(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

August 18 (Reuters) - Mark Zuckerberg has better things

to do than sit for a deposition.

Or so lawyers for Meta Platforms ( META ) suggest in a pending

petition to the 9th U.S. Circuit Court of Appeals, objecting to

the billionaire CEO being forced to give testimony in a proposed

privacy class action.

The company invokes a controversial principle known as the

apex doctrine to claim Zuckerberg should be spared the hot seat,

arguing that he has no "unique" knowledge of the case, and

plaintiffs' lawyers could get the same information from

lower-level Meta employees.

Plaintiffs want to question the CEO about allegations that

Meta obtained private health information from millions of

Facebook users without their knowledge or consent via its Pixel

tracking tool. The claims echo those in a class action by users

of fertility tracking app Flo Health, where a San Francisco jury

on August 1 found Meta violated the California Invasion of

Privacy Act. Damages are yet to be determined, but as I

previously noted, the total could be huge.

In June, U.S. District Judge William Orrick in San Francisco

agreed with U.S. Magistrate Judge Virginia DeMarchi and gave the

plaintiffs a green light to depose Zuckerberg. However, the

judge limited the session to a maximum of three hours and

narrowed the scope of allowable questions to center on a consent

decree Meta entered into with the Federal Trade Commission

involving the Flo app and Zuckerberg's role as a final

decisionmaker on privacy-related matters.

A Meta spokesperson did not respond to a request for

comment. The company in court papers has denied wrongdoing in

both cases.

Plaintiffs' lawyers from Gibbs Mura declined to comment for

this column.

Defense counsel from Latham & Watkins and Gibson Dunn &

Crutcher in July asked the 9th Circuit for a writ of mandamus to

nix the deposition, calling it "a critically important issue of

first impression" for the San Francisco-based court.

Mandamus is a "drastic and extraordinary" request,

plaintiffs' lawyers say, arguing that the trial court judge in

allowing the deposition committed no clear error to justify such

relief.

But defense counsel say there's a larger issue at stake than

a one-off deposition. Multi-billion-dollar companies like Meta

face scores of lawsuits, and their leaders have "uniquely

crucial and demanding job duties, as well as limited time," they

wrote. That makes being called to testify especially burdensome.

District courts within the sprawling 9th Circuit are "deeply

divided" on exactly when and how to properly apply the apex

doctrine, Meta lawyers said in asking for appellate guidance.

Indeed, spats over deposing CEOs have arisen regularly in

court within the 9th Circuit and beyond in cases involving

companies including Microsoft ( MSFT ), Tesla, Uber ( UBER ), and Alphabet. In

some instances, execs were let off the hook, while others were

compelled to sit for depositions.

Such demands can be more about harassment than a legitimate

need for information, the Meta lawyers claim, arguing that

deposition testimony is only justified if the executive has

unique, first-hand knowledge that cannot be obtained elsewhere.

Here, they assert, the bid to depose Zuckerberg is "a ploy

to increase the burdens of this litigation and obtain perceived

leverage."

Plaintiffs' lawyers counter that state and federal

procedural rules already allow subpoenaed witnesses to contest

demands for their testimony. There should be "no special

dispensation from civil discovery for corporate executives

simply because of their status as titans of industry," wrote

lawyers from Gibbs Mura; Simmons Hanly Conroy; Cohen Milstein

Sellers & Toll; Kiesel Law; and Terrell Marshall Law Group.

The underlying litigation began in 2022, when plaintiffs

alleged Meta violated a federal wiretap law and a California

privacy law, as well as its own contractual promises governing

user privacy on Facebook, my Reuters colleague Jonathan Stempel

reported.

According to the complaint, Meta Pixel -- an internet

analytics tool that Meta makes available to website developers

-- provided sensitive information about users' health to Meta

when they logged into patient portals where it had been

installed, enabling Meta to make money from targeted

advertising.

Meta in court papers has responded that it should not be

held liable if certain healthcare providers allegedly misused

Pixel, "a publicly available tool that Meta did not implement or

configure on the providers' websites."

Plaintiffs' lawyers, in justifying their request to question

Zuckerberg, argue that from the start he's been implicated in

the case. "He had personal knowledge of Meta's intent to receive

this information," they allege, "and he knew about and played a

key role in Meta's collection of sensitive health data."

The appeals court has not indicated when it will rule on the

petition, but Meta lawyers notified the district court that

Zuckerberg's deposition may proceed this month in Palo Alto if

the 9th Circuit denies its mandamus petition by August 21.