In a follow-up to Magistrate Judge Wang’s discovery order last week, in which the court denied defendants Microsoft and OpenAI’s motion to compel discovery for lack of relevance, on Monday Magistrate Judge Wang granted plaintiff New York Times’ motion to compel discovery, in part, to require the production of direct messages from defendants’ employees on X.com.
In opposition to plaintiff’s motion to compel discovery of text and social media messages, OpenAI argued that it did “not have possession, custody, or control over” its employees’ X.com messages because California Labor Code § 980 prohibits employers from requesting access to employees’ social media accounts. Without such access, OpenAI could not produce the messages from employees. There are no prior cases considering whether this statute could prohibit work-related discovery on social media accounts in federal court.
New York has a similar law prohibiting employers’ access to employees’ personal accounts.
The court rejected OpenAI’s argument and held such messages were discoverable:
The purpose of § 980 is to prevent employers from asking for and maintaining continued access to employees’ personal social media accounts (i.e., by turning over their usernames and passwords) as a condition of employment. Nothing in the statute suggests that OpenAI cannot ask for, collect, and produce in discovery messages sent by their employees for work purposes just because those messages were sent via social media—to hold otherwise would allow California companies to permanently hide otherwise discoverable messages from litigation by sending them on so-called “personal” social media accounts, and would stymie federal litigation.