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For GCs, A Troubling Ruling From Mass. Supreme Court

FISHING SNOOP PRIVACY privilege 479918 420

April 22, 2021

Following revelations that data-analytics firm Cambridge Analytica had obtained and utilized Facebook users’ data for political-advertising purposes, Facebook commissioned a law firm to do an internal investigation. “The law firm and Facebook’s in-house counsel ‘designed, managed, and oversaw’ the investigation for the purpose of gathering facts for providing legal advice to the company,” notes Todd Presnell, discussing this case in his Presnell on Privileges blog.

Subsequently, the Massachusetts attorney general’s office began its own investigation of Facebook and wanted to see what Facebook’s had come up with. Facebook’s investigation, notes Presnell, had been undertaken specifically “(1) to gather facts (2) for providing legal advice.” Nonetheless, the Massachusetts Supreme Court, by cutting a distinction between the investigation itself and the facts uncovered in that investigation – and also noting  the investigation was complex, and that requiring the AG to cover the same ground would entail “undue hardship”- ruled the AG could essentially have access to the work product.

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