DUPRAZ v. DOES 10 (2024)

ORDER GRANTING META'S MOTION TO QUASH SUBPOENA; ORDER DISCHARGING ORDER TO SHOW CAUSE

Re: Dkt. No. 20

On July 6, 2023, non-party Meta Platforms, Inc. filed a motion to quash Plaintiffs’ subpoena to testify at an oral deposition. (Mot., Dkt. No. 20.)

Upon review of the moving papers, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, GRANTS Meta's motion to quash the subpoena.

I. BACKGROUND

A. Relevant Facts

On December 7, 2022, Plaintiffs Leonard Dupraz and Celeste Lee filed this lawsuit against Doe Defendants alleging that their respective Instagram accounts (@leonard.jp.ch and @celestlle) were hacked, which led to the accounts being disabled. (First Am. Complaint, “FAC,” Dkt. No. 25 ¶¶ 1, 8-11, 14-15.) Plaintiffs have not been able to reactivate their accounts. (FAC ¶¶ 12, 14.)

On January 6, 2023, the Court authorized Plaintiffs to serve nonparty Meta Platforms, Inc. (“Meta”), which owns Instagram, with a subpoena. (Dkt. No. 6.) Meta was served with the subpoena on January 9, 2023. (Decl. of Doris Alvarez-Reyes, “Alvarez-Reyes Decl.,” Dkt. No. 20-1 ¶ 2, Ex. A.) Meta served timely objections and subsequently met and conferred with Plaintiffs’ counsel on several occasions. (Alvarez-Reyes Decl. ¶ 3.)

On February 16, 2023, Plaintiffs served an amended subpoena for documents on Meta. (Alvarez-Reyes Decl. ¶ 5, Ex. B.) Meta contends that it conducted a diligent search, but could not find a valid, existing account for the Doe Account and informed Plaintiffs of same. (Alvarez-Reyes Decl. ¶ 6.) In response, Plaintiffs accused Meta of either not satisfying its discovery obligations or of fabricating its position. (Alvarez-Reyes Decl. ¶ 6; Email, Alvarez-Reyes Decl. ¶ 6, Ex. C.)

On March 9, 2023, Meta produced a certificate of absence of business records (the “Initial Sworn Certificate”), a sworn statement signed by a custodian of records, attesting that it had conducted a diligent and reasonable search for responsive records and that their search had not revealed any records for the Doe Account. (Alvarez-Reyes Decl. ¶ 7; Initial Sworn Certificate, Alvarez-Reyes Decl., Ex. D.)

On April 18, 2023, Plaintiffs served a subsequent subpoena on Meta for business records and oral testimony (the “Operative Subpoena”). (Operative Subpoena, Alvarez-Reyes Decl. ¶ 9, Ex. E.) The Operative Subpoena seeks records and testimony regarding the Accounts; any and all Instagram accounts that might have reported Plaintiffs’ Accounts for any conduct; and Meta's internal content moderation decisions relating to the Accounts. In addition, the Operative Subpoena seeks oral testimony regarding the Initial Sworn Certificate and (2) “[t]he search described therein, “including but not limited to (1) the person(s) who conducted the search, (2) the materials searched, (3) the date and time of the search, (4) the location of the search, and (5) the results of the search.” Id.

On May 2, 2023, Meta timely objected to the Operative Subpoena. (Alvarez-Reyes Decl. ¶ 10.) At the same time, Meta informed Plaintiffs that after a diligent search it had been unable to locate a valid Instagram account associated with the vanity name @leonard.jp.ch. Id. In response, Plaintiffs accused Meta of wrongdoing, claiming that Meta's search was “not diligent enough” and that “Meta's position [was] not made in good faith.” (5/5/23 Email, Alvarez-Reyes Decl. ¶ 10, Ex. F.) Plaintiffs also brought up the Doe Account and claimed that Meta's previous claim that it could not locate any documents for that account was inconsistent with the proof they had provided showing that “the account exists.” Id.

Meta contends that the only evidence provided by Plaintiffs that the Doe Account “exists” was a screenshot purporting to show that the Doe Account existed back in December 2021. (Alvarez-Reyes Decl. ¶ 11; Screenshots, Alvarez-Reyes Dec. ¶ 11, Ex. G.)

Meta offered to provide certificates of absence of business records for the Accounts, containing additional language stating that the results of Meta's search was consistent with its publicly stated deletion policy, which provides that data is generally deleted within 90 days after an Instagram account is deactivated. (Alvarez-Reyes Decl. ¶ 19.) Plaintiffs’ counsel, however, declined Meta's offer and informed Meta that Plaintiffs intended to seek relief from the Court through a discovery motion. (Id.; Email correspondence, Alvarez-Reyes Decl., Ex. I.)

On July 5, 2023, Meta served Plaintiffs with Sworn Certificates, confirming under penalty of perjury that, after conducting a diligent and reasonable reach for responsive records, Meta was unable to locate any records for the Accounts from 2021 through 2022. (Alvarez-Reyes Decl. ¶ 20; Sworn Certificates, Alvarez-Reyes Decl. ¶ 20, Ex. J.)

B. Procedural Background

On July 6, 2023, Meta filed a motion to quash Plaintiffs’ subpoena to testify at an oral deposition. (Mot., Dkt. No. 20.) On July 20, 2023, Plaintiffs filed an opposition. (Pls.’ Opp'n, Dkt. No. 21.) On July 27, 2023, Meta filed a reply. (Reply, Dkt. No. 22.)

On August 11, 2023, the Court ordered Plaintiffs to show cause why federal question jurisdiction exists in this matter. (Dkt. No. 23.) Thereafter, on August 30, 2023, Plaintiffs filed a first amended complaint and a response to the order to show cause. (First Am. Compl., “FAC,” Dkt. No. 25; OSC Resp., Dkt. No. 26.) The Court then ordered Plaintiffs to provide a supplemental response to the order to show cause clearly explaining the basis for jurisdiction and identifying which facts pled in the amended complaint gave rise to jurisdiction. (Dkt. No. 27.) On September 13, 2023, Plaintiffs filed a supplemental brief that addressed the jurisdictional concerns. (Dkt. No. 28.) Thereafter, the Court discharged the August 11, 2023 order to show cause. (Dkt. No. 31.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 45 governs discovery propounded by subpoena. A non-party subject to a subpoena may file a motion to quash or modify the subpoena. Fed. R. Civ. P. 45(d)(3)(A). A court must quash or modify a subpoena that subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv).

III. DISCUSSION

A. Motion to Quash

Meta moves to quash on the grounds that it has no testimony to provide regarding the Accounts (Categories 1-12), because its search turned up no records, and that it has provided sworn certificates attesting to that fact. (Mot. at 8-9.) Meta further contends that it is unduly burdensome to require it to undergo deposition testimony regarding the Initial Sworn Certificate (Categories 13-14), because the certificate speaks for itself. Id. at 9-12.

In opposition, Plaintiffs double down on their position that Meta's representation—that it cannot locate subscriber information for the deactivated Instagram accounts—is not believable. (Pls.’ Opp'n at 2.) But that is not how discovery works. Meta provided certificates attesting to the inability to locate information regarding the accounts, which satisfies its discovery obligation. As Meta argues in its reply, Plaintiffs’ unwillingness to accept Meta's sworn certificates is not reason to force Meta to undergo oral deposition. (Reply at 11.)

B. Protective Order

Additionally, Meta moves for a protective order to prevent Plaintiffs’ attempts to depose Meta regarding the certificates or the absence of business records for the Accounts. (Mot. at 12-13.) Pursuant to Rule 26, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ․ forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). Meta has provided sworn certificates to Plaintiffs to show that it is unable to locate the account information, and Plaintiffs have refused to accept the sworn representations and have, instead, sought court intervention to require Meta to produce a witness to testify regarding the subject accounts and the sworn certificate. At this point, Plaintiffs are engaging in harassment. Thus, the Court finds that Meta has shown good cause for a protective order.

IV. CONCLUSION

For the reasons set forth above, Meta's motion to quash the deposition subpoena is GRANTED. Additionally, the Court GRANTS Meta's request for a protective order, such that Plaintiffs are precluded from attempting to depose Meta regarding the certificate or the absence of business records for the Accounts.

IT IS SO ORDERED.

KANDIS A. WESTMORE, United States Magistrate Judge