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Despite the strong protections given to material subject to the attorney-client privilege, the privilege is to be construed narrowly because the privilege frustrates the investigative or fact-finding process and creates an inherent tension with society's need for full and complete disclosure of all relevant evidence during implementation of the judicial process. The privilege can be waived.
After public reporting revealed potential widespread misuse of Facebook user data by third-party applications, respondent, Facebook, Inc., hired a law firm, Gibson, Dunn & Crutcher LLP (Gibson Dunn), to conduct a far-reaching investigation to identify the extent to which apps had misused user data and advise Facebook on potential resulting legal liabilities. This investigation was known as the app developer investigation (ADI). Around the same time, the Attorney General opened an investigation into Facebook under G. L. c. 93A, focusing on whether Facebook misrepresented the extent to which it protected or misused user data. As part of that investigation, the Attorney General served Facebook with several civil investigative demands. Contained within the demands were six requests that sought the identities of the apps and developers that Facebook reviewed at various stages of the ADI, other information associated with the review of the identified apps, and internal communications about those apps. Facebook asserted that both the attorney-client privilege and the work product doctrine protected the information. The Attorney General filed a petition in the Superior Court seeking an order compelling Facebook to comply with the disputed requests. A judge concluded that most of the information was neither privileged nor work product, as it was not prepared in anticipation of litigation, and that even if it was prepared in anticipation of litigation, it was all factual information.
Should Facebook, Inc. comply with the Attorney General’s request to disclose the information in question?
The court held that although the Attorney General's targeted requests allowed Facebook to tailor its responses to the first five of the six requests to avoid disclosure of communications protected by the attorney-client privilege, the documents sought by the first five requests were covered by the work product doctrine because they were prepared in anticipation of litigation. The app information required to be produced was clearly covered by the work product doctrine and if that information was not opinion work product, Facebook must disclose that information because the Attorney General has demonstrated a substantial need for the information and could not obtain it without undue hardship.