Can Mark Zuckerberg duck deposition in Meta privacy class action?

Mark Zuckerberg has better things to do than sit for a deposition.

Or so lawyers for Meta Platforms suggest in a pending petition to the 9th U.S. Circuit Court of Appeals, objecting to the billionaire CEO being forced to give testimony in a proposed privacy class action.

The company invokes a controversial principle known as the apex doctrine to claim Zuckerberg should be spared the hot seat, arguing that he has no "unique" knowledge of the case, and plaintiffs' lawyers could get the same information from lower-level Meta employees.

Plaintiffs want to question the CEO about allegations that Meta obtained private health information from millions of Facebook users without their knowledge or consent via its Pixel tracking tool. The claims echo those in a class action by users of fertility tracking app Flo Health, where a San Francisco jury on August 1 found Meta violated the California Invasion of Privacy Act. Damages are yet to be determined, but as I previously noted, the total could be huge.

In June, U.S. District Judge William Orrick in San Francisco agreed with U.S. Magistrate Judge Virginia DeMarchi and gave the plaintiffs a green light to depose Zuckerberg. However, the judge limited the session to a maximum of three hours and narrowed the scope of allowable questions to center on a consent decree Meta entered into with the Federal Trade Commission involving the Flo app and Zuckerberg's role as a final decisionmaker on privacy-related matters.

A Meta spokesperson did not respond to a request for comment. The company in court papers has denied wrongdoing in both cases.

Plaintiffs' lawyers from Gibbs Mura declined to comment for this column.

Defense counsel from Latham & Watkins and Gibson Dunn & Crutcher in July asked the 9th Circuit for a writ of mandamus to nix the deposition, calling it "a critically important issue of first impression" for the San Francisco-based court.

Mandamus is a "drastic and extraordinary" request, plaintiffs' lawyers say, arguing that the trial court judge in allowing the deposition committed no clear error to justify such relief.

But defense counsel say there's a larger issue at stake than a one-off deposition. Multi-billion-dollar companies like Meta face scores of lawsuits, and their leaders have "uniquely crucial and demanding job duties, as well as limited time," they wrote. That makes being called to testify especially burdensome.

District courts within the sprawling 9th Circuit are "deeply divided" on exactly when and how to properly apply the apex doctrine, Meta lawyers said in asking for appellate guidance.

Indeed, spats over deposing CEOs have arisen regularly in court within the 9th Circuit and beyond in cases involving companies including Microsoft, Tesla, Uber, and Alphabet. In some instances, execs were let off the hook, while others were compelled to sit for depositions.

Such demands can be more about harassment than a legitimate need for information, the Meta lawyers claim, arguing that deposition testimony is only justified if the executive has unique, first-hand knowledge that cannot be obtained elsewhere.

Here, they assert, the bid to depose Zuckerberg is "a ploy to increase the burdens of this litigation and obtain perceived leverage."

Plaintiffs' lawyers counter that state and federal procedural rules already allow subpoenaed witnesses to contest demands for their testimony. There should be "no special dispensation from civil discovery for corporate executives simply because of their status as titans of industry," wrote lawyers from Gibbs Mura; Simmons Hanly Conroy; Cohen Milstein Sellers & Toll; Kiesel Law; and Terrell Marshall Law Group.

The underlying litigation began in 2022, when plaintiffs alleged Meta violated a federal wiretap law and a California privacy law, as well as its own contractual promises governing user privacy on Facebook, my Reuters colleague Jonathan Stempel reported.

According to the complaint, Meta Pixel -- an internet analytics tool that Meta makes available to website developers -- provided sensitive information about users' health to Meta when they logged into patient portals where it had been installed, enabling Meta to make money from targeted advertising.

Meta in court papers has responded that it should not be held liable if certain healthcare providers allegedly misused Pixel, "a publicly available tool that Meta did not implement or configure on the providers' websites."

Plaintiffs' lawyers, in justifying their request to question Zuckerberg, argue that from the start he's been implicated in the case. "He had personal knowledge of Meta's intent to receive this information," they allege, "and he knew about and played a key role in Meta's collection of sensitive health data."

The appeals court has not indicated when it will rule on the petition, but Meta lawyers notified the district court that Zuckerberg's deposition may proceed this month in Palo Alto if the 9th Circuit denies its mandamus petition by August 21.