Court considers recording Zuckerberg testimony for future MDL cases

U.S. District Judge Yvonne Gonzalez Rogers said she won't give Meta CEO Mark Zuckerberg special treatment when he testifies in the first bellwether trial over adolescent social media addiction--but may allow his testimony to be recorded for use in future cases.

At a pretrial conference Tuesday, with a Kentucky school district ready to try its case against four social media giants in June, Meta argued that recording Zuckerberg's testimony would save time for the defendants and the court in each upcoming trial in the MDL.

"That resolves any questions about calling him in future cases," Covington & Burling LLP partner Paul W. Schmidt, representing Meta, suggested. In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 4:22-md-03047 (N.D. Cal., filed Oct. 6, 2022).

The plaintiffs weren't keen on the request, preferring that the CEO show up at each trial where his testimony is needed. The defense's request, Previn Warren of Motley Rice LLC argued, assumes Zuckerberg's testimony will be "universally applicable to all future cases." But each case will revolve around its own set of facts, especially when the MDL involves claims brought by dozens of state attorneys general.

But the judge wasn't swayed by the plaintiffs' argument.

"I have thousands of school district cases," Gonzalez Rogers said, adding she would reconsider when the state AG cases go to trial later in the summer.

"I can see how it would not be the same [for] the AGs' cases," the judge said.

The parties agreed that Zuckerberg's testimony will take an entire day of trial, with the plaintiffs getting 3 1/4 hours to question him and the defense getting 75 minutes.

In addition to the logistics of Zuckerberg's testimony, the judge had several questions for both sides over their proposed jury questionnaires.

"I'm trying to understand the point of many of these questions," Gonzalez Rogers said.

She took issue with the plaintiffs' proposal to ask prospective jurors if they believe school districts have the right to sue social media companies for negligence and design defects, saying it was a legal question that jurors likely couldn't answer.

"I don't even understand the question," Gonzalez Rogers said. "I've said you can sue them."

Khaldoun A. Baghdadi of Walkup, Melodia, Kelly & Schoenberger, representing the plaintiffs, argued that the lawsuit is "novel" and he needs to know if the plaintiffs' entire premise causes any jurors to hesitate.

"This isn't a traditional business versus business contract dispute," Baghdadi said.

The judge was also concerned about the plaintiffs' request to ask jurors if they believe social media addiction is a real phenomenon, since it doesn't leave room for follow-up questions.

"I use questionnaires in order to have a conversation with jurors," Gonzalez Rogers said.

The judge also pushed back on a question from the defense asking if jurors had negative feelings about social media. She said that the question needs to ask about positive feelings toward social media or any high-profile defendants, singling out Zuckerberg.

Snapchat requested that its CEO, Evan Spiegel, be added to the equation as well, but the judge said it doesn't appear to her that Spiegel has the same profile as Zuckerberg -- or Elon Musk and Sam Altman, who are parties in a different upcoming trial of hers.

Each side will only get 15 minutes for voir dire, the judge said, and her goal will be to seat a jury that can judge the case fairly, not to disqualify all jurors who have any feelings about social media.

"I don't use voir dire to pre-try a case," Gonzalez Rogers said.

Warren asked the judge if she'd be willing to bar the defendants from accessing internal data from prospective jurors' social media accounts to inform their decisions in jury selection, but each defendant voluntarily promised not to do so.