Case 1:20-cv-03590-JEB Document 204 Filed 10/27/22 Page 1 of 6
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`IN THE 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.
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`Case No. 1:20-cv-03590-JEB
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`META PLATFORMS, INC.,
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`Defendant,
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`PLEADING OF NON-PARTY SNAP
`IN OPPOSITION TO META’S MOTION TO COMPEL
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`Case 1:20-cv-03590-JEB Document 204 Filed 10/27/22 Page 2 of 6
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`Meta is moving to compel non-party Snap to produce documents responsive to 46
`numbered requests, including more than 150 subparts. Many of the requested documents are
`among Snap’s most competitively sensitive documents, with only marginal potential relevance to
`this case. Other demands are massively overbroad and designed to sweep in plainly irrelevant, yet
`highly sensitive, material. The individual and cumulative burden of each request—including not
`only demands from the subpoena in this case but also demands that Meta presses from a subpoena
`ostensibly served in the companion Klein case, that will also be used for this case—is enormous
`and inappropriate for a non-party in Snap’s position to bear.
`Meta sorted its requests into six “categories” to make them appear more palatable and avoid
`any substantial narrowing. These categories are: (1) competitive landscape; (2) challenged
`conduct; (3) product quality and pricing; (4) metrics and data; (5) cloud infrastructure; and
`(6) Project Voldemort. Snap made a reasonable offer to produce documents to cover the six topics.
`Snap also agreed to search for documents responsive to priority categories identified by the FTC,
`and has been producing them to the FTC and Meta. This should have satisfied Meta, or at least
`caused Meta to narrow its demands. It did neither. Instead, Meta reflexively insists on wide swaths
`of custodial searches without showing a substantial need for such an invasive and burdensome
`method of information-gathering, and presses demands on orthogonal matters based on speculation
`that they might uncover some shred of additional, marginally relevant information. Meta has also
`been inflexible and rejected Snap’s request for supplemental protections, which are necessary for
`one of Meta’s closest competitors. The Court should (1) deny Meta’s motion to compel as unduly
`burdensome and overly broad; (2) order that Snap may produce highly sensitive documents with
`an “outside counsel eyes’ only” designation; and (3) order Meta to pay Snap’s compliance costs.
`1. Undue burden and overbreadth: Meta served two subpoenas on Snap, in this action and
`Klein. Meta seeks production in each action of all documents produced by Snap in the other,
`effectively combining the two subpoenas. If Meta were truly seeking evidence on just the six topics
`described in their “categories,” the parties could likely negotiate a search protocol that gets Meta
`the information it actually needs without unduly burdening a non-party. Custodial searches are not
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`Case 1:20-cv-03590-JEB Document 204 Filed 10/27/22 Page 3 of 6
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`appropriate or necessary for any of Meta’s categories, which can all be adequately covered with
`targeted searches. See Appendix A (Snap’s offer to Meta); Appendix B (FTC’s priority requests).
`Meta wrongly asserts that custodial searches are necessary to understand Snap’s views of the
`competitive landscape; Snap’s views, however, are reflected in the centrally stored materials Snap
`is already producing and there is no reason to doubt that Snap’s true views are reflected in its
`internal documents.
`Meta’s actual demands—far broader than the six “categories” would suggest—sweep well
`beyond the core material for which Meta could “show[] a substantial need,” FRCP 45(d)(3)(C)(i),
`and far exceed what a non-party should be required to bear. For instance:
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`RFP 36 (ostensibly in category 2, challenged conduct) seeks “[a]ll Documents . . . relating
`to actual and potential acquisitions of or substantial investments in the Company or its Products.”
`Meta wants to rifle through Snap’s investment-related documents in the hopes of finding
`something to suggest that Snap has not suffered as a result of Meta’s conduct. Thus, in addition to
`searching for documents discussing Meta, its conduct, its direct impact on Snap, the market, etc.,
`Meta insists that Snap search the files of additional custodians for minimal and speculative benefit.
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`RFP 2 seeks “[d]ocuments sufficient to identify . . . any changes to each Product . . . You
`have made at least partly in response to competition or potential competition with Meta . . . [or]
`any company other than Meta.” Snap has dozens of user products and several advertiser products.
`Non-party Snap should not have to identify all changes to every product over a decade-plus period
`and assess why each change was made, given it has offered to produce documents that directly
`show how Snap has analyzed and attempted to meet competition over the years.
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`RFP 60 requests “[a]ll Documents provided to federal, state, or foreign governmental
`entities regarding competition issues related to products and services provided by” 14 companies.
`This obvious fishing expedition would require Snap to investigate—and reveal to Meta—its own
`regulatory activities for more than a decade, as well as inquiries into other non-parties. The harm
`of production is enormous (to Snap and enforcement), while the benefit is minuscule. To the extent
`Snap views these companies as competitors, they will show up in Snap’s analyses of competition.
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`●
`Regarding data, Snap’s data experts provided sworn declarations explaining that pulling
`the incredibly granular data requested by Meta, sliced in myriad ways, would take months if even
`possible. The ordinary course metrics offered by Snap should suffice.
`2. Confidentiality: Meta demands that Snap produce its most sensitive documents,
`including on competition, product plans, efforts to attract users, capital raising, pricing methods,
`customers, M&A activity, and technical capabilities. Even if Meta could prove its outside counsel
`has a substantial need for such information (which is dubious), it cannot prove its in-house counsel
`does. Meta’s demands in a case alleging anti-competitive conduct are particularly concerning.
`Snap should be permitted to produce its most sensitive documents to only Meta’s outside
`counsel. Snap is specially situated with respect to in-house access. Snap is the only company that
`Meta and the FTC agree competes with Meta. Meta has targeted Snap for copying and surveillance.
`Meta obtained Snap’s usage data covertly through a spyware app. Meta’s CEO threatened to copy
`Snap’s products unless Snap let Meta buy it. Meta then copied Snapchat’s features. If these reasons
`can support discovery of Snap’s most sensitive information, they should also support additional
`protection of such information. And the protective order allows Snap to seek further protections.
`Snap’s need for protection is exacerbated by Meta’s unreasonable requests.
`Moreover, Meta’s designated in-house counsel interact with regulators, lobby, and decide
`to investigate or bring lawsuits. Meta would obtain an unfair and improper advantage by gaining
`insight into Snap’s efforts, plans, and vulnerabilities. If the Court is skeptical, Snap requests the
`opportunity to provide examples of “outside counsel eyes’ only” documents for in camera review.
`3. Cost-shifting: The Court should order Meta to pay Snap’s compliance costs and
`attorneys’ fees. Under Rule 45, the Court “must protect a person who is neither a party nor a party’s
`officer from significant expense resulting from compliance” and may “ensure[] that the
`subpoenaed person will be reasonably compensated.” Recent financial struggles resulted in Snap
`reducing its workforce by 20%, and Meta’s invasive demands impose significant expense. Far
`from “premature,” as Meta suggests, “fix[ing] the costs in advance of production” will give Meta
`an incentive to act reasonably during negotiations. See FRCP 45, 1991 Amendment Notes.
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`Case 1:20-cv-03590-JEB Document 204 Filed 10/27/22 Page 5 of 6
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`October 27, 2022
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` Respectfully submitted,
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`WILSON SONSINI GOODRICH & ROSATI, P.C.
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`/s/ Justina K. Sessions
`Justina K. Sessions, California Bar No. 270914
`(admitted per FRCP 45(f))
`Email: jsessions@wsgr.com
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, California 94105
`Telephone: (415) 947-2197
`Facsimile: (415) 947-2099
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`Counsel for Non-party Snap Inc.
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`Case 1:20-cv-03590-JEB Document 204 Filed 10/27/22 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 27th day of October 2022, I caused the foregoing document to
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`be electronically transmitted to the Clerk’s Office using the CM/ECF System.
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`/s/ Justina K. Sessions
`Justina K. Sessions
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