DELAWARE CORPORATION, et al., 11 United States District Court Northern District of California Defendants. 12 Tooraj Salarzadeh intends to file a defamation and harassment suit in Hong Kong on 13 14 behalf of his 17-year-old son, who is the victim of cyberbullying. Starting in approximately July 15 of 2022, one or more individuals began disseminating offensive and defamatory information about 16 his son through an anonymous social media account on Instagram with the username “fxunibxy” 17 (the “Infringing Account”). The individual(s) also sent intimidating and harassing messages 18 through the Infringing Account, falsely accusing Salarzadeh’s son of intention to commit sexual 19 assault. Salarzadeh filed a petition pursuant to 28 U.S.C. § 1782 to obtain discovery from Meta 20 Platforms, Inc., to use in the anticipated Hong Kong action.1 In ECF No. 15, the Court authorized 21 service of Salarzadeh’s subpoena on Meta, subject to Meta’s ability to move to quash or modify 22 the subpoena. The parties have now filed a joint discovery letter brief concerning Meta’s response 23 to the subpoena. ECF No. 17.2 The Court held a hearing on November 14, 2023, and now issues 24 25 26 27 28 1 Salarzadeh originally sought discovery from Meta and Instagram, LLC separately, but Meta clarified that it operates Instagram and is the proper entity for legal process related to the Instagram platform. ECF No. 9. 2 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 7, 12, 14. The petition names both Meta and “Instagram” as respondents, but in ECF No. 14 Meta explains that “Instagram is a service that is operated by Meta; it is not a separate entity or limited liability company.” 1 United States District Court Northern District of California 2 this order. The crux of the problem is that Meta says it can’t find the Infringing Account, so it has 3 produced nothing in response to the subpoena. Well, not quite nothing. Meta produced a 4 “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity,” stating under 5 penalty of perjury that “[a] diligent search for reasonably accessible and responsive records 6 revealed no records associated with an Instagram account with the username ‘fxunibxy.’” ECF 7 No. 17, Salarzadeh Ex. C. The parties dispute the adequacy of the search Meta did and the 8 sufficiency of this certification. 9 Meta states that its Instagram service has more than two billion account holders, and so 10 Meta needs to have a framework to search for account data. Meta says that it has tooling it has 11 developed to search its systems for user data, Meta used that tooling here, and it was unable to 12 locate an account. Both sides seem to agree that Meta’s certification is deficient in at least two 13 respects. First, it fails to provide any information about the nature of the search that was 14 conducted. Meta offers to supplement the certification to state that its search was performed 15 through tooling Meta uses to locate and produce user data. Second, Meta’s certification concerns 16 a search for domestic records, but probably the Infringing Account is foreign. Meta offers to 17 supplement its certification by adding that its search included both domestic and foreign Instagram 18 accounts. 19 Section 1782 provides that discovery for use in a foreign proceeding shall be conducted “in 20 accordance with the Federal Rules of Civil Procedure.” 28 U.S.C. § 1782(a). Thus, the Court 21 treats this subpoena to Meta as a Rule 45 subpoena on a non-party and follows case law applicable 22 to that situation. “Where no responsive documents are found or a dispute arises out of the 23 completeness of the production that is made, the subpoenaed person must come forward with an 24 explanation of the search conducted ‘with sufficient specificity to allow the Court to determine 25 whether the party made a reasonable inquiry and exercised due diligence.’” V5 Techs. v. Switch, 26 Ltd., 332 F.R.D. 356, 366-67 (D. Nev. 2019) (quoting Rogers v. Giurbino, 288 F.R.D. 469, 485 27 (S.D. Cal. 2012)). Meta’s bare assertion that it used tooling that it uses to locate and produce user 28 data is too little information. Meta must describe the nature of the tooling in enough detail that the 2 1 Court can determine if this search was adequate. The Court is not demanding that Meta divulge 2 confidential, proprietary information. However, there is surely a way that Meta can describe the 3 tooling it used to demonstrate whether this was a good way to search for an Instagram account, 4 without giving away trade secrets. Meta must, at a minimum, describe what it searched (at the 5 appropriate level of generality) so the Court can determine if Meta appears to have looked in the 6 right places. Meta represented at the hearing that if the Infringing Account did not turn up in the 7 search Meta conducted, then the responsive information likely does not exist. Meta must provide 8 a basis in the certification for the Court to conclude that is likely correct. As to the search for 9 foreign Instagram accounts, Meta’s agreement to revise the certification to state that the search 10 included foreign accounts resolves that issue. In addition, Salarzadeh argues that the certification fails to describe the declarant’s United States District Court Northern District of California 11 12 personal knowledge. At the hearing, Meta stated that the custodian of records who signs the 13 certification is ordinarily the person who does the search for the records, and Meta stated that it 14 can provide a certification based on the declarant’s personal knowledge. The Court orders Meta to 15 do so. 16 Salarzadeh argues that Meta’s search was limited to active systems and that Meta should 17 also be required to search backup and archival systems. In the letter brief, Meta advanced the 18 legal argument that because it is a non-party, it would be unduly burdensome to require it to search 19 backup or archival systems. However, at the hearing Meta argued that burden is really a non-issue 20 because if the search Meta conducted did not find the Infringing Account, that data is likely gone 21 and not stored in some archival system. Given that representation, the Court does not reach the 22 question of whether Meta should search backup or archival systems; the supplemental certification 23 sounds like it might moot that issue. 24 Finally, Salarzadeh argues that if Meta finds no relevant records, the certification should 25 state why no records exist, and if the records were deleted or destroyed, when, how and why. In 26 response, Meta states that if it can’t find the Infringing Account, it won’t know any of this 27 information either. Right now that is just a representation by counsel; a statement to that effect in 28 the certification is required as well. 3 1 2 3 Accordingly, Salarzadeh’s motion to compel is GRANTED as described above. The Court ORDERS Meta to serve a supplemental certification in compliance with this order. IT IS SO ORDERED. 4 5 Dated: November 14, 2023 6 THOMAS S. HIXSON United States Magistrate Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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