Page 1
Ninth Circuit:
Attorney General Is Not Necessarily Lawyer for State Agencies
Opinion Says Court Must Find Existence of Counsel-Client Relationship Before Demanding That Office Turn Over Documents in Another Department’s Care
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals on Friday rejected the notion that the California attorney general is always the legal representative of the state’s various agencies, saying that discovery orders—issued in an enforcement action against Meta Platforms Inc.—demanding that the office produce documents in the custody of other departments were “clearly erroneous” because they did not require a showing of a lawyer-client relationship.
In a memorandum opinion, signed by Circuit Judges Johnnie B. Rawlinson, Lucy H. Koh, and Bridget S. Bade, the court declared that “[w]ithout an affirmative showing that an attorney-client relationship presently exists, discovery of nonparty state agency documents should be conducted” via the rules governing the issuance of subpoenas.
Friday’s decision follows an order issued by U.S. District Court Magistrate Judge Peter Kang of the Northern District of California in September 2024, requiring Attorney General Rob Bonta—and his counterparts in 20 other states—to produce documents in the care of other departments. The officers moved for relief from the order before District Court Judge Yvonne Gonzalez Rogers, who denied the request as to some of the materials in March.
In January, while the request for relief was pending, California filed a petition for a writ of mandamus directing Rogers to grant their objections to the discovery orders, and the other states successfully moved to join in the request.
Civil Enforcement Action
Acting as a coalition, 33 states filed a civil enforcement action against Meta under various consumer-protection statutes, including California’s Unfair Competition Law, the False Advertising Law, and the federal Children’s Online Privacy Protection Act of 1998.
In the March 2023 complaint, they asserted that “Meta is financially motivated to attract and retain young users on its Social Media Platforms,” which include Facebook and Instagram, so the company can “collect more data on the user and serve the user more advertisements.” They also alleged:
“[Meta] has concealed the ways in which these Platforms exploit and manipulate its most vulnerable consumers: teenagers and children. And it has ignored the sweeping damage these Platforms have caused to the mental and physical health of our nation’s youth.”
During discovery, Meta requested the production of various documents from multiple agencies under Federal Rule of Civil Procedure 34, which provides that “[a] party may serve on any other party a request” for information, arguing that the attorneys general had control over the material.
Attorney-Client Relationship
Rawlinson, Koh, and Bade opined:
“Broadly, we agree with California and the State AGs that the discovery orders were clearly erroneous because they failed to require a showing of the existence of an attorney-client relationship between the Attorneys General and nonparty state agencies. Instead, the orders erroneously inferred the future existence of such a relationship as a result of Meta’s attempt to force the nonparty state agencies into producing documents under Rule 34.”
Saying that “[a]lthough we are considering objections to discovery under the Federal Rules of Civil Procedure,…we must examine state law to determine whether the attorney general of a state controls the documents of nonparty state agencies,” they cited the 2004 decision by Div. One of the Fourth District Court of Appeal in People v. Superior Court (Cole National Corporation).
In that case, Div. One concluded that “the People, by prosecuting [an enforcement] action, are not deemed to have possession, custody or control over documents of any state agency.”
Kang and Rogers both distinguished the case because the current matter is governed by Rule 34. Reasoning that the distinction was irrelevant, the jurists noted that “the California Court of Appeal performed an analogous control analysis” to that applicable in federal court and said the case was binding.
In a footnote, they added:
“Insofar as the parties litigated this case at the extremes, we reject both the view that a state attorney general never has control over the documents of a nonparty state agency and the view that a state attorney general always has control over the documents of a nonparty state agency.”
Other Factors
Writing that “in addition to showing clear error, the State AGs also sufficiently satisfy the other mandamus factors,” they concluded that the case involved significant questions of first impression “[g]iven the federalism concerns at issue.”
They also found that “although litigation costs rarely constitute prejudice for mandamus purposes,” California has alleged that “complying with the discovery orders has required the expenditure of millions of dollars in public funds and ‘strained’ the ability of California state agencies ‘to perform essential public functions.’ ”
Finding that the question at issue presented a live controversy, they said:
“[W]e reject Meta’s argument that California’s petition…is moot because the documents requested from the California agencies have been produced. Discovery is ongoing, and Meta is likely to continue to argue that California and the State AGs control the documents of nonparty state agencies.”
The judges declared:
“Mandamus relief is therefore appropriate for California and the Attorneys General of Arizona, Colorado, Connecticut, Hawai‘i, Illinois, Indiana, Kentucky, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Ohio, Oregon, South Dakota, Virginia, Washington, and West Virginia.”
However they said “[w]e deny mandamus relief to the Pennsylvania AG because Pennsylvania law explicitly grants his office control over the documents of nonparty state agencies.”
The case is People v. U.S. District Court for the Northern District of California, 25-584.
Copyright 2025, Metropolitan News Company