A federal court’s discovery order contains interesting points on production regarding social media and material possibly covered by foreign privacy

In Melian Labs Inc. v. Triology LLC, case number 4:2013cv04791, a trademark infringement action, plaintiff objected to defendant’s non responsive responses to some of its requests for production.

The order of the court (NDCA) is interesting (at least) under two perspectives.

First, the order is interesting for the part in which it deals with the social media: the court ordered that, as for the discovery requests concerning social media advertising on Facebook, Twitter, and LinkedIn, defendant was only required to “identify those websites where the information is publicly located.” Defendant must produce “documents containing content that was not, or is no longer, publicly available.” (emphasis added)

Second, the order is also interesting for the part in which it deals with a possible contrast between the request of production and Australia privacy law. Plaintiff had sought information concerning Defendant’s US customers. Defendant had refused to produce the information claiming that “the Australian Privacy Act and Australian Privacy Principles apply to protect both Australian and U.S. consumers’ data, as long as the data is stored on Australian servers.”  A protective order had been granted but Defendant was not persuaded that this would be enough under Australian privacy law: “Australian law concerns all personal information, the consumer data at issue is not necessarily ‘confidential,’ as defined in the protective order.”

The court ordered Defendant to “produce this information.” The parties, however, had to  “meet and confer regarding …[Defendant’s] proposed amendments to the stipulated protective order.

The court ordered that “[i]n the interim … [Defendant] must produce information regarding the number of U.S.-based users and the dates that they registered or created their accounts within 10 days of this order.”

However persuaded that the information could be produced “without violating Australian law”, the court held that Defendant was allowed to “submit a brief to state why Defendant believed that “amended protective order will not sufficiently address its concerns.”

Full text of the decision here


August 26, 2013


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