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naraburns  nihil supernum  1yr ago (text post)   29303 thread views

Culture War Roundup for the week of February 6, 2023

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As a related follow-up to my recent post on a judge sanctioning Trump and his attorney for almost $1 million, another judge (Obama appointee FWIW) has also levied a $1 million sanction on Facebook and their attorney, the powerhouse law firm Gibson Dunn.

Here's the link to the 53-page opinion. The core issue is a discovery dispute, something trivially common with civil litigation. Some people sued Facebook for privacy violations following the revelations that Facebook may have been less than honest about what user information they share with 3rd party app developers (related to the Cambridge Analytica scandal). The plaintiffs were legally entitled to discovery, which is the vehicle that allows them to ask Facebook to disclose records that may be used against them in litigation. As an example, consider something minor like a trip and fall case in a grocery store involving cantaloupe displays. Once they get past the initial stages by demonstrating they probably have a valid claim, the person suing the store can investigate the issue by demanding that the store turn over all relevant evidence, including emails, memos, text messages, calendar invites titled "we need to address the cantaloupe display problem" and so on. Unless the information is protected by some sort of legal privilege (e.g. the manager of the store emailing the company's attorney for legal advice) then the store is required to hand over the rope that may be used to hang them. Some of the stuff uncovered can be extremely damaging and for that reason alone you can imagine why there might be some reluctance on the part of the store. Too bad, so sad.

That's basically what happened in this case, spanning across more than three years: a fuckton of stonewalling from Gibson Dunn and Facebook employees who were deposed for questioning. For example, the plaintiffs found evidence that although Facebook claimed they closed an access loophole for information about users' friends, they actually kept the gates open (referred to as "whitelisting") for some 3rd party apps they considered especially valuable. This example from page 27 is illustrative of the stonewalling:

Several months earlier, the plaintiffs had deposed Chang. When asked whether she was “making a recommendation [in the email]…for how to deal with integrations that involve strategic value,” Chang responded, “I don’t remember specifically, so I don’t know how to answer that.” Dkt. No. 1103-24 at 106. She didn’t “remember enough to say” that the email was about the loss of access to read stream and friend data permissions. Dkt. No. 1103-24 at 107. Indeed, she could not recall what it meant to use “read stream and friend data” at all. Dkt. No. 1103-24 at 108. When asked if she could offer her “best understanding” of what her email meant, she said she couldn’t “speculate.” Dkt. No. 1103-24 at 108. When asked, “Tell me everything you can remember about your involvement in figuring out which partners should continue to have access to friends permissions,” Chang responded, “So, again, I don’t remember.” Dkt. No. 1103-24 at 119.

Chang’s testimony about her email is representative of her deposition more broadly: Although Facebook’s internal documents suggest that Chang was extensively involved in the whitelisting process, she remembered almost nothing about it. See, e.g., Dkt. No. 1103-24 at 170–71. At one point in the deposition, Chang testified that she could not remember what the term whitelisting meant at all. Dkt. No. 1103-24 at 220. She had no memory of the deprecation of friend permissions. Dkt. No. 1103-24 at 96. She did not remember that Facebook had ever allowed apps to access friends’ information. Dkt. No. 1103-24 at 70. Although she was being deposed in a case involving the Cambridge Analytica scandal and said she had met with Facebook’s lawyers for around nine hours to prepare, she claimed she did not know that the scandal was related to Facebook’s practice of sharing friends’ information. Dkt. No. 1103-24 at 17, 292–93.

Chang resisted other questions as well. When asked if the email was “the best evidence of what you were thinking at the time you wrote” it, Chang responded, “I don’t know.” Dkt. No. 1103-24 at 133. When asked if there was anything that could refresh her recollection, Chang responded, “I don’t know what I don’t know, so I can’t make that assumption that I would know.” Dkt. No. 1103-24 at 134. When asked if the email was a “good guide of what you were thinking about the topics discussed,” Chang said that would require her to “speculate.” Dkt. No. 1103-24 at 135. When asked again, Chang said she didn’t know what “good” meant. Dkt. No. 1103-24 at 136. At another point in the deposition, Chang said she didn’t know what the phrase “general understanding” meant. Dkt. No. 1103-24 at 76.

I recommend reading the full opinion† as it has a lot more juicy examples. Facebook already agreed to settle this case for $725 million, so a $1 million penalty is basically a rounding error at this point. Still, it is very unusual for a judge not just to openly lambast but also personally sanction a big law firm like Gibson Dunn. There's an impression among big law firms that they're too important to scold and part of what justifies their eye-watering bill is that you're summoning an esper to the lawfight that will browbeat and flatten your opponent through sheer presence. It's difficult to walk away from the judge's opinion in this case with any ideation that either Facebook or their lawyers were acting in good faith, so the penalties seem more than appropriate here. Sanctions against attorneys are extremely rare, generally they only happen if you fuck with a client's money, so I'm hopeful this is an omen towards more frequent attorney spankings. I have nothing to worry about myself because it's not like leopards would eat my face.

† I know I'm a lawyer but I personally find that the vast majority of legal opinions I encounter are written with the aim of making them readable and accessible by the general public. Am I off-base?

It's difficult to walk away from the judge's opinion in this case with any ideation that either Facebook or their lawyers were acting in good faith, so the penalties seem more than appropriate here. Sanctions against attorneys are extremely rare, generally they only happen if you fuck with a client's money, so I'm hopeful this is an omen towards more frequent attorney spankings. I have nothing to worry about myself because it's not like leopards would eat my face.

I'd hope, but in addition to the Culture War nexus (and to be fair there, one can find sanctions against where the valience went the other direction), it's not clear how well the whole framework operates to resolve or discourage abuses of the court system. In this specific context, there's also quibbles about how much a million dollars matters to Facebook, compared to the cost of just their testifying internal experts nevermind the rest of the court case, but there's a deeper issue.

The legal standards under Rule 11(b) and Rule 37 (not applicable to all state courts), 28 U.S.C. § 1927 and the more broad Chambers 'inherent power' are theoretically focused on false, harassing, or obstructionist efforts that interfere with due process rights, in practice the requirements of bad faith and repetition (explicit in §1927, implicit in FRCP jurisprudence and the various inherent power of sanction cases) make most sanctions claims an unachievably high bar to meet even in the face of flagrantly abusive acts, so long as those flagrant abuses at least pretend to follow explicit commands from the court. See, for example, how Rule 37 only requires (with some exceptions) sanctions to be granted should discovery misconduct reach a point where the court has to issue Motions to Compel Discovery.

That is, it ends up less about abuses of the court system and more about Contempt of Judge. It's not hard to find cases where hilariously false claims made with no interest in vetting them, but litigants were given free bites at the apple so long as it wasn't the judge's problem.

Facebook's behavior here is bad, but even a lot of the more aggressively bad stuff -- rephrasing court orders, submitting uselessly convoluted discovery, interfering with witness testimony, and just generally trying to run up costs -- aren't exactly novel. I tend to emphasize cases tied to criminal law because the stakes are higher, but there's no shortage of cases like Gary v. Glock where long-repeated delays and overt non-compliance with discovery is tolerated so long as the lawyers in question can mumble the right platitudes about the breadth of the material. The Facebook case here just lasted long enough, against people with deep enough pockets, and in a context where the judges were going over past transcripts with a fine-toothed comb, that they got caught over and over.

Maybe that'll change! I'm following a few cases active where there's been this style of abuse, including one where courts are at least considering sanctions for simply blowing off a judicial order during discovery. But I don't know that I'd make bets on it.

I know I'm a lawyer but I personally find that the vast majority of legal opinions I encounter are written with the aim of making them readable and accessible by the general public. Am I off-base?

Even as someone that's put a decent amount of effort into learning the lingo, it's hard to remember how rough a lot of the standards and formatting are for outsiders, here.

There's simple problems: not only is ibid. outside of the normal conversational phrasing most people encounter, id. is nearly ungooglable. Knowing the difference between a court case's name (which can and in civil rights cases often does change several times between filing and final mandate) and the opinion id (I think that's the technical name?) or docket number matters, and also just looks like shitty math notation if you're not into the field. There's a lot of name collision, either from a shared etymology or for simple accident; the less said about "Supreme" or "Superior" courts that aren't actually the final level of appeal the better. Federal judges, nearly as a rule, are prone to mixing technical terminology and near-sounding non-technical words, and write around the assumption their readers have or can access a wide breadth of fairly limited knowledge.

((That's not specific to legal environments: as a different example going the other way, I'm not sure the opinion's summary of "The Hive" is strictly how a programmer would describe it. Conversely, I'm not sure it should be; a lot of this specific opinion's colloquialisms produce relatively little clarity in return for their cost in perceived professionalism and neutrality.))

At a more fundamental level, opinions are also documents (usually) written to persuade, by someone who's either smarter, more versed in the particular field, and/or more experienced in writing persuasive documents than you or I. You don't have to turn that into an adversarial thing, but it's worth recognizing the difference between descriptive and normative writing, and at least some judges do the latter. Even at my most charitable, judges are picking the most relevant cites and summarize them in the most useful manner; in the real world, they do not need to limit themselves to such, or even to accurately summarizing the facts of the case.

That's not necessarily a wrong thing as a political or even pragmatic matter, but it is a different answer, and it should change the way you read these things.

Great post! I really appreciate the absurd amount of effort you put into your posts.

it's not clear how well the whole framework operates to resolve or discourage abuses of the court system. In this specific context, there's also quibbles about how much a million dollars matters to Facebook, compared to the cost of just their testifying internal experts nevermind the rest of the court case, but there's a deeper issue.

I agree. I have to assume that Facebook and Gibson Dunn went through all this obstructionist trouble because it was financially worthwhile. Just based on the ridiculous $725 million settlement amount, this had to have paid off dividends. The sanction in this particular case is less about the monetary amount and more about how the scathing rebuke from a federal judge can open the floodgates in future litigation. I imagine there is a certain apprehension from judges about pissing off Big Law, but if I was an attorney seeking sanctions against either Gibson Dunn or Facebook, you bet I will repeatedly drone on about how "parties/counsel have repeatedly engaged in this kind of behavior, as evidenced by the sanctions imposed recently". I have to deal with (what I think are) prosecutorial misconduct issues at work, and I constantly file motions complaining about issues I know will go nowhere. The best that I can hope for from the bench that is almost entirely former prosecutors is that eventually the pile will get too big to ignore.

Even as someone that's put a decent amount of effort into learning the lingo, it's hard to remember how rough a lot of the standards and formatting are for outsiders, here.

The points you bring up are something I hadn't considered. I really dislike the convention of inline citations in legal opinions, but I assumed everyone glossed over them like I did. I can see it being an issue if for example a citation to a transcript isn't recognized as such by the reader. That's relevant context missing. The problems with the different numbers you see on opinions is something I struggle with myself whenever I encounter an outside jurisdiction, but isn't really an issue if you're reading just one document no? I completely overlooked the problem with how certain common words have very specific legal meanings ("motion" is the most obvious).

I couldn’t say whether legal opinions are intentionally written for that purpose. I’d guess the legal system is a powerful selection effect where plaintiffs and lawyers prefer to bring clear cases. Combine that with extensive training and a strongly stratified talent pool, and I bet you get some good communicators.

Also, the apex of the field is writing opinions that propagate down. I’d like to think that incentivizes good technical writing.

I’d guess the legal system is a powerful selection effect where plaintiffs and lawyers prefer to bring clear cases.

Plaintiffs want to bring all sorts of bonkers cases all the time, with no regard for whether they are "clear" or even able to succeed at all. Most potential plaintiffs who reach out to law firms regard lawyers as a "get me money because something bad happened" button, and their definitions of "something bad" can be...idiosyncratic.

Plaintiff-side lawyers, on the other hand, want to bring cases which will win quickly and cheaply, and for a large amount of money against a solvent deep-pocketed defendant. This is because most plaintiffs firms take a percentage of any settlement or judgment in lieu of hourly pay from plaintiffs who aren't able to really pay lawyers' high wages in the first place. Whether the win comes as a judgment or from a settlement is of no matter. Whether the matter will be "clear" to any laypeople reading any resultant decision is a tertiary concern at best.

The system itself wants parties to settle cases before having to actually hold expensive and time-intensive trials. The entire civil procedure system is designed to make trials and judicial opinions as rare as possible. As a result, the vast, vast, vast majority of legal disputes are resolved without judicial rulings.

On the rare occasions judges do tender rulings, there is a trend for the decisions to be accessible to the laity (or, if you're a critic of the trend, to pander to the mob's prejudices and/or stoke political outrage). However, most legal issues that cases turn on just aren't that interesting to most people, because they concern weird edge cases of obscure procedural or doctrinal rules (the big obvious cases all get settled because everyone knows how they'll wind up and sees no need to incur expense just to get the result everyone already knew would happen).

I know I'm a lawyer but I personally find that the vast majority of legal opinions I encounter are written with the aim of making them readable and accessible by the general public. Am I off-base?

I think you're off-base. I am not a lawyer, though I am a reasonably intelligent person and fairly well-read *pats self on back*. Reading legal opinions is serious work for me. I can do it, but they are hard to follow and it's not something I generally choose to do. Now imagine a member of the general public who maybe doesn't choose to read challenging books, or who simply isn't that smart. They probably don't have a chance in hell of getting through that legal opinion or understanding it.

I don't know. Chang obviously said some things which were stonewalling, such as claiming not to know what the scandal was about, but a lot of those look perfectly normal. If someone asked me what X meant and I was in a court, and I was 80% confident, I'd say that I didn't know because I could get asked five such questions and then get caught on one that I "knew" but didn't really know. There's also the question of whether you "know" what an inherently vague word such as "good" means. And of course, iit's going to be hard to refresh your recollection if the problem is that you're mostly confident, but uncertain enough that it could be an issue.

It might be best to read the excerpts in context. Chang's 370-page (!!) deposition is here. In fairness, the deposition took place on Dec 2021 and she was asked about an email she sent in 2013. I personally have no difficulties recalling rough details about cases I worked on in that time period and Chang also had the benefit of spending 9 hours "preparing" for the deposition with Gibson Dunn attorneys and also had ready access to emails she herself wrote. I flatly don't believe she's being honest here.

The problem is that knowing something in everyday life is very different from knowing something confidently enough that you won't end up being tried for perjury.

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