Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
`META PLATFORMS, INC.,
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`Defendant.
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`Civil Action No. 20-3590 (JEB)
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`MEMORANDUM OPINION
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`Defendant Meta Platforms, Inc. made two acquisitions relevant to this antitrust action —
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`Instagram in 2012 and WhatsApp in 2014. Plaintiff Federal Trade Commission reviewed both
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`transactions at the time to assess whether either posed anticompetitive concerns and ultimately
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`allowed both to proceed. In the course of the Commission’s review, attorneys from its Bureau of
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`Competition and economists in its Bureau of Economics prepared “recommendation packages”
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`and other notes to advise the FTC on each proposed acquisition.
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`As the discovery phase of this litigation proceeds, Meta now asks this Court to compel
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`the FTC to produce these materials, arguing that they contain relevant factual information about
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`the contemporaneous state of market competition that is unavailable anywhere else. For its part,
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`the Commission asserts that these materials are protected by a variety of privileges, most notably
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`the deliberative-process privilege. Meta rejoins that the privilege does not apply and that, in any
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`event, the FTC waived any privilege when it disclosed these materials to the House Judiciary
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`Committee in September 2019. As the Court agrees that the FTC has the better of this argument,
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`it will deny the Motion.
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 2 of 20
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`I.
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`Background
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`As this Court has recounted the factual and procedural background of this case in depth
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`in its prior Opinions, see Fed. Trade Comm’n v. Facebook, Inc., 2022 WL 103308 (D.D.C. Jan.
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`11, 2022); Fed. Trade Comm’n v. Facebook, Inc., 560 F. Supp. 3d 1 (D.D.C. 2021), it will
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`confine this brief background section to the facts surrounding the documents directly at issue in
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`this Motion.
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`On April 9, 2012, Meta — then, Facebook, Inc. — announced an agreement to acquire
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`Instagram. See ECF No. 155 (Def. Motion to Compel) at 4. In conjunction with this acquisition,
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`Defendant filed a pre-merger notification with the FTC as required by the Hart-Scott-Rodino
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`Act, 15 U.S.C. § 18a. Id. The Commission then reviewed this transaction over the next four
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`months to assess whether it posed anticompetitive concerns, taking the rare step of “requir[ing]
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`the submission [by the parties] of additional information or documentary material relevant to the
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`proposed acquisition.” 15 U.S.C. 18a(e)(1)(A). During the course of the agency’s review,
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`attorneys from the FTC’s Bureau of Competition and economists from its Bureau of Economics
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`prepared two “recommendation packages” for the Commission’s review. See ECF No. 160 (Pl.
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`Opp.) at 3. The FTC describes these recommendation packages as including memoranda from
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`BC attorneys and BE economists that “reflect legal advice, contain confidential third-party
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`information, and comprise part of the FTC’s internal deliberation and decision-making.” ECF
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`No. 160-7, Exh. A (Declaration of Holly Vedova), ¶ 9. These packages are often generated as
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`part of the Commission’s decisionmaking process on matters including: “(1) screening mergers
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`to determine whether to seek additional information, (2) authorizing and issuing compulsory
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`process, including civil investigative demands and subpoenas, (3) undertaking enforcement
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`through filing complaints, or (4) declining to take further action.” Id.
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 3 of 20
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`The first of the two recommendation packages relates to the use of compulsory process to
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`secure facts relevant to the potential acquisition. It includes cover memos from the BC Front
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`Office and BC career staff, memos “to the Merger Screening Committee — later provided to the
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`Commission as an attachment to the compulsory process memorandum” — and a draft resolution
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`authorizing the use of compulsory process. See Pl. Opp. at 3–4; ECF No. 160-8 (FTC Priv. Log)
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`at 1 (entries 1a–1e). The second package concerns BC and BE staff recommendations to close
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`the investigation into the acquisition. See Pl. Opp. at 3–5; FTC Priv. Log at 2 (entries 2a, 2b,
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`and 2e). After deliberating on these materials, the Commission voted 5–0 to allow the
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`acquisition to proceed and issued a no-action letter informing Meta that its “investigation has
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`been closed,” with the proviso that the decision “is not to be construed as a determination that a
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`violation may not have occurred.” ECF No. 160-9 (FTC Letter).
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`On February 19, 2014, Meta announced a second acquisition, this time of WhatsApp.
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`Like its previous purchase, this transaction was also subject to Hart-Scott-Rodino Act pre-merger
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`review. See 18 U.S.C. § 18b. This time, however, the FTC’s review was more streamlined, and
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`the Commission did not request the submission of additional information. It instead made a
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`decision based solely on Meta’s HSR filings and interviews with third parties. See Pl. Opp. at 5.
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`In connection with this review, BC staff created only two documents at issue here, both of which
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`were staff notes related to the investigation. See id.; FTC Priv. Log at 4 (entries 3 and 4). Once
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`again, after reviewing the transaction, the FTC chose not to challenge it.
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`Meta requested the documents and memoranda from the FTC that its staff generated
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`while reviewing both the Instagram and WhatsApp acquisitions, arguing that they contain
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`centrally relevant factual information about the state of market competition at the time of these
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`deals. See Def. Mot. at 8. The FTC, however, resisted production, arguing that the materials are
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 4 of 20
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`protected by a variety of privileges, including the deliberative-process, work-product, attorney-
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`client, and investigatory-file privileges. See Pl. Opp. at 1.
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`In now moving to compel, Meta contends that these documents contain segregable and
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`purely factual information relevant to its case that can be disclosed and that, regardless, the FTC
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`waived any applicable privileges when it shared these documents with the House Judiciary
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`Committee. See Def. Mot. at 2–3. To assist in its analysis, the Court ordered Plaintiff to
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`produce in camera redacted and unredacted copies of the disputed materials. See Minute Order
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`of Aug. 9, 2022. Having now reviewed those records, the Court may consider the parties’ legal
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`arguments.
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`II.
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`Legal Standard
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`Federal Rule of Civil Procedure 37 entitles parties to “move for an order compelling an
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`answer [or] production” if, among other things, “a party fails to produce documents . . .
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`requested under Rule 34.” Document requests under Rule 34 “may relate to any matter that may
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`be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2); see Fed. R. Civ. P. 34(a) (“A party
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`may serve on any other party a request within the scope of Rule 26(b) . . . .”). Rule 26(b)(1), in
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`turn, sets the “scope of discovery . . . as follows: Parties may obtain discovery regarding any
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`nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
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`needs of the case.” The main question here is whether material concerning the “matter” that
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`Defendant has requested in discovery is privileged under the deliberative-process, work-product,
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`attorney-client, or investigatory-file privileges. The party seeking to withhold a document —
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`here, the FTC — bears the burden of showing that the privilege applies. See United States v.
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`Legal Servs. for NYC, 249 F.3d 1077, 1081 (D.C. Cir. 2001).
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`III. Analysis
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`The primary disputes between the parties here are whether the deliberative-process
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`privilege protects the documents that the FTC generated in reviewing the Instagram and
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`WhatsApp acquisitions, and, if it does, whether the Commission waived that privilege when it
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`shared these documents with the House Judiciary Committee. The Court looks at these two
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`questions in turn. While the FTC further contends that some of these documents are also
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`protected by other privileges, the Court need not address these because the deliberative-process
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`privilege acts as a complete shield.
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`A. Deliberative-Process Privilege
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`In refusing production here, the FTC invokes deliberative process. The Court first
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`considers Meta’s position that invoking the privilege runs counter to FTC policy. It next
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`addresses whether the privilege is applicable in the circumstances here, and it then examines
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`Meta’s final argument that its showing of manifest need defeats the privilege.
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`1.
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`Availability of Privilege
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`Meta begins by suggesting — albeit halfheartedly — that the deliberative-process
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`privilege is categorically unavailable for the documents at issue here as a matter of FTC policy.
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`See Def. Mot. at 12–13; ECF No. 163 (Def. Reply) at 8. Defendant’s only support for this
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`assertion is a citation to the FTC’s 2016 Open Government Plan, a nonbinding guidance
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`document that states that, in the context of Freedom of Information Act Exemption 5, the “FTC
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`has worked under the presumption that most information protected by the Deliberative Process
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`Privilege . . . should be released if the file has been closed for more than ten years unless staff
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`can articulate a compelling reason for withholding the information.” 2016 Open Government
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`Plan, FED. TRADE COMM’N (Sept. 15, 2016), https://www.ftc.gov/system/files/attachments/open-
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 6 of 20
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`government/final_opengov_plan2016.pdf. Because the closure of the Instagram investigation
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`just celebrated its tenth birthday in August, Meta argues that the documents surrounding that
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`decision are now available for production. This position ignores, however, that the relevant
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`binding FTC regulation provides that the privilege applies for 25 years after the document is
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`created, not the merely ten years announced in the nonbinding guidance. See 16 C.F.R.
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`§ 4.10(a)(3) (exempting certain FTC material from being made public, including “[i]nteragency
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`or intra-agency memoranda or letters that would not routinely be available by law to a private
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`party in litigation with the Commission, provided that the deliberative process privilege shall not
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`apply to records created 25 years or more before the date on which the records are requested”).
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`Because the Commission is in fact claiming protection for these documents under the
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`deliberative-process privilege consistent with these regulations, the timing window remains
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`open.
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`2.
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`Applicability of Privilege
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`This privilege “protects from disclosure documents generated during an agency’s
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`deliberations about a policy, as opposed to documents that embody or explain a policy that the
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`agency adopts.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 783 (2021). It
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`“covers recommendations, draft documents, proposals, suggestions, and other subjective
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`documents which reflect the personal opinions of the writer,” Coastal States Gas Corp. v. Dep’t
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`of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), and “rests on the obvious realization that officials
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`will not communicate candidly among themselves if each remark is a potential item of discovery
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`and front page news.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–
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`9 (2001). If such documents were subject to disclosure, the quality of decisionmaking would
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`deteriorate. Whether the privilege is claimed in the context of FOIA or in the course of civil
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`discovery is irrelevant because the analysis for both is the same. See United States v. Weber
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`Aircraft Corp., 465 U.S. 792, 799 (1984); Judicial Watch, Inc. v. U.S. Dep’t of State, No. 15-
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`687, 2021 WL 3363423, at *5 (D.D.C. Aug. 3, 2021) (noting that “under Exemption 5, an
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`agency may withhold from a FOIA requester any ‘documents[ ] normally privileged in the civil
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`discovery context’”) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)).
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`To qualify under this privilege, a record must be both “predecisional” and “deliberative.”
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`“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the
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`matter,” Sierra Club, Inc., 141 S. Ct. at 786, and remain predecisional even if an agency
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`subsequently makes a final decision on the issue discussed in the record. See Fed. Open Mkt.
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`Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). The primary purpose of the
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`“predecisional” requirement is to differentiate between documents “prepared . . . to assist an
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`agency decisionmaker in arriving at his decision” and those drafted “to support a decision
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`already made.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir.
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`1992) (internal quotation marks and citation omitted). To show that a document is predecisional,
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`the agency need not identify a specific final agency decision; it is sufficient to establish “what
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`deliberative process is involved, and the role played by the documents at issue in the course of
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`that process.” Coastal States Gas Corp., 617 F.2d at 868.
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`Documents, furthermore, “are ‘deliberative’ if they were prepared to help the agency
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`formulate its position,” Sierra Club, Inc., 141 S. Ct. at 786, and thus “reflect[ ] the give-and-take
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`of the consultative process.” Petroleum Info. Corp., 976 F.2d at 1434 (internal citations
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`omitted). “A document that does nothing more than explain an existing policy cannot be
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`considered deliberative.” Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 876 (D.C.
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`Cir. 2010).
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 8 of 20
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`a. Predecisional
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`Neither party appears to dispute that these documents are predecisional. The FTC
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`describes the Instagram recommendation packages (entries 1a–1e, 2a, 2b, and 2e of the FTC
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`Privilege Log) as being “prepared prior to, and provid[ing] information and analysis to inform,
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`the Commission’s decisions in 2012 to authorize compulsory process and close the investigation
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`relating to Instagram.” Vedova Decl., ¶ 17. These documents “communicate[d] [the FTC
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`staff’s] analyses, thoughts, theories, opinions, conclusions, advice, and recommendations made
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`to the Commission.” Id. Similarly, the WhatsApp documents (entries 3 and 4 of the FTC
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`Privilege Log) are notes created by investigators that contain “analysis of facts and the legal
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`issues arising in the review as well as opinions, recommendations, and strategy relating to further
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`investigation.” Id., ¶ 18.
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`Based on these descriptions, which appear to accurately reflect the content observed in
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`the Court’s in camera review, the FTC documents were clearly “generated before the adoption of
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`an agency policy,” Judicial Watch, 847 F.3d at 739, and contain “evaluations” or “analysis . . .
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`prepared for senior-level review and decisionmaking.” Machado Amadis v. U.S. Dep’t of State,
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`971 F.3d 364, 370 (D.C. Cir. 2020).
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`b. Deliberative
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`The parties clash, however, over whether the documents satisfy the deliberative criterion.
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`Meta stresses that the privilege “does not apply at all to purely factual material” and urges that
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`the FTC memoranda are likely to contain “material facts that were found during the
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`investigation,” which must be disclosed. See Def. Mot. at 13. The FTC counters that “any
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`factual material contained in each of the disputed documents are ‘inextricably interwoven’ with
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`staff’s analyses and recommendations.” Pl. Opp. at 9; Vedova Decl., ¶¶ 17, 18. Their release
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`Case 1:20-cv-03590-JEB Document 189 Filed 09/06/22 Page 9 of 20
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`would, consequently, “force the disclosure of the deliberative process” and cause the sorts of
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`harms that the privilege is meant to avoid. See Pl. Opp. at 9. The FTC has the stronger position
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`here.
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`Meta is correct that “[f]actual material that does not reveal the deliberative process is not
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`protected by this exemption.” Morley v. Cent. Intel. Agency, 508 F.3d 1108, 1127 (D.C. Cir.
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`2007) (quoting Paisley v. Cent. Intel. Agency, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in
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`part on other grounds, 724 F.2d 201 (D.C. Cir. 1984)); see also Env’t Prot. Agency v. Mink, 410
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`U.S. 73, 88 (1973) (“[P]urely factual material contained in deliberative memoranda and
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`severable from its context would generally be available for discovery by private parties in
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`litigation with the Government.”). That does not mean, however, that all factual material
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`contained in government memoranda must be automatically disclosed. Rather, the court “must
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`examine the information requested in light of the policies and goals that underlie the deliberative
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`process privilege.” Wolfe v. Dep’t of Health and Hum. Servs., 839 F.2d 768, 774 (D.C. Cir.
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`1988). This is because “privilege serves to protect the deliberative process itself, not merely
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`documents containing deliberative material.” Mapother v. Dep’t of Just., 3 F.3d 1533, 1537
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`(D.C. Cir. 1993).
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`In accordance with these principles, the D.C. Circuit has emphasized that, in some cases,
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`“even material that could be characterized as ‘factual’ would so expose the deliberative process
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`that it must be covered by the privilege.” Wolfe, 839 F.2d at 774. The privilege thus continues
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`to extend to factual material that “is so inextricably intertwined with the deliberative sections of
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`documents that its disclosure would inevitably reveal the government’s deliberations.” In re
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`Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The FTC contends that this is precisely the
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`harm that would occur here. It further insists that any factual portions of its recommendation
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`memoranda and notes are nonsegregable, arguing that “[d]isclosing [FTC] staff’s determination
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`of which facts are ‘material’ is tantamount to disclosing staff’s opinions and recommendations.”
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`Pl. Opp. at 9.
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`Meta responds by pointing to Playboy Enterprises, Inc. v. Department of Justice, 677
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`F.2d 931 (D.C. Cir. 1982), where the court held that the Department of Justice could not
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`withhold a report on the activities of a former FBI informant. While the government had
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`asserted that the entire report “reflect[ed] the choice, weighing and analysis of facts” from over
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`800 volumes of materials, the court noted that “[a]nyone making a report must of necessity select
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`the facts to be mentioned in it” and that “a report does not become a part of the deliberative
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`process merely because it contains only those facts which the person making the report thinks
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`material.” Id. at 935 (internal quotation marks omitted). Indeed, “[i]f this were not so, every
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`factual report would be protected as a part of the deliberative process.” Id.
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`Meta’s reliance on Playboy Enterprises, however, is unpersuasive. The court in that case
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`noted that the documents at issue there were “prepared only to inform the Attorney General of
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`facts which he in turn would make available to members of Congress.” Id. Its disclosure,
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`therefore, would not have exposed the agency’s deliberations to public light. Unlike in Playboy
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`Enterprises, the factual material in this case “was not assembled for an agency actor merely to
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`pass along to outsiders, but rather for purely internal deliberative purposes.” Elec. Priv. Info.
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`Ctr. v. Transp. Sec. Admin., 928 F. Supp. 2d 156, 168 (D.D.C. 2013); see also Montrose Chem.
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`Corp. of Calif. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974) (holding that factual summaries
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`compiled into documents used by administrator were privileged because “[t]o probe the
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`summaries of record evidence would be the same as probing the decision-making itself”). The
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`documents that FTC staff prepared here are, instead, precisely of the nature that the deliberative-
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`process privilege is designed to protect, as they were “intended to facilitate or assist development
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`of the agency’s final position on the relevant issue[s].” Nat’l Sec. Archive v. Cent. Intel.
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`Agency, 752 F.3d 460, 463 (D.C. Cir. 2014).
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`If that were not enough, the Court’s in camera review of the materials confirms the
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`FTC’s proffered explanation that there are not segregable and purely factual materials among the
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`documents that would be appropriate for disclosure. Rather, to the extent that those documents
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`contain factual material, they are “inextricably intertwined” with the deliberative portions of the
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`documents, including predecisional staff analysis and opinions. As such, their release would
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`“harm[] the deliberative processes of the government by chilling the candid and frank
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`communications necessary for effective governmental decision-making.” Elec. Frontier Found.
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`v. U.S. Dep’t of Just., 739 F.3d 1, 12 (D.C. Cir. 2014) (internal quotation marks omitted).
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`3.
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`Challenge to Agency’s Decisionmaking
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`Meta next insists that the deliberative-process privilege does not apply because its
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`equitable defenses (laches, estoppel, and waiver) put the FTC’s intent and decisionmaking
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`process directly at issue. See Def. Mot. at 14–15. That argument, too, goes nowhere.
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`The Court acknowledges that the privilege is “unavailable where ‘the Constitution or a
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`statute makes the nature of governmental officials’ deliberations the issue.’” Landry v. Fed.
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`Deposit Ins. Corp., 204 F.3d 1125, 1136 (D.C. Cir. 2000) (quoting In re Subpoena Duces Tecum
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`Served on the OCC, 145 F.3d 1422 (D.C. Cir.), reh’g granted, 156 F.3d 1279 (D.C. Cir. 1998)).
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`This exception is “limited to those circumstances in which the cause of action is directed at the
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`agency’s subjective motivation.” OCC, 156 F.3d at 1280. The privilege is not waived, for
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`example, when a defendant merely complains of “arbitrary and capricious” action under the
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`Administrative Procedure Act absent some other “showing of bad faith or improper behavior.”
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`Id. at 1279–80. Instead, “archetypal” examples of where the government’s subjective
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`motivations are at issue include “Title VII action[s] or . . . constitutional claim[s] for
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`discrimination.” OCC, 145 F.3d at 1424. In those cases, “Congress create[d] a cause of action
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`that deliberatively exposes government decisionmaking to the light,” defeating the protection of
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`the deliberative-process privilege. Id. at 1424.
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`No such cause of action exists here. Instead, Meta relies on the fact that its defenses
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`pivot on the “unfairness of the government’s conduct” in bringing this action — namely, because
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`the FTC “clear[ed] [these] transactions, inducing reliance over eight-to-ten years at the cost of
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`billions of dollars, then suddenly reemerg[ed] to challenge those acquisitions on grounds that
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`were likely rejected as unfounded when the transactions were reviewed and cleared.” Def. Mot.
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`at 15. This conduct, the argument goes, “put[s] squarely at issue the FTC’s intent and decision-
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`making processes in 2012 and 2014.” Id. To the extent that Meta’s defense hinges on its
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`reliance interests, however, the argument about unfair governmental action would depend not on
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`why the FTC failed to block the mergers in 2012 and 2014, but instead on the fact that the FTC
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`did not challenge those acquisitions at the time they were made. And Meta has not alleged any
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`kind of “affirmative misconduct” associated with its estoppel argument that would call into
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`question the government’s “subjective motivations.” Landry, 204 F.3d at 1136; see also id.
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`(finding that an “ordinary enforcement action in no way implicates the [agency’s] subjective
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`motivations”); Morris Commc’ns, Inc. v. Fed. Commc’ns Comm’n, 566 F.3d 184, 191 (D.C. Cir.
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`2009).
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`Meta relies on Doe 2 v. Esper, No. 17-1597, 2019 WL 4394842 (D.D.C. Sept. 13, 2019),
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`which is also inapposite because that case did involve a cause of action that was directed at the
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`government’s subjective decisionmaking — specifically, a constitutional claim of discrimination
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`where the court weighed whether a policy related to transgender troops was the product of “the
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`considered professional judgment of appropriate military officials” for purposes of deference.
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`Id. at *6. This required the court to inquire into the “decision-making process resulting in the
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`development of the [policy]” and “the process used to develop” the policy, which it could not do
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`without setting aside the deliberative-process privilege. Id. Unlike that discrimination case, no
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`such need exists here to examine the process the FTC used in deciding to forgo action in 2012 or
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`2014.
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`In sum, the Commission is entitled to rely on the deliberative-process privilege in
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`refusing to turn over the subject materials.
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`B. Waiver
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`Retreating to its fallback position, Meta next contends that the privilege’s applicability is
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`irrelevant because the FTC waived it when, in response to a September 2019 request, it shared
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`these same documents with members of the House Judiciary Committee. The Court disagrees.
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`The D.C. Circuit has recognized that “voluntary disclosure of privileged material . . . to
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`unnecessary third parties . . . waives the [deliberative-process] privilege . . . for the document or
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`information specifically released,” although such disclosure does not waive the privilege “for
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`related materials.” In re Sealed Case, 121 F.3d at 741 (internal quotation marks and citations
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`omitted). The Circuit also cautioned that because the privilege “exists to aid the governmental
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`decisionmaking process, a waiver should not be lightly inferred.” Id.
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`Applying the standard for civil-discovery privileges, this Circuit has held in the FOIA
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`context that an agency does not waive the privilege when it transmits to Congress “memoranda
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`and correspondence created as part of the [agency’s] deliberative process.” Rockwell Int’l Corp.
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`v. U.S. Dep’t of Just., 235 F.3d 598, 604 (D.C. Cir. 2001). Documents that were “created
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`specifically to assist Congress” and shared “for the sole purpose of assisting [a] Committee with
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`its deliberations,” however, do not continue to benefit from protection. Id. (comparing Dow
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`Jones & Co. v. Dep’t of Just., 917 F.2d 571, 573–75 (D.C. Cir. 1990)). The documents here
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`obviously fall into the former category because they were “created as part of the [FTC’s]
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`deliberative processes,” Rockwell Int’l Corp., 235 F.3d at 604, and contained only agency staff’s
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`“preliminary agency opinions rather than articulations of a final decision.” Elec. Priv. Info. Ctr.,
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`928 F. Supp. 2d at 165 (quotation marks omitted). As such, they were plainly created to assist
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`with agency, rather than congressional, deliberations.
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`The mere sharing of the Instagram and WhatsApp records with Congress also did not
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`compromise the confidentiality of those materials. “[A] document otherwise covered by the
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`deliberative process privilege does not lose this status merely because it was disclosed to a
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`member of Congress without an explicit warning of its confidential status.” Heggestad v. U.S.
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`Dep’t of Just., 182 F. Supp. 2d 1, 13 (D.D.C. 2000). For instance, in Murphy v. Dep’t of the
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`Army, 613 F.2d 1151 (D.C. Cir. 1979), the Circuit extended the same protection to documents
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`that were disclosed to an individual congressman, even when that disclosure was not explicitly
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`conditioned on confidentiality. Id. at 1156; see also Rockwell Int’l Corp., 235 F.3d at 604
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`(reaffirming the protection extended in Murphy in the context of finding that DOJ did not waive
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`privilege when it “gave . . . documents to [a] Subcommittee only after the Subcommittee
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`expressly agreed not to make them public”).
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`The FTC’s sharing of its Instagram and WhatsApp documents with the House Judiciary
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`Committee occurred under similar circumstances. In providing the materials to Congress, the
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`Commission was responding to a formal request by the Chairman and Ranking Member acting in
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`their official capacities. See ECF No. 160-2 (House Comm. Letter). In its response to the
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`Committee, moreover, the Commission included a “request[] that the Committee and
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`Subcommittee maintain [the] confidentiality” of the nonpublic and privileged documents,
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`including “predecisional, deliberative materials” it was transmitting. See ECF No. 160-3 (FTC
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`Letter); ECF No. 160-1 (Declaration of Elizabeth Tucci), ¶¶ 13–14, 17–18. The final House
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`report also “does not reproduce or reference FTC staff’s internal recommendations or analysis,”
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`Pl. Opp. at 20, and instead limits its references to FTC documents to a discussion about the
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`extent to which antitrust enforcement considers anticompetitive effects of acquisitions generally.
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`See Majority Staff of H. Subcomm. on Antitrust, Com. & Admin. Law of the Comm. on the
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`Judiciary, Investigation of Competition in Digital Markets: Majority Staff Report and
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`Recommendations, 117th Cong. 332–33, 339 (July 2022). Particularly when transmitted to the
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`congressional committee of competent jurisdiction for overseeing antitrust enforcement and with
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`requests for confidentiality, such a disclosure is “not inconsistent with maintaining secrecy
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`against opponents[] [and] should be allowed without waiver of the privilege.” United States v.
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`Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980) (discussing waiver in context of
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`attorney-client and work-product privileges).
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`In the context of its argument that Plaintiff also waived the work-product privilege, Meta
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`contends that the FTC and HJC were actually in a “potentially adversarial posture” because HJC
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`was “investigating [the FTC], and potentially criticizing its actions.” Def. Reply at 5 (citing In re
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`Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984)); see also Am. Tel. & Tel. Co.,
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`642 F.2d at 1299 (holding that waiver of work-product privilege depends in part on whether the
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`disclosure is consistent with “protect[ing] information against opposing parties”). The Court
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`need not analyze this argument, as it is inapplicable to waiver in the context of the deliberative-
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`process privilege. The Court nonetheless believes that this issue is worth addressing in the
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`context of the understanding that the FTC and HJC had of the confidentiality of the materials that
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`the Commission disclosed.
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`In their request letter, the Chairman and Ranking Member identify the focus of their
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`investigation to include three components: “(1) competition problems in digital markets; (2)
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`whether dominant firms are engaging in anti-competitive conduct online; and (3) whether
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`existing antitrust laws, competition policies, and current enforcement levels are adequate to
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`address these issues.” House Comm. Letter at 1. The letter goes on to acknowledge that “the
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`requested materials are likely to contain sensitive information regarding the FTC’s internal
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`decision-making processes, FTC attorney work product, and third party businesses,” but it
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`explains that this information was necessary for the Committee to “assess whether existing
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`antitrust laws are adequate for tackling current competition problems and to identify potential
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`reasons for under-enforcement.” Id. at 2. The request for information, then, appears to suggest
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`that the targets of the investigation were participants in digital markets, like Meta, as opposed to
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`the FTC itself, and that the Committee and the Commission understood the need to maintain the
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`confidentiality of investigatory materials.
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`Meta also insists — with boldface and italics for emphasis — that this Court should not
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`give much credence at all to Rockwell Int’l Corp. and Murphy because these cases were decided
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`in the FOIA context, and FOIA exemptions