A years-old lawsuit in San Mateo County has made international headlines in recent days after a man who started a company that is now suing Facebook handed a committee of British lawmakers an unknown number and selection of highly confidential Facebook documents that, under court order, were strictly limited for access by his attorneys.
San Mateo County Superior Court Judge Raymond Swope, who had issued a court order that the documents be sealed, called together the legal counsels for Facebook and Six4Three the afternoon of Friday, Nov. 30, to find an answer to that very question: Why and how had his court order been violated?
"When I issue a valid court order governing the conduct of parties in this case – or any other such court order – I expect these to be followed," he said during the court proceedings. "I do not expect a compromise of the integrity of this judicial system."
On Nov. 26, Ted Kramer, founder of a company called Six4Three that is suing Facebook, was ordered, while in London, to hand over the confidential documents to the Digital, Culture, Media and Sport Committee of the U.K. House of Commons.
Kramer's company had, during Facebook's heyday of looser restrictions regarding user data, developed an application, called "Pikinis," that enabled Facebook users to search friends' photos that depict people wearing swimwear. The application shuttered after Facebook clamped down on the user data it permitted third-party app developers to use.
In April 2015, Six4Three filed a lawsuit against Facebook; the suit has been working through the county court system ever since. As part of the discovery process, the attorneys representing Six4Three had been granted access to confidential Facebook documents.
However, Kramer, as a plaintiff, was not supposed to have access to them. But he somehow gained access, and so was able to deliver Facebook's confidential documents to Parliament, which he handed over on a thumb drive. Just what was on that thumb drive was a key concern of both Swope and Facebook's legal team, and was not known by those parties at the time of Friday's hearing.
The seizure of the documents occurred in advance of a Nov. 27 international grand jury hearing on fake news and disinformation; the panel had invited CEO Mark Zuckerberg to the hearing, but he declined to attend.
According to the newspaper The Observer, the set of documents released is alleged to contain "significant revelations about Facebook decisions on data and privacy controls that led to the Cambridge Analytica scandal, which involves suspected Russian involvement in the 2016 U.S. presidential election. It is claimed they include confidential emails between senior executives, and correspondence with Zuckerberg."
A new summary report by Damian Collins, MP, chair of the DCMS Committee, released today (Dec. 5), according to the Washington Post, includes the committee's findings pulled from files seized from the Six4Three lawsuit.
According to the summary, Facebook entered "whitelisting" agreements with companies, meaning that after the company changed its platform in 2014 to 2015, it continued to provide access to data about users' friends.
"It is not clear that there was any user consent for this, nor how Facebook decided which companies should be whitelisted or not," the summary states. "The idea of linking access to friends data to the financial value of the developer's relationship with Facebook is a recurring feature of the documents."
How it happened
So how did Kramer get access to the confidential documents? The only people who could have granted him access were his attorneys, Swope said.
During the hearing, Swope vigorously questioned two of Kramer's attorneys, Stuart Gross of Gross & Klein, and David Godkin of Birnbaum & Godkin. Both mentioned a third member of Six4Three's legal team, Thomas Scaramellino, who was also a former investor in the company. He was not present, but they said he may have played a role in granting Kramer access to the files through a company Dropbox account that may have had "syncing" features they were unaware of.
After the files were delivered to Parliament, some of the confidential Facebook files in the Dropbox account had been marked for deletion, but hadn't yet been deleted, according to Gross, who said he viewed the contents of the Dropbox account after learning of the document delivery but didn't make any changes.
A sense of urgency
The potentially imminent deletion of those files created a sense of urgency in the courtroom. Facebook attorney Joshua Lerner expressed concern about the contents of the thumb drive in Parliament and urged the judge to order that the court take immediate steps to find out what was handed over. He asked that a third-party computer forensics expert be deployed immediately to capture any evidence that might be available on the laptops of Kramer and Scaramellino.
"We don't know what exists, who has access to it, (or) who else, perhaps, by the way, is traveling around with this stuff. It needs to be handled now," he said.
"The whole system of discovery breaks down if lawyers can't be trusted with confidential information," said Facebook attorney Sonal Mehta. (Discovery is the part of the legal process whereby lawyers can request documents and evidence from the other party or parties in a lawsuit.)
Swope ultimately ordered that Kramer's laptop and phone, any storage devices, including cloud storage details and all relevant passwords, be handed over by 9 p.m. that night and Scaramellino's laptop, storage devices and cloud storage details and passwords be handed over by noon the following day, as he was in New York. They were to be evaluated by an agent from Stroz Friedberg, a third-party forensics firm, to capture the evidence.
A discovery conference has been scheduled for Friday, Dec. 7.