Judge orders Zuckerberg, Mosseri, Spiegel to testify in social media trials

Big tech executives Mark Zuckerberg, Adam Mosseri and Evan Spiegel will have to testify in coordinated proceedings for civil claims that their social media platforms Facebook, Instagram and Snapchat promote addictive behavior in students with negative impacts on learning and mental health, a Los Angeles judge ruled on Monday.

Judge Carolyn B. Kuhl struck down motions to quash trial notices compelling the executives to testify, finding that the apex doctrine protecting high-level executives from burdensome or harassing testimony demands did not apply at this stage of the proceedings.

"Defendants have failed to persuade this court that it should now impose the specific requested restrictions on the trial testimony of Mosseri, Zuckerberg, or Spiegel. This court is confident that the parties and this court can work together to make sure that trial is conducted in a way that attempts to avoid undue burden on all witnesses," Kuhl wrote in a tentative ruling that she adopted in full Monday morning.

Kuhl ruled that the executives would be required to testify at the first of three bellwether trials, with determinations to be made later as to the following two trials.

The defendants include Meta Platforms, owner of Facebook and Instagram, and Snap Inc., the maker of Snapchat. Zuckerberg is the CEO of Meta and co-creator of Facebook, Mosseri is the head of Instagram and Spiegel is the CEO and co-founder of Snap.

The motions to quash were argued on behalf of Meta on Monday by Covington & Burling LLP partner Paul W. Schmidt of New York and Washington, D.C., while Snap was represented by Munger, Tolles & Olson LLP partner Jonathan H. Blavin of San Francisco.

The plaintiffs opposing the motions were represented by Ian P. Samson of Panish Shea Ravipudi LLP in Los Angeles.

The coordinated proceedings stem from claims that the design features and operation of social media platforms like Facebook, Instagram and Snapchat contribute to psychological, emotional and physical injuries to children, including wrongful death in some cases. Other defendants include Google, which owns YouTube, and the makers of TikTok. Social Media Cases, JCCP5255 (Los Angeles County Sup. Ct., filed Oct. 24, 2022).

Arguing for Meta in support of the motions, Schmidt criticized arguments by plaintiffs' counsel that the apex doctrine, as described in the case Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287 can only apply to the discovery stage, not to trial.

"Liberty Mutual framed those concerns in the context of discovery because that's what was before the court in that setting," Schmidt argued. "But there's no reasonable basis put forward that I know of to say those concerns are any different than trial, where you can be, I think, even more concerned about abuse and harassment."

Blavin said these arguments largely applied to his client, Snap, as well, pointing out that the plaintiffs previously used only six of seven hours allotted to depose Spiegel.

"For plaintiffs now to come in and say, 'We have additional questions that we couldn't ask Mr. Spiegel at his deposition,' when they left an hour on the table is quite inappropriate," Blavin said. "They had an additional whole hour to ask Mr. Spiegel questions, and they made the decision not to do so."

In response, Samson argued that Kuhl's tentative ruling was "dead on."

"It's [the defenses'] burden to say that the witness who is subject to process in California, procedurally proper, should not have to come and should be treated differently than any other witness would be," Samson said.

He further argued that the previously taken depositions don't preclude the witnesses from being compelled to testify in court.

"They pointed to nothing other than a busy schedule, which was not fleshed out at all in the initial motion and now has been replaced with certain blackout dates only as the reason for why these witnesses should be treated differently from anyone else," he said. "That doesn't satisfy the heavy burden."