Facebook's pursuit of app developer who leaked company documents continues

23 Sep 2020 9:47 am by Amy Miller

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Facebook is seeking an exhaustive forensic investigation into the electronic communications of a disgruntled app developer accused of leaking sensitive company documents, sealed under court order, to officials and journalists in the US and UK.

The documents fueled a regulatory and public relations nightmare, provided explosive evidence for ongoing investigations into potential antitrust and privacy violations in the US and the UK, and led to a string of critical news stories.

There is no question where the documents came from: Six4Three founder Ted Kramer. They had been produced as evidence in Kramer’s ongoing lawsuit against Facebook. Kramer has contended that he had no choice but to turn them over to the UK Parliament’s Digital, Culture, Media and Sport Committee when he visited London on Nov. 19, 2018.

The media frenzy around the documents has largely abated and Six4Three is seldom seen in news headlines lately. But Facebook still wants answers about why the sealed documents were in Kramer’s possession, how they were leaked, and who, exactly, received them.

The social network plans to make its case for the investigation during an Oct. 2 case management conference in California state court.

New evidence refutes Kramer’s claim, Facebook has told a state court judge in Silicon Valley. In fact, Kramer and his legal team were reaching out to lawmakers, regulators and the media, trying to attract attention to the case and get the documents unsealed long before they were turned over to the UK Parliament, Facebook said, and then they tried to hide their plan.

Facebook is now seeking more proof, starting with a detailed analysis of Kramer’s digital footprints at that time.

— Facebook calls for more discovery —

Kramer, developer of a now-defunct app that scrolled Facebook for bikini photos, had sued Facebook in 2015 after the company stopped letting app developers access not only Facebook users' data, but also the data of users’ friends on the social network.

After documents from the case were made public by the UK Parliament, San Mateo Superior Court Judge V. Raymond Swope blasted Kramer for violating his court order to keep evidence in the case under seal, and ordered Kramer to hand over his laptop (see here).

Swope, however, recused himself from the case a year later after being challenged by Kramer’s legal team (see here).

A new judge has taken over the case, and Facebook recently proposed engaging an independent forensic examiner to investigate what happened, and Kramer’s laptop is just the start.

“Despite diligent efforts” by Facebook to investigate, “very little discovery has occurred related to the violations of the Court’s orders,” Facebook told San Mateo Superior Court Judge Gerald J. Buchwald in court documents filed on Aug. 6.

But what Facebook has learned through discovery so far calls into question Kramer’s claims that he was forced to turn over the documents in London, and demands further investigation, Facebook said in an Aug. 6 court filing (see here).

— An allegedly orchestrated campaign —

Evidence shows that Kramer and his legal team had in fact worked to "orchestrate a campaign" to share confidential information from the case with lawmakers, regulators, and journalists in an effort to make Facebook’s confidential information public, even though they knew what they were doing violated court orders, Facebook argued. Then they tried to prevent Facebook from finding out about the scheme.

The team even considered hiring an expert, Paul-Olivier Dehaye, to serve as an anonymous source for media reporting on Six4Three’s allegations. A reporter for The Guardian, Carole Cadwalladr, had introduced Six4Three’s legal team to Dehaye in an email chain, and they discussed using him as an anonymous source for one of her articles, Facebook said. Six4Three’s team also included Dehaye on correspondence to other journalists, Facebook said.

That same legal team then filed a nearly identical lawsuit on behalf of a different company, Styleform IT, on Nov, 2, 2018, in San Francisco Superior Court, based on confidential documents obtained in the Six4Three case, Facebook argued.

Facebook is seeking permission to depose Kramer again, as well as former members of his legal team. Lawyers plan to discuss the scope of possible questioning at the Oct. 2 case management conference.

Facebook said it wants to cross examine Kramer about the sworn statements he’s already submitted “to test their veracity and completeness.”

Facebook also wants to seek further evidence of any communications between Kramer and his legal team with any third parties, including Dehaye, about the case.

“A full production sufficient to show the identity of all third-party individuals and entities with whom Six4Three and its agents and representatives had contact is expected to show the full scope of Six4Three’s unauthorized disclosures of Facebook’s Confidential Information,” Facebook said.

— Kramer’s digital trail —

To do that, Facebook wants to work with independent forensic examiners to comb through Kramer’s computer, USB drives, cell phone and online accounts to find out if he transferred or destroyed any Word documents, PDFs, Excel spreadsheets, PowerPoint presentations, emails and even calendar entries to anyone during that time period.

Facebook wants to specifically search for the names of 61 journalists, news organizations, regulators and politicians in the US and UK with whom Kramer may have shared the documents. Reporters such as Cadwalladr are of particular interest because, according to Facebook, she met Kramer in London in May 2018 to discuss the Six4Three documents, months before Kramer turned them over to UK lawmaker Damian Collins.

According to Facebook, Cadwalladr told Kramer she wanted to discuss Six4Three’s case with Collins, a member of UK Parliament and chair of the DCMS Committee. On Oct. 1, 2018, Kramer emailed Collins and said he had been following his investigation into Facebook and that he had communications from CEO Mark Zuckerberg “regarding Facebook’s treatment of user data and third-party developers from 2007 to 2015,” Facebook said.

Kramer attached “a document that should assist you and your committee as you approach Facebook for documentation and evidence related to the company’s handling of user data,” Facebook said.

— 'No discovery is required' —

Six4Three and the legal team accused of orchestrating the scheme argue there is no need for further discovery. They have already admitted they spoke with government officials and journalists who wanted to unseal Facebook’s documents, they said in a Sept. 8 court filing.

“No discovery is required to prove this,” they said.

The court has already allowed Kramer to be questioned, they said, and any questioning of Six4Three former counsel would be “highly inappropriate and risk revealing information subject to attorney-client and work product privileges.”

Furthermore, an analysis of documents classified as highly sensitive by Facebook that were seized by the UK Parliament were not confidential, they said. It's true that Kramer met with Cadwalladr in May 2018, they said, but, again, no confidential information subject to the protective order was shared.

The costs of pursuing this matter are now outweighing any benefit Facebook might receive at this point, Six4Three argued.

“The costs of this 21-month satellite litigation have far exceeded any damages Facebook might obtain even if it prevailed in obtaining a contempt conviction or monetary sanctions award for damages resulting from the publication of these 10 exhibits,” they said.

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