Facebook Users Refute Joint Discovery Bid In Privacy Suit

Facebook Users Refute Joint Discovery Bid In Privacy Suit

Written By: Ali Sullivan & Allison Grande; Edited By: Michael Watanabe

Re-posted from Law360 (April 18, 2023, 11:13 PM EDT) — A group of Facebook users accusing Meta of using its Pixel tool to collect data from millions of hospital patients says discovery in their case should not be coordinated with other suits targeting the Pixel software, warning a California judge that coordination would catalyze a “quagmire” of delay, confusion and prejudice.

Meta Platforms Inc. on April 13 filed a request to coordinate discovery among cases contesting Meta Pixel, a code snippet and user tracking tool embedded in many websites. But the patients say Meta didn’t file its request in their litigation — only in the two other cases — forcing them to file a Monday statement opposing the request.

The two other actions at issue include one from anonymous Facebook users who in December hit Meta with a proposed class action accusing the social media giant of collecting sensitive taxpayer information from certain tax filing websites with the Pixel tool. Another class action, also filed in December, contends Pixel is embedded on the California Department of Motor Vehicles‘ website, allowing Meta to obtain vast amounts of protected data on a daily basis from the DMV.

The three actions vary in size and in their state of discovery, the patients argued, and coordinating their discovery would sow chaos.

“Meta’s request for a sweeping coordination order across three unrelated actions (and potentially additional actions in the future) will only result in delay, confusion and prejudice,” the filing said.

The patients say they have identified more than 600 health care web properties “from which Meta collected sensitive information and believe thousands of additional healthcare web properties will be included.” The DMV and tax suits, meanwhile, only involve one and three web properties, respectively, the filing said.

Coordinating their discovery would spur disputes about whether discovery and deposition requests are case-specific or global in nature, the patients said. Every request would be subject to that threshold determination, requiring the court to entertain numerous motions on whether a request is suited for one case or for all of them, the filing argued.

The patients are already “months ahead” of the DMV and tax users in the discovery process, the filing said, and coordination would delay the patients’ discovery efforts.

“Because discovery is underway in the healthcare action, it is in a different posture than the later filed tax and DMV actions,” the patients said.

The three cases also barely overlap, the patients said.

The health care-related litigation centers on Meta’s specific health marketing division and on the filter the company uses to screen out sensitive health data. The patients plan to seek information on that filter mechanism — discovery that will be of no use to the other plaintiffs, whose suits concern different industries, the patients said.

Additional industries could be ensnared in Meta Pixel suits in the future, the filing said. If Meta’s discovery request were approved, new plaintiffs would force the court to decide whether to reset — and subsequently delay — discovery or compel the new plaintiffs to use the existing discovery, according to the filing.

Meta did not immediately return a request for comment on Tuesday. 

The health care plaintiffs are represented by Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC, Jason “Jay” Barnes of Simmons Hanly Conroy LLC, Jeffrey A. Koncius of Kiesel Law LLP, Beth E. Terrell of Terrell Marshall Law Group PLLC, and Andre M. Mura of Gibbs Law Group LLP.

Meta is represented by Elizabeth K. McCloskey, Abigail A. Barrera, Andrew M. Kasabian, Lauren R. Goldman and Darcy C. Harris of Gibson Dunn & Crutcher LLP and by Michael G. Rhodes and Caroline A. Lebel of Cooley LLP.

The case is In Re Meta Pixel Healthcare Litigation, case number 3:22-cv-03580, in the U.S. District Court for the Northern District of California.

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