1. On August 18, 2021, Special Master Daniel Garrie (“Special Master Garrie”) and Hon. Gail Andler (Ret.) declared impasse on the issue of whether Facebook should be compelled to locate and produce any of Mark Zuckerberg's hard copy work related notebooks that exist (“Zuckerberg Notebooks”).

2. Pursuant to the Protocol for Resolving Discovery Disputes, Plaintiffs submitted their opening brief regarding the Zuckerberg Notebooks on September 1, 2021. Plaintiffs argue that Facebook should be compelled to locate, search, and produce the Zuckerberg Notebooks because they are relevant to the claims in this matter and responsive to Plaintiffs' discovery requests. Plaintiffs base their claim that the Zuckerberg Notebooks are relevant primarily on Steven Levy's book Facebook: The Inside Story, which discusses a seventeen page extract from the Zuckerberg Notebooks. “For instance, Levy writes that Zuckerberg ‘outlined ideas about privacy’ in the notebook excerpt, and that Facebook team members were ‘guided by copied pages from the Book of Change’ notebook in developing core features of the Facebook Platform, including Open Registration, News Feed, and Privacy Controls.” See Exhibit A (Plaintiffs' Motion to Compel Production of Zuckerberg Notebooks), at 5.

3. Facebook submitted their Opposition to Plaintiffs' Motion to Compel Production of Zuckerberg Notebooks on September 14, 2021. Facebook argues that (a) “notebooks from Facebook's early history are not relevant to Plaintiffs' claims, which involve features of Facebook, such as friend-sharing, that did not exist in 2006”; (b) Plaintiffs should not be permitted to “embark on a fishing expedition through the personal files of Facebook's CEO for documents that they can only speculate (1) exist, (2) date the relevant time period, and (3) contain relevant information”; (c) “Plaintiffs pursue the notebooks for the improper purpose of harassing Mr. Zuckerberg”; and (d) “none of the four RFPs Plaintiffs identified in connection with the Motion seek Mr. Zuckerberg's notebooks. Rather, they are limited by their terms to documents from 2007 and later and cannot be stretched to encompass the notebooks.” See Exhibit B (Opposition to Plaintiffs' Motion to Compel Production of Zuckerberg Notebooks) at 4-5.

4. Plaintiffs argue in the their Reply ISO Motion to Compel Production of Zuckerberg Notebooks that (a) Plaintiffs have met their burden of demonstrating the relevancy of their request; (b) Plaintiffs' RFPs encompass the Zuckerberg Notebooks; (c) the relevant time period of Plaintiffs' RFPs encompasses all of the Zuckerberg Notebooks, including those going back to 2006; and (d) Facebook's production obligations are not limited to custodial sources. See Exhibit C (Reply ISO Motion to Compel Production of Zuckerberg Notebooks).

5. Special Master Garrie finds that Plaintiffs have met their burden of demonstrating the relevancy of their request for the Zuckerberg Notebooks. Levy's book indicates that “use[d] those notebooks to convey a detailed version of his product vision' to others”. See Exhibit C, at 2 citing Steven Levy, Facebook: The Inside Story 118 (2020). According to Levy, this product vision included “a privacy ‘mixer’ that let users control who would see an item about them” See Exhibit C, at 2 citing Steven Levy, Facebook: The Inside Story 118 (2020). This request is relevant to at least one of the core allegations Facebook identifies in its Opposition: “[g]iving app developers access to sensitive user information” by enabling them “to obtain any information about the users' Facebook friends that the users themselves had access to” (i.e., friend-sharing) “from roughly 2009 to 2015”. See Exhibit B, at 4. Facebook claims, without reviewing the notebooks themselves, that the Zuckerberg Notebooks are not relevant because Plaintiffs' claims “involve features of Facebook, such as friend-sharing, that did not exist in 2006”. See Exhibit B, at 4. Facebook's argument fails, however, because application features such as those at issue in this matter often take years to develop and it is possible information related to the design of future Facebook features exists in notebooks from 2006, if not notebooks from later years. In any event, Facebook is not able to assert that the Zuckerberg Notebooks are in fact not relevant without reviewing them.

*2 6. Special Master Garrie finds that Plaintiffs' RFPs encompass the Zuckerberg Notebooks as the Zuckerberg Notebooks are responsive to RFPs 57, 35, and 38. See Exhibit C, at 4-5.

7. Special Master Garrie finds that the relevant time period of Plaintiffs' RFPs encompasses all of the Zuckerberg Notebooks, including those going back to 2006. See Exhibit C, at 6, citing Decl. of Alexander P. Swanson in Supp. of Opp. to Pls.' Mot. to Compel Ex. 8 at 10 (“Each Document Request shall be interpreted to include all documents and information that relate to the Relevant Time Period or otherwise-specified period, even if such documents or information was prepared or published outside of the Relevant Time Period or otherwise-specified period.”).

8. Special Master Garrie finds that Facebook's production obligations are not limited to custodial sources. The ESI Protocol agreed to by the parties does not limit Facebook's discovery obligations to only the identified custodians. Rather the ESI Protocol states “[i]n addition to identifying documents pursuant to an agreed upon search protocol, the parties recognize that they are obligated to produce relevant, responsive, non-privileged documents of which they are aware, regardless of whether such documents contain any of the agreed upon or additional search terms.” See Exhibit D (ESI Protocol), at 4. Facebook provides to no evidence that searching and producing responsive documents from the Zuckerberg Notebooks is inconsistent with the ESI Protocol.

9. No later than November 15, 2021, Facebook is to locate and collect any Zuckerberg Notebooks that exist and complete a preliminary responsiveness review of a sample of the notebooks as set out in paragraph 10 below.

10. After collecting the Zuckerberg Notebooks, Facebook is to estimate and report to Special Master Garrie the total number of pages of information contained therein. Facebook is to make a good faith effort to manually review a random sample of approximately 10% of the estimated total pages and report to Special Master Garrie the number of pages identified as responsive. Special Master Garrie will issue an order setting out next steps based on the information provided by Facebook.

IT IS SO ORDERED.