UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FEDERAL TRADE COMMISSION,

Plaintiff, v. Civil Action No. 20-3590 (JEB) META PLATFORMS, INC.,

Defendant.

MEMORANDUM OPINION

Defendant Meta Platforms, Inc. made two acquisitions relevant to this antitrust action —

Instagram in 2012 and WhatsApp in 2014. Plaintiff Federal Trade Commission reviewed both

transactions at the time to assess whether either posed anticompetitive concerns and ultimately

allowed both to proceed. In the course of the Commission’s review, attorneys from its Bureau of

Competition and economists in its Bureau of Economics prepared “recommendation packages”

and other notes to advise the FTC on each proposed acquisition.

As the discovery phase of this litigation proceeds, Meta now asks this Court to compel

the FTC to produce these materials, arguing that they contain relevant factual information about

the contemporaneous state of market competition that is unavailable anywhere else. For its part,

the Commission asserts that these materials are protected by a variety of privileges, most notably

the deliberative-process privilege. Meta rejoins that the privilege does not apply and that, in any

event, the FTC waived any privilege when it disclosed these materials to the House Judiciary

Committee in September 2019. As the Court agrees that the FTC has the better of this argument,

it will deny the Motion.

1 I. Background

As this Court has recounted the factual and procedural background of this case in depth

in its prior Opinions, see Fed. Trade Comm’n v. Facebook, Inc.,

(D.D.C. Jan.

11, 2022); Fed. Trade Comm’n v. Facebook, Inc.,

(D.D.C. 2021), it will

confine this brief background section to the facts surrounding the documents directly at issue in

this Motion.

On April 9, 2012, Meta — then, Facebook, Inc. — announced an agreement to acquire

Instagram. See ECF No. 155 (Def. Motion to Compel) at 4. In conjunction with this acquisition,

Defendant filed a pre-merger notification with the FTC as required by the Hart-Scott-Rodino

Act, 15 U.S.C. § 18a. Id. The Commission then reviewed this transaction over the next four

months to assess whether it posed anticompetitive concerns, taking the rare step of “requir[ing]

the submission [by the parties] of additional information or documentary material relevant to the

proposed acquisition.” 15 U.S.C. 18a(e)(1)(A). During the course of the agency’s review,

attorneys from the FTC’s Bureau of Competition and economists from its Bureau of Economics

prepared two “recommendation packages” for the Commission’s review. See ECF No. 160 (Pl.

Opp.) at 3. The FTC describes these recommendation packages as including memoranda from

BC attorneys and BE economists that “reflect legal advice, contain confidential third-party

information, and comprise part of the FTC’s internal deliberation and decision-making.” ECF

No. 160-7, Exh. A (Declaration of Holly Vedova), ¶ 9. These packages are often generated as

part of the Commission’s decisionmaking process on matters including: “(1) screening mergers

to determine whether to seek additional information, (2) authorizing and issuing compulsory

process, including civil investigative demands and subpoenas, (3) undertaking enforcement

through filing complaints, or (4) declining to take further action.” Id.

2 The first of the two recommendation packages relates to the use of compulsory process to

secure facts relevant to the potential acquisition. It includes cover memos from the BC Front

Office and BC career staff, memos “to the Merger Screening Committee — later provided to the

Commission as an attachment to the compulsory process memorandum” — and a draft resolution

authorizing the use of compulsory process. See Pl. Opp. at 3–4; ECF No. 160-8 (FTC Priv. Log)

at 1 (entries 1a–1e). The second package concerns BC and BE staff recommendations to close

the investigation into the acquisition. See Pl. Opp. at 3–5; FTC Priv. Log at 2 (entries 2a, 2b,

and 2e). After deliberating on these materials, the Commission voted 5–0 to allow the

acquisition to proceed and issued a no-action letter informing Meta that its “investigation has

been closed,” with the proviso that the decision “is not to be construed as a determination that a

violation may not have occurred.” ECF No. 160-9 (FTC Letter).

On February 19, 2014, Meta announced a second acquisition, this time of WhatsApp.

Like its previous purchase, this transaction was also subject to Hart-Scott-Rodino Act pre-merger

review. See 18 U.S.C. § 18b. This time, however, the FTC’s review was more streamlined, and

the Commission did not request the submission of additional information. It instead made a

decision based solely on Meta’s HSR filings and interviews with third parties. See Pl. Opp. at 5.

In connection with this review, BC staff created only two documents at issue here, both of which

were staff notes related to the investigation. See id.; FTC Priv. Log at 4 (entries 3 and 4). Once

again, after reviewing the transaction, the FTC chose not to challenge it.

Meta requested the documents and memoranda from the FTC that its staff generated

while reviewing both the Instagram and WhatsApp acquisitions, arguing that they contain

centrally relevant factual information about the state of market competition at the time of these

deals. See Def. Mot. at 8. The FTC, however, resisted production, arguing that the materials are

3 protected by a variety of privileges, including the deliberative-process, work-product, attorney-

client, and investigatory-file privileges. See Pl. Opp. at 1.

In now moving to compel, Meta contends that these documents contain segregable and

purely factual information relevant to its case that can be disclosed and that, regardless, the FTC

waived any applicable privileges when it shared these documents with the House Judiciary

Committee. See Def. Mot. at 2–3. To assist in its analysis, the Court ordered Plaintiff to

produce in camera redacted and unredacted copies of the disputed materials. See Minute Order

of Aug. 9, 2022. Having now reviewed those records, the Court may consider the parties’ legal

arguments.

II. Legal Standard

Federal Rule of Civil Procedure 37 entitles parties to “move for an order compelling an

answer [or] production” if, among other things, “a party fails to produce documents . . .

requested under Rule 34.” Document requests under Rule 34 “may relate to any matter that may

be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2); see Fed. R. Civ. P. 34(a) (“A party

may serve on any other party a request within the scope of Rule 26(b) . . . .”). Rule 26(b)(1), in

turn, sets the “scope of discovery . . . as follows: Parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the

needs of the case.” The main question here is whether material concerning the “matter” that

Defendant has requested in discovery is privileged under the deliberative-process, work-product,

attorney-client, or investigatory-file privileges. The party seeking to withhold a document —

here, the FTC — bears the burden of showing that the privilege applies. See United States v.

Legal Servs. for NYC,

, 1081 (D.C. Cir. 2001).

4 III. Analysis

The primary disputes between the parties here are whether the deliberative-process

privilege protects the documents that the FTC generated in reviewing the Instagram and

WhatsApp acquisitions, and, if it does, whether the Commission waived that privilege when it

shared these documents with the House Judiciary Committee. The Court looks at these two

questions in turn. While the FTC further contends that some of these documents are also

protected by other privileges, the Court need not address these because the deliberative-process

privilege acts as a complete shield.

A. Deliberative-Process Privilege

In refusing production here, the FTC invokes deliberative process. The Court first

considers Meta’s position that invoking the privilege runs counter to FTC policy. It next

addresses whether the privilege is applicable in the circumstances here, and it then examines

Meta’s final argument that its showing of manifest need defeats the privilege.

1. Availability of Privilege

Meta begins by suggesting — albeit halfheartedly — that the deliberative-process

privilege is categorically unavailable for the documents at issue here as a matter of FTC policy.

See Def. Mot. at 12–13; ECF No. 163 (Def. Reply) at 8. Defendant’s only support for this

assertion is a citation to the FTC’s 2016 Open Government Plan, a nonbinding guidance

document that states that, in the context of Freedom of Information Act Exemption 5, the “FTC

has worked under the presumption that most information protected by the Deliberative Process

Privilege . . . should be released if the file has been closed for more than ten years unless staff

can articulate a compelling reason for withholding the information.” 2016 Open Government

Plan, FED. TRADE COMM’N (Sept. 15, 2016), https://www.ftc.gov/system/files/attachments/open-

5 government/final_opengov_plan2016.pdf. Because the closure of the Instagram investigation

just celebrated its tenth birthday in August, Meta argues that the documents surrounding that

decision are now available for production. This position ignores, however, that the relevant

binding FTC regulation provides that the privilege applies for 25 years after the document is

created, not the merely ten years announced in the nonbinding guidance. See

(a)(3) (exempting certain FTC material from being made public, including “[i]nteragency

or intra-agency memoranda or letters that would not routinely be available by law to a private

party in litigation with the Commission, provided that the deliberative process privilege shall not

apply to records created 25 years or more before the date on which the records are requested”).

Because the Commission is in fact claiming protection for these documents under the

deliberative-process privilege consistent with these regulations, the timing window remains

open.

2. Applicability of Privilege

This privilege “protects from disclosure documents generated during an agency’s

deliberations about a policy, as opposed to documents that embody or explain a policy that the

agency adopts.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,

, 783 (2021). It

“covers recommendations, draft documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer,” Coastal States Gas Corp. v. Dep’t

of Energy,

(D.C. Cir. 1980), and “rests on the obvious realization that officials

will not communicate candidly among themselves if each remark is a potential item of discovery

and front page news.” Dep’t of Interior v. Klamath Water Users Protective Ass’n,

, 8–

9 (2001). If such documents were subject to disclosure, the quality of decisionmaking would

deteriorate. Whether the privilege is claimed in the context of FOIA or in the course of civil

6 discovery is irrelevant because the analysis for both is the same. See United States v. Weber

Aircraft Corp.,

(1984); Judicial Watch, Inc. v. U.S. Dep’t of State, No. 15-

687,

, at *5 (D.D.C. Aug. 3, 2021) (noting that “under Exemption 5, an

agency may withhold from a FOIA requester any ‘documents[ ] normally privileged in the civil

discovery context’”) (quoting NLRB v. Sears, Roebuck & Co.,

(1975)).

To qualify under this privilege, a record must be both “predecisional” and “deliberative.”

“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the

matter,” Sierra Club, Inc., 141 S. Ct. at 786, and remain predecisional even if an agency

subsequently makes a final decision on the issue discussed in the record. See Fed. Open Mkt.

Comm. of Fed. Reserve Sys. v. Merrill,

(1979). The primary purpose of the

“predecisional” requirement is to differentiate between documents “prepared . . . to assist an

agency decisionmaker in arriving at his decision” and those drafted “to support a decision

already made.” Petroleum Info. Corp. v. U.S. Dep’t of Interior,

(D.C. Cir.

1992) (internal quotation marks and citation omitted). To show that a document is predecisional,

the agency need not identify a specific final agency decision; it is sufficient to establish “what

deliberative process is involved, and the role played by the documents at issue in the course of

that process.” Coastal States Gas Corp.,

.

Documents, furthermore, “are ‘deliberative’ if they were prepared to help the agency

formulate its position,” Sierra Club, Inc., 141 S. Ct. at 786, and thus “reflect[ ] the give-and-take

of the consultative process.” Petroleum Info. Corp.,

(internal citations

omitted). “A document that does nothing more than explain an existing policy cannot be

considered deliberative.” Pub. Citizen, Inc. v. Off. of Mgmt. & Budget,

(D.C.

Cir. 2010).

7 a. Predecisional

Neither party appears to dispute that these documents are predecisional. The FTC

describes the Instagram recommendation packages (entries 1a–1e, 2a, 2b, and 2e of the FTC

Privilege Log) as being “prepared prior to, and provid[ing] information and analysis to inform,

the Commission’s decisions in 2012 to authorize compulsory process and close the investigation

relating to Instagram.” Vedova Decl., ¶ 17. These documents “communicate[d] [the FTC

staff’s] analyses, thoughts, theories, opinions, conclusions, advice, and recommendations made

to the Commission.”

Similarly, the WhatsApp documents (entries 3 and 4 of the FTC

Privilege Log) are notes created by investigators that contain “analysis of facts and the legal

issues arising in the review as well as opinions, recommendations, and strategy relating to further

investigation.” Id., ¶ 18.

Based on these descriptions, which appear to accurately reflect the content observed in

the Court’s in camera review, the FTC documents were clearly “generated before the adoption of

an agency policy,” Judicial Watch, 847 F.3d at 739, and contain “evaluations” or “analysis . . .

prepared for senior-level review and decisionmaking.” Machado Amadis v. U.S. Dep’t of State,

, 370 (D.C. Cir. 2020).

b. Deliberative

The parties clash, however, over whether the documents satisfy the deliberative criterion.

Meta stresses that the privilege “does not apply at all to purely factual material” and urges that

the FTC memoranda are likely to contain “material facts that were found during the

investigation,” which must be disclosed. See Def. Mot. at 13. The FTC counters that “any

factual material contained in each of the disputed documents are ‘inextricably interwoven’ with

staff’s analyses and recommendations.” Pl. Opp. at 9; Vedova Decl., ¶¶ 17, 18. Their release

8 would, consequently, “force the disclosure of the deliberative process” and cause the sorts of

harms that the privilege is meant to avoid. See Pl. Opp. at 9. The FTC has the stronger position

here.

Meta is correct that “[f]actual material that does not reveal the deliberative process is not

protected by this exemption.” Morley v. Cent. Intel. Agency,

(D.C. Cir.

2007) (quoting Paisley v. Cent. Intel. Agency,

(D.C. Cir. 1983), vacated in

part on other grounds,

(D.C. Cir. 1984)); see also Env’t Prot. Agency v. Mink,

(1973) (“[P]urely factual material contained in deliberative memoranda and

severable from its context would generally be available for discovery by private parties in

litigation with the Government.”). That does not mean, however, that all factual material

contained in government memoranda must be automatically disclosed. Rather, the court “must

examine the information requested in light of the policies and goals that underlie the deliberative

process privilege.” Wolfe v. Dep’t of Health and Hum. Servs.,

(D.C. Cir.

1988). This is because “privilege serves to protect the deliberative process itself, not merely

documents containing deliberative material.” Mapother v. Dep’t of Just.,

(D.C. Cir. 1993).

In accordance with these principles, the D.C. Circuit has emphasized that, in some cases,

“even material that could be characterized as ‘factual’ would so expose the deliberative process

that it must be covered by the privilege.” Wolfe,

. The privilege thus continues

to extend to factual material that “is so inextricably intertwined with the deliberative sections of

documents that its disclosure would inevitably reveal the government’s deliberations.” In re

Sealed Case,

(D.C. Cir. 1997). The FTC contends that this is precisely the

harm that would occur here. It further insists that any factual portions of its recommendation

9 memoranda and notes are nonsegregable, arguing that “[d]isclosing [FTC] staff’s determination

of which facts are ‘material’ is tantamount to disclosing staff’s opinions and recommendations.”

Pl. Opp. at 9.

Meta responds by pointing to Playboy Enterprises, Inc. v. Department of Justice,

(D.C. Cir. 1982), where the court held that the Department of Justice could not

withhold a report on the activities of a former FBI informant. While the government had

asserted that the entire report “reflect[ed] the choice, weighing and analysis of facts” from over

800 volumes of materials, the court noted that “[a]nyone making a report must of necessity select

the facts to be mentioned in it” and that “a report does not become a part of the deliberative

process merely because it contains only those facts which the person making the report thinks

material.”

(internal quotation marks omitted). Indeed, “[i]f this were not so, every

factual report would be protected as a part of the deliberative process.”

Meta’s reliance on Playboy Enterprises, however, is unpersuasive. The court in that case

noted that the documents at issue there were “prepared only to inform the Attorney General of

facts which he in turn would make available to members of Congress.”

Its disclosure,

therefore, would not have exposed the agency’s deliberations to public light. Unlike in Playboy

Enterprises, the factual material in this case “was not assembled for an agency actor merely to

pass along to outsiders, but rather for purely internal deliberative purposes.” Elec. Priv. Info.

Ctr. v. Transp. Sec. Admin.,

(D.D.C. 2013); see also Montrose Chem.

Corp. of Calif. v. Train,

, 68 (D.C. Cir. 1974) (holding that factual summaries

compiled into documents used by administrator were privileged because “[t]o probe the

summaries of record evidence would be the same as probing the decision-making itself”). The

documents that FTC staff prepared here are, instead, precisely of the nature that the deliberative-

10 process privilege is designed to protect, as they were “intended to facilitate or assist development

of the agency’s final position on the relevant issue[s].” Nat’l Sec. Archive v. Cent. Intel.

Agency,

(D.C. Cir. 2014).

If that were not enough, the Court’s in camera review of the materials confirms the

FTC’s proffered explanation that there are not segregable and purely factual materials among the

documents that would be appropriate for disclosure. Rather, to the extent that those documents

contain factual material, they are “inextricably intertwined” with the deliberative portions of the

documents, including predecisional staff analysis and opinions. As such, their release would

“harm[] the deliberative processes of the government by chilling the candid and frank

communications necessary for effective governmental decision-making.” Elec. Frontier Found.

v. U.S. Dep’t of Just.,

(D.C. Cir. 2014) (internal quotation marks omitted).

3. Challenge to Agency’s Decisionmaking

Meta next insists that the deliberative-process privilege does not apply because its

equitable defenses (laches, estoppel, and waiver) put the FTC’s intent and decisionmaking

process directly at issue. See Def. Mot. at 14–15. That argument, too, goes nowhere.

The Court acknowledges that the privilege is “unavailable where ‘the Constitution or a

statute makes the nature of governmental officials’ deliberations the issue.’” Landry v. Fed.

Deposit Ins. Corp.,

(D.C. Cir. 2000) (quoting In re Subpoena Duces Tecum

Served on the OCC,

(D.C. Cir.), reh’g granted,

(D.C. Cir. 1998)).

This exception is “limited to those circumstances in which the cause of action is directed at the

agency’s subjective motivation.” OCC, 156 F.3d at 1280. The privilege is not waived, for

example, when a defendant merely complains of “arbitrary and capricious” action under the

Administrative Procedure Act absent some other “showing of bad faith or improper behavior.”

11 Id. at 1279–80. Instead, “archetypal” examples of where the government’s subjective

motivations are at issue include “Title VII action[s] or . . . constitutional claim[s] for

discrimination.” OCC,

. In those cases, “Congress create[d] a cause of action

that deliberatively exposes government decisionmaking to the light,” defeating the protection of

the deliberative-process privilege.

.

No such cause of action exists here. Instead, Meta relies on the fact that its defenses

pivot on the “unfairness of the government’s conduct” in bringing this action — namely, because

the FTC “clear[ed] [these] transactions, inducing reliance over eight-to-ten years at the cost of

billions of dollars, then suddenly reemerg[ed] to challenge those acquisitions on grounds that

were likely rejected as unfounded when the transactions were reviewed and cleared.” Def. Mot.

at 15. This conduct, the argument goes, “put[s] squarely at issue the FTC’s intent and decision-

making processes in 2012 and 2014.”

To the extent that Meta’s defense hinges on its

reliance interests, however, the argument about unfair governmental action would depend not on

why the FTC failed to block the mergers in 2012 and 2014, but instead on the fact that the FTC

did not challenge those acquisitions at the time they were made. And Meta has not alleged any

kind of “affirmative misconduct” associated with its estoppel argument that would call into

question the government’s “subjective motivations.” Landry,

; see also

(finding that an “ordinary enforcement action in no way implicates the [agency’s] subjective

motivations”); Morris Commc’ns, Inc. v. Fed. Commc’ns Comm’n,

(D.C. Cir.

2009).

Meta relies on Doe 2 v. Esper, No. 17-1597,

(D.D.C. Sept. 13, 2019),

which is also inapposite because that case did involve a cause of action that was directed at the

government’s subjective decisionmaking — specifically, a constitutional claim of discrimination

12 where the court weighed whether a policy related to transgender troops was the product of “the

considered professional judgment of appropriate military officials” for purposes of deference.

Id. at *6. This required the court to inquire into the “decision-making process resulting in the

development of the [policy]” and “the process used to develop” the policy, which it could not do

without setting aside the deliberative-process privilege. Id. Unlike that discrimination case, no

such need exists here to examine the process the FTC used in deciding to forgo action in 2012 or

2014.

In sum, the Commission is entitled to rely on the deliberative-process privilege in

refusing to turn over the subject materials.

B. Waiver

Retreating to its fallback position, Meta next contends that the privilege’s applicability is

irrelevant because the FTC waived it when, in response to a September 2019 request, it shared

these same documents with members of the House Judiciary Committee. The Court disagrees.

The D.C. Circuit has recognized that “voluntary disclosure of privileged material . . . to

unnecessary third parties . . . waives the [deliberative-process] privilege . . . for the document or

information specifically released,” although such disclosure does not waive the privilege “for

related materials.” In re Sealed Case,

(internal quotation marks and citations

omitted). The Circuit also cautioned that because the privilege “exists to aid the governmental

decisionmaking process, a waiver should not be lightly inferred.”

Applying the standard for civil-discovery privileges, this Circuit has held in the FOIA

context that an agency does not waive the privilege when it transmits to Congress “memoranda

and correspondence created as part of the [agency’s] deliberative process.” Rockwell Int’l Corp.

v. U.S. Dep’t of Just.,

(D.C. Cir. 2001). Documents that were “created

13 specifically to assist Congress” and shared “for the sole purpose of assisting [a] Committee with

its deliberations,” however, do not continue to benefit from protection.

(comparing Dow

Jones & Co. v. Dep’t of Just.,

, 573–75 (D.C. Cir. 1990)). The documents here

obviously fall into the former category because they were “created as part of the [FTC’s]

deliberative processes,” Rockwell Int’l Corp.,

, and contained only agency staff’s

“preliminary agency opinions rather than articulations of a final decision.” Elec. Priv. Info. Ctr.,

(quotation marks omitted). As such, they were plainly created to assist

with agency, rather than congressional, deliberations.

The mere sharing of the Instagram and WhatsApp records with Congress also did not

compromise the confidentiality of those materials. “[A] document otherwise covered by the

deliberative process privilege does not lose this status merely because it was disclosed to a

member of Congress without an explicit warning of its confidential status.” Heggestad v. U.S.

Dep’t of Just.,

(D.D.C. 2000). For instance, in Murphy v. Dep’t of the

Army,

(D.C. Cir. 1979), the Circuit extended the same protection to documents

that were disclosed to an individual congressman, even when that disclosure was not explicitly

conditioned on confidentiality.

; see also Rockwell Int’l Corp.,

(reaffirming the protection extended in Murphy in the context of finding that DOJ did not waive

privilege when it “gave . . . documents to [a] Subcommittee only after the Subcommittee

expressly agreed not to make them public”).

The FTC’s sharing of its Instagram and WhatsApp documents with the House Judiciary

Committee occurred under similar circumstances. In providing the materials to Congress, the

Commission was responding to a formal request by the Chairman and Ranking Member acting in

their official capacities. See ECF No. 160-2 (House Comm. Letter). In its response to the

14 Committee, moreover, the Commission included a “request[] that the Committee and

Subcommittee maintain [the] confidentiality” of the nonpublic and privileged documents,

including “predecisional, deliberative materials” it was transmitting. See ECF No. 160-3 (FTC

Letter); ECF No. 160-1 (Declaration of Elizabeth Tucci), ¶¶ 13–14, 17–18. The final House

report also “does not reproduce or reference FTC staff’s internal recommendations or analysis,”

Pl. Opp. at 20, and instead limits its references to FTC documents to a discussion about the

extent to which antitrust enforcement considers anticompetitive effects of acquisitions generally.

See Majority Staff of H. Subcomm. on Antitrust, Com. & Admin. Law of the Comm. on the

Judiciary, Investigation of Competition in Digital Markets: Majority Staff Report and

Recommendations, 117th Cong. 332–33, 339 (July 2022). Particularly when transmitted to the

congressional committee of competent jurisdiction for overseeing antitrust enforcement and with

requests for confidentiality, such a disclosure is “not inconsistent with maintaining secrecy

against opponents[] [and] should be allowed without waiver of the privilege.” United States v.

Am. Tel. & Tel. Co.,

(D.C. Cir. 1980) (discussing waiver in context of

attorney-client and work-product privileges).

In the context of its argument that Plaintiff also waived the work-product privilege, Meta

contends that the FTC and HJC were actually in a “potentially adversarial posture” because HJC

was “investigating [the FTC], and potentially criticizing its actions.” Def. Reply at 5 (citing In re

Subpoenas Duces Tecum,

(D.C. Cir. 1984)); see also Am. Tel. & Tel. Co.,

(holding that waiver of work-product privilege depends in part on whether the

disclosure is consistent with “protect[ing] information against opposing parties”). The Court

need not analyze this argument, as it is inapplicable to waiver in the context of the deliberative-

process privilege. The Court nonetheless believes that this issue is worth addressing in the

15 context of the understanding that the FTC and HJC had of the confidentiality of the materials that

the Commission disclosed.

In their request letter, the Chairman and Ranking Member identify the focus of their

investigation to include three components: “(1) competition problems in digital markets; (2)

whether dominant firms are engaging in anti-competitive conduct online; and (3) whether

existing antitrust laws, competition policies, and current enforcement levels are adequate to

address these issues.” House Comm. Letter at 1. The letter goes on to acknowledge that “the

requested materials are likely to contain sensitive information regarding the FTC’s internal

decision-making processes, FTC attorney work product, and third party businesses,” but it

explains that this information was necessary for the Committee to “assess whether existing

antitrust laws are adequate for tackling current competition problems and to identify potential

reasons for under-enforcement.” Id. at 2. The request for information, then, appears to suggest

that the targets of the investigation were participants in digital markets, like Meta, as opposed to

the FTC itself, and that the Committee and the Commission understood the need to maintain the

confidentiality of investigatory materials.

Meta also insists — with boldface and italics for emphasis — that this Court should not

give much credence at all to Rockwell Int’l Corp. and Murphy because these cases were decided

in the FOIA context, and FOIA exemptions do not apply to requests from Congress. See Def.

Reply at 6;

(d). But, as this Court has already explained, “the plain meaning of

Exemption 5 is that the scope of the Exemption is coextensive with the scope of the discovery

privileges it incorporates.” Fed. Trade Comm’n v. Grolier Inc.,

(1983)

(Brennan, J., concurring in part and in the judgment); see also Weber Aircraft Corp.,

(noting FOIA Exemption 5 merely “incorporates civil discovery privileges”). Additionally,

16 although the court in Rockwell Int’l Corp. observed that the earlier decision in Murphy “relied

mostly on FOIA section 552(d),” the policy justifications underlying the deliberative-process

privilege counseled the same result. Rockwell Int’l Corp.,

. It noted specifically

that under the approach it rejected, and that Meta promotes here, “every disclosure to Congress

would be tantamount to a waiver of all privileges and exemptions, [and] executive agencies

would inevitably become more cautious in furnishing sensitive information to the legislative

branch — a development at odds with public policy which encourages broad congressional

access to governmental information.”

Nor do the cases that Meta relies upon for waiver move the needle. United States v.

Phillip Morris Inc.,

(D.D.C. 2002), for example, involved an attempt by a party

to claim privilege over documents provided to a Congressional committee only after the

Committee had already “post[ed] the . . . documents on the internet.”

. Unlike in that

case, the HJC letter specifically acknowledged the privileges that would likely apply to the FTC

materials, the FTC correspondingly requested confidentiality, and the materials have since

remained confidential. Similarly, In re Fed. Nat’l Mortg. Ass’n Sec., Derivative & “ERISA”

Litig., No. 04-16398,

(D.D.C. June 9, 2009), involved documents that the

Office of Federal Housing Enterprise Oversight had inadvertently produced to individual

defendants in the litigation and that had, by the time OFHEO claimed the deliberative-process

privilege, been in those defendants’ possession “for months, if not years.” Id. at *2. Finally,

Meta relies on Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Commerce, No. 18-3022,

(D.D.C. Aug. 14, 2020), which involved the Commerce Department’s

emailing draft congressional testimony to a “non-governmental third party” to print at yet

another third party’s home. Id. at *2. Because the government did not “take steps to protect

17 [the] privileged materials,” the court found that it had waived deliberative-process protection. Id.

at *2. Here, however, the FTC did take steps to request the confidentiality of the material it was

disclosing, as the Court has already discussed.

C. Showing of Need

Meta’s final toss contends that even if the FTC did not waive its claims of privilege, the

Instagram and WhatsApp documents should nonetheless be disclosed because Defendant has

demonstrated a “manifest” showing of need sufficient to overcome the privilege. See Def. Mot.

at 15. This effort falls short of its target.

The deliberative-process privilege is a qualified privilege that can be “overcome by a

sufficient showing of need.” In re Sealed Case,

. “This need determination is to

be made flexibly on a case-by-case, ad hoc basis.”

Each time the privilege is asserted, a

court “must undertake a fresh balancing of the competing interests.”

(quotation omitted).

“The court must weigh the public interest in ‘prevent[ing] injury to the quality of agency

decisions’ against the ‘need of the party seeking privileged evidence.’” Brown v. D.C., No. 10-

2250,

, at *4 (D.D.C. Aug. 31, 2021) (quoting In re Sealed Case,

); see also In re Anthem, Inc. Data Breach Litig.,

(D.D.C.

2017) (“[P]rivileged materials may be ordered disclosed if the court concludes the private need

for disclosure outweighs the public interest in non-disclosure.”).

In making this determination, a court must consider, inter alia, (a) “the relevance of the

evidence,” (b) “the availability of other evidence,” (c) “the seriousness of the litigation,” (d) “the

role of the government,” and (e) “the possibility of future timidity by government employees”

should the materials be released. In re Sealed Case, 121 F.3d at 737–38 (internal citations

18 omitted). “The party seeking the documents bears the burden of demonstrating that the balance

of interests tips in his or her favor.” In re Anthem, Inc. Data Breach Litig., 236 F. Supp. at 159.

As this Court has already discussed, it is doubtful that the evidence Meta seeks from

these memoranda and notes is particularly relevant to its equitable defenses. To the extent that

the company characterizes the FTC’s current enforcement action as unfair, it is the pure fact that

the Commission previously allowed the acquisition to continue that is of relevance to Meta’s

reliance interests, not the reasoning for their acquiescence. Additionally, the FTC has identified

all of the available documents and witnesses that it interviewed ahead of its 2012 and 2014

recommendations, see Pl. Op. at 19, leaving only the staff analysis and opinions as unavailable to

Meta. The availability of this evidence negates any need for the specific recommendation

memoranda and notes prepared by FTC staff for the Commission. See Fed. Trade Comm’n v.

Boehringer Ingelheim Pharms., Inc.,

, 155–56 (D.C. Cir. 2015) (indicating that

“special circumstances” warranting disclosure are not present when witnesses are available for

deposition); see also Mischler v. Novograaf Grp. BV, No. 18-2002,

, at *10

(D.D.C. Nov. 19, 2019).

Although the Court recognizes the seriousness of this “la[test] great antitrust battle in our

courthouse,” Facebook, Inc., 560 F. Supp. 3d at 4, and the role of the government in carrying its

burden when seeking affirmative relief, these factors are outweighed by the public interest in

“prevent[ing] injury to the quality of agency decisions.” In re Sealed Case,

(quoting Sears,

). For the reasons the Court has already explained based on its in

camera review of the records, the release of the documents at issue here would “harm[] the

deliberative processes of the government by chilling the candid and frank communications

necessary for effective governmental decision-making.” Elec. Frontier Found.,

19 (internal quotation marks omitted). Meta has consequently failed to demonstrate a “sufficient

showing of need” to defeat the privilege. In re Sealed Case,

.

IV. Conclusion

For the foregoing reasons, the Court will deny Defendant’s Motion to Compel. A

contemporaneous Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 6, 2022

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