Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the March 3, 2025 edition of the National Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
They say desperate times call for desperate measures, but lately, corporate defendants have been taking this sentiment to heart with respect to their discovery efforts. As state attorneys general play an increasingly vital role in holding powerful companies accountable for their corporate malfeasance, a concerning trend has emerged within the last year: Corporate defendants have now increasingly been seeking offensive discovery from state executive officials in response to state attorneys general filing suit. This tactic not only undermines the independence of state leadership but also threatens to derail the pursuit of justice. With abusive offensive discovery on the rise, the need for properly timed judicial intervention is imperative to preserve necessary litigation brought on behalf of state citizens.
As we know all too well, abusive offensive discovery is hardly a new phenomenon in private litigation, with defendants often using it as a tactic to overwhelm opponents, frustrate the courts, delay adjudication of key issues, and pull the focus away from the defendant’s own conduct. Document requests that are overbroad and/or seek irrelevant information, excessive interrogatories, and depositions of witnesses with little to no relevant information create all-too-familiar hurdles for private plaintiffs trying to prosecute cases against defendants.
But this newfound abusive offensive discovery practice marks an even more troubling shift in litigation, because these discovery requests target state executives who lack both the knowledge of the subject matter of the case that would justify them and the knowledge of how state attorney general actions should work to better oppose them. Thus, such requests have shifted the focus of discovery away from standard, case-oriented information gathering, where it belongs, and have instead allowed discovery to devolve into a vehicle designed to dissuade state attorneys general from taking on cases that challenge corporate interests. The problem is often compounded by confusion over the relationship between state attorneys general and their state agencies and the lack of control or access of state attorneys general in accessing the documents and/or witnesses which are within those state agencies’ purview, resulting in unrealistic demands and expectations. By dragging state leaders into the litigation process, corporate defendants aim to create a burdensome distraction that weakens the resolve of state officials, ultimately stifling the enforcement of laws created to protect consumers, workers, and the public.
Take, for example, the case of In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 4:22-md-03047 (N.D. Cal.), where more than 30 state attorneys general initiated a lawsuit in their individual capacities against the tech giant Meta, accusing the company of exacerbating the mental and physical harm of school-aged children through its social media products. After numerous, unsuccessful attempts to have the case dismissed and amid mounting public criticism for its role in fomenting and facilitating adolescents’ deteriorating mental health, Meta sought to shift the momentum in its favor by resorting to abusive discovery tactics, using Rule 34 and Rule 30(b)(6) to demand extensive information from over 200 state agencies through their respective attorneys general. In support of its folly, Meta contended that, because the attorneys general brought the case under their parens patriae authority, the state governments themselves, including their respective agencies, should be considered real parties in interest. Riffing wildly on that premise, Meta went on to claim that discovery obligations now extend to state governments as a whole, pulling in unrelated entities, such as governors’ offices, and departments of finance, public health, consumer affairs, and housing—agencies that have no direct involvement in the litigation. Meta’s sweeping discovery demand appears to be a calculated effort to overwhelm state governments and overextend the state attorneys general, who acted within their legal authority to bring the lawsuit against Meta.
In any event, the state attorneys general in the matter objected to Meta’s discovery requests and claimed that executive officials should instead be classified as third parties who must be subpoenaed pursuant to Federal Rule of Civil Procedure 45. Doubling down, Meta contended that its discovery requests were properly designed to seek documents from the states as parties to the suit—a baseless assertion that deliberately conflates the role of executive officials in litigation brought independently by state attorneys general.
In response to the dispute, the magistrate judge issued an order, which the district court affirmed, requiring the state attorneys general to produce documents within the exclusive control of state executive officials—a clear misapprehension of the relationship between the sovereign and state agencies. Following the entry of the order, the People of the State of California, through the California attorney general, petitioned the U.S. Court of Appeals for the Ninth Circuit to issue a writ of mandamus “directing the district court to grant the People’s objection to [the] discovery order[,] [alleging] that [it] violates core principles of federalism by disregarding the constitutional structure of California’s executive branch,” in People of the State of California v. U.S. District Court for the Northern District of California, Oakland, No. 25-584 (9th Cir.).
Following Meta’s outlandish discovery requests served on the attorneys general and the magistrate judge’s order mandating cooperative resolution of the discovery disputes without further judicial intervention, multiple California executive agencies, including the Office of the Governor of California, filed an amicus curiae brief in People of the State of California, correctly explaining how statewide executive agencies are distinct legal entities from the California Attorney General’s Office and that Meta’s abusive discovery practices “threaten[] to effectively restructure California’s constitutional order, rendering the governor and his agencies subordinate to the attorney general whenever he exercises his discretionary authority to bring affirmative litigation.” Brief of Office of the Governor of California as Amici Curiae Supporting Petitioner. With the threat of sanctions now looming in the lower court, without relief from the Ninth Circuit, California agencies—and, indeed, all state attorneys general remaining in the litigation—are backed against a wall and have no choice but to comply with the magistrate judge’s order and undertake review of hundreds of thousands of documents for a case in which they have no direct knowledge or relation. Certainly, California’s executive agencies have more pressing matters that demand the fullest extent of their time and attention—helping communities rebuild after the devastating Los Angeles wildfires is just the most recent addition to a long list of pressing concerns that California faces. Meta’s abusive discovery demands have no place on these agencies’ to-do lists.
While California’s executive agencies may be stretched thin, this sort of abusive discovery can—and has—pushed other states past the breaking point, simply because they do not have the resources needed to handle Meta’s burdensome discovery requests. Notably, last November, in the face of these requests, Georgia Attorney General Christopher Carr chose to dismiss Georgia’s lawsuit against Meta with prejudice. See People of the State of California v. Meta Platforms, No. 4:23-cv-05448 (N.D. Cal) (Dkt. 144). In a striking move, laying bare the cynicism of Meta’s tactics, the Joint Stipulation of Dismissal with Prejudice revealed that the subpoenas Meta had issued just months earlier—to Georgia’s Department of Behavioral Health and Developmental Disabilities, Department of Education, Board of Regents, Department of Public Health, Department of Human Services, and Department of Family and Children Services—were all immediately withdrawn. The attorney general of North Dakota also voluntarily dismissed his state’s case against Meta one month earlier, without affirmative explanation, but with the timing of the withdrawal speaking volumes.
Corporate defendants, such as Meta, possess the time, financial resources, and manpower to purposely overwhelm both the executive and judicial branches of state governments with their aggressive and irrelevant discovery demands—an ironic, albeit unfortunate approach, since those very same corporate defendants, including Meta, are the first to claim the purported overbreadth of plaintiffs’ discovery requests. If left unchecked, this tactic will serve as an enduring demonstration of corporate manipulation and will effectively tie the hands of state government actors who are simply trying to execute their mission to enforce their states’ laws.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at [email protected].
Thank you to DiCello Levitt associate Julia Veeser for contributing to this column.