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A.G.’s Office Says It Lacks Control of Agencies’ Documents
In Argument Before Ninth Circuit, It Disclaims Role as Attorney for Governor, State Entities Except When Its Services Are Enlisted; Is Seeking a Writ of Mandate Against District Court Over Discovery Order
By a MetNews Staff Writer
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Seen at oral argument on Tuesday are, from left, Ninth Circuit Judges Bridget S. Bade, Johnnie B. Rawlinson, and Lucy H. Koh. Before them is the question of whether the attorney general of California can be ordered to produce records held by the governor and by state agencies in litigation to which they are not parties. |
The attorney general of California is not the lawyer for the Governor’s Office or the various state agencies except where he is actively representing them, a three-judge panel of the Ninth U.S. Circuit Court of Appeals has been told in a case in which Meta Platforms, Inc.—formerly known as Facebook, Inc.—is facing a civil prosecution over alleged practices targeting, and harming, youths.
Even where there is, in fact, legal representation, the agencies, themselves, have control over their documents, Supervising Deputy Attorney General Bernard Ardavan Eskandari declared Tuesday in argument before Circuit Judges Johnnie B. Rawlinson, Bridget S. Bade, and Lucy H. Koh.
His office is contesting an order by U.S. District Court Magistrate Judge Peter King of the Northern District of California, backed up by one from District Court Judge Yvonne Gonzalez Rogers, compelling it to provide documents held by various state entities.
That order was stayed on Feb. 28, pending resolution of California’s writ action. Signing the order were Ninth Circuit Judges Milan D. Smith Jr. and Danielle J. Forrest and Senior Circuit Judge William C. Canby Jr.
Meta sought discovery from more than 200 agencies of various states in connection with an action brought on Oct. 6, 2022, by the Office of Attorney General of California and by prosecutorial authorities in 32 other states.
Underlying Action
The 2022 complaint against Meta alleges:
“Over the past decade, Mela—itself and through its flagship Social Media Platforms Facebook and Instagram (its Social Media Platforms or Platforms)—has profoundly altered the psychological and social realities of a generation of young Americans. Meta has harnessed powerful and unprecedented technologies to entice, engage, and ultimately ensnare youth and teens. Its motive is profit, and in seeking to maximize its financial gains, Meta has repeatedly misled the public about the substantial dangers of its Social Media Platforms. It 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. In doing so, Meta engaged in, and continues to engage in, deceptive and unlawful conduct in violation of state and federal law.”
As it applies to California, the pleading avers violations of the Unfair Competition Law and the False Advertising Law.
In a petition for a writ of mandate filed last Jan. 28, the Office of Attorney General declared that “[t]he Order puts the California Attorney General in the impossible position of responding to discovery requests seeking documents that he has no legal right to access.”
The Governor’s Office, acting as amicus curiae in the mandamus action, asserted that the order threatens “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.”
Oral Argument
Eskandari argued Tuesday before the panel, assembled in San Francisco:
“The District Court ruled that the AG’s exercise of his independent power under state law effectively subjects every state officer and every agency of the State of California to party discovery in federal court. The consequences of this are immense as you can tell from the joinder of 20 states’ attorneys general in the petition and the amicus submissions from the bipartisan group of state governors.”
He branded the District Court’s order “egregiously wrong.”
In representing Gov. Gavin Newsom and state agencies, the lawyer advised, “[w]e operate as outside counsel, as a law firm would,” and charge by the hour.
The lawyer maintained that in any lawyer-client relationship, the attorney has no power to demand that documents be presented by the represented party.
Lawyer for Governor
Attorney Brian Philip Goldman, representing for the Governor’s Office, said that Newsom has his own stable of lawyers, including himself, and that Attorney General Rob Bonta is not, in a general sense, his boss’s lawyer. He contended:
“California constitutional and government law have provided for decades that when the A.G. prosecutes a case in his individual capacity, not representing state agencies, he has no control over independent agency records and no legal right or duty to obtain them.”
Goldman noted that so far as the action against Meta is concerned, “We are strangers to the case.”
Recent Legislation
He pointed to AB 127, enacted into law on June 30, which, among other things, adds §11043 to the Government Code, providing, in part:
“The Attorney General has no control over any state agency’s decisions or possession, custody, or control over any state agency’s documents or electronically stored information for purposes of criminal or civil discovery or any other purpose.”
It spells out that “[w]hen the Attorney General institutes or defends an action in their independent capacity on behalf of the State of California or the people of the State of California, the Attorney General acts in the public interest of the State of California and its residents and not as the legal representative or attorney of any state entity, including entities within the executive, legislative, or judicial branches. State agencies are not parties to an action described in this subdivision, unless they are specifically named as a party, and the documents or electronically stored information of state agencies are not in the possession, custody, or control of the Attorney General.”
Its adds that “[i]t is the intent of the Legislature that this section be interpreted broadly to include any action filed by the Attorney General, whether filed in federal court or state court, to enforce state laws or defend the interests of the people of the State of California or the State of California where the Attorney General has not been requested to act as counsel for that state agency.”
Goldman said the legislation is “declaratory of existing law.”
Meta’s Contention
Mark William Mosher of the District of Columbia form of Covington & Burling, LLP argued for Meta. He cited Government Code §12511 which says:
“The Attorney General has charge, as attorney, of all legal matters in which the State is interested, except the business of The Regents of the University of California and of such other boards or officers as are by law authorized to employ attorneys.”
That, he maintained, authorizes the attorney general to gather documents from boards and officers.
In response to a question from Bade as to whether the attorney general could bring suit on behalf an agency against that agency’s wishes, responded, “Yes.”
Mosher argued that “[t]he attorney general has control of the legal matters in which the state has an interest,” proceeding to say that “he must have control over the documents.”
The case is People of the State of California v. United States District Court for the Northern District of California, 25-584.
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