In a suburban courtroom in Silicon Valley – far from the jurisdiction of Westminster – Judge V Raymond Swope attempted to deal with the legal fallout from an extraordinary maneuver by the UK parliament, which last week seized highly confidential internal Facebook documents from Ted Kramer, founder of Six4Three, a former startup.
How Kramer, who has been pursuing a protracted legal battle against Facebook, came to provide those documents to Damian Collins, chair of the parliamentary committee that has been investigating Facebook over fake news, was under dispute as Facebook and Six4Three’s attorneys squared off Friday afternoon.
“What has happened is unconscionable,” Swope said from the bench. “It shocks the conscience. And your conduct is not well taken by this court.”
Swope ordered Kramer to hand over his laptop, cellphone and passwords to a forensic investigator and ordered Thomas Scaramellino, a member of the Six4Three legal team who was also an investor in the company, to provide his devices for document preservation.
The documents given to parliament were produced as part of a lawsuit filed by Six4Three over allegations of anti-competitive practices by Facebook. Six4Three created a controversial Facebook app called Pikinis that allowed users to filter photos to find images with people in bikinis and other swimwear.
The lawsuit, filed in 2015, alleged that Facebook encouraged developers to create platforms within its system by implying they would have long-term access to personal user data and then later removed this access. Facebook has been fighting for months to prevent the release of internal documents related to the case.
Collins invoked a rare parliamentary power compelling Kramer to turn over the documents while the American was in London earlier this month.
According to a court filing by Kramer’s attorneys, the Six4Three executive initially sought to comply with the US judge’s seal, but “panicked” after he was told that he was in “contempt of Parliament” and could be fined or imprisoned. At that point, Kramer allegedly provided Collins’ staff with a USB drive containing documents that he claimed were accidentally left in a Dropbox folder on his computer.
Facebook’s attorneys expressed disbelief at Kramer’s version of events, pointing out Kramer had been in communication with Collins and his committee prior to travelling to the UK.
“After coordinating for weeks with the DCMS committee, Mr Kramer traveled to the United Kingdom with documents he never should have had in the first place on his laptop for some unspecified business and checked into a hotel 1500ft away from parliament,” said Sonal Mehta, an attorney for Facebook. “He voluntarily went the 1500ft to parliament, showed up unannounced, and asked to see a member of parliament. He brought with him the confidential documents on his laptop and a thumb drive.”
Though Swope offered no opinion as to parliament’s action, he appeared furious that Kramer and his attorney had failed to bring the laptop in question to court Friday.
“It was available to the House of Commons DCMS, but not to me,” Swope said. “And there is no excuse to have a laptop available to a subcommittee of the House of Commons inquiring into matters that are not within the four corners of this lawsuit, but not when you have a hearing in this court at two o’clock.”
Collins has said that he intends to release the documents to the public after he redacts personally identifying information.
Swope repeatedly admonished Six4Three and its legal team, questioning why Kramer had access to the records. The documents were provided to Six4Three’s lawyers during discovery, but should not have been shared with Kramer, according to the judge’s protective order.
“When I issue a valid court order governing the conduct of parties in this case or any such court order, I expect these orders to be followed. I do not expect a compromise of the integrity of this judicial system, which has been done,” he said. “The ends do not justify the means, whatever you’re trying to accomplish.”
Josh Lerner, an attorney for Facebook, said the disclosure of sealed documents in this manner was unprecedented and merited serious consequences.
“People don’t go out and produce hundreds of documents to foreign governments,” he said. “As a result of what happened here, lawyers can no longer say it’s never happened.”
Six4Three’s attorneys also indicated that they intended to withdraw as counsel, though the judge ordered them to remain in the case until the matter of the disclosure of records was resolved.
“We have ethical issues that are going to preclude us from remaining in this case,” said David Godkin. “This whole situation has created serious issues for us under the rules of professional responsibility.”
Godkin alleged that the legal team only recently learned that Kramer had access to the documents, but added: “My firm obviously has to take responsibility for failing to adequately prevent that from happening and we do.”
Kramer said little at the hearing. His new attorney, hired Thursday, said he was working with an international firm to review British law and any ways they could attempt to retrieve the documents handed to parliament.
The original complaint alleged that Mark Zuckerberg created a “malicious and fraudulent scheme” to force rival firms out of business and exploit users’ personal data.
One key allegation is that Facebook allowed certain companies to maintain access to user data in exchange for increased spending on Facebook ads. The Wall Street Journal reported Wednesday that some other redacted papers appeared to support that allegation.
Six4Three lawyers have also raised questions about Facebook’s exploitation of user privacy, citing the Cambridge Analytica scandal.