Case 1:20-cv-03590-JEB Document 205 Filed 10/27/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No. 1:20-cv-03590-JEB
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
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`META PLATFORMS, INC.,
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`Defendant.
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`META PLATFORMS, INC.’S MOTION TO COMPEL SNAP, INC. TO PRODUCE
`DOCUMENTS
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`Case 1:20-cv-03590-JEB Document 205 Filed 10/27/22 Page 2 of 5
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`Meta seeks necessary discovery from the one company the FTC alleges is a significant
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`competitor of Meta (in reality, there are many). While “recogniz[ing] that it will need to provide
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`some additional discovery,” Joint Stipulation at 60, No. 2:22-mc-00146, ECF No. 1-1 (C.D. Cal.
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`Aug. 3, 2022),1 Snap has stonewalled and delayed. Snap initially refused to provide any
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`discovery and then issued a take-it-or-leave-it offer to produce only a handful of documents,
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`subject to numerous inappropriate conditions, including revising this Court’s protective order
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`and Meta paying fees. The offer did not include the vast majority of documents Meta needs to
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`defend itself, and included no customary custodial searches for relevant emails and documents.
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`No “extraordinary circumstances” require quashing the entire subpoena and starting at
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`square one, as Snap demands. Flanagan v. Wyndham Int’l, Inc., 231 F.R.D. 98, 102 (D.D.C.
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`2005) (collecting cases). Meta served the subpoena more than eight months ago. To reduce any
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`burden, Meta substantially narrowed it and put the remaining requests into six categories. The
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`Court should order Snap to produce the highly relevant documents Meta seeks.
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`1. Competition (RFPs 4, 7, 9, 18, 19, 56, 25, 26, 31, 1, 60, 61) – Meta seeks documents
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`about Snap’s views on competition and activities users perform on Snapchat relevant to the
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`FTC’s alleged Personal Social Networking Services (“PSNS”) criteria. Meta also seeks
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`documents about advertising competition and pricing relevant to the FTC’s allegations that Meta
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`suppressed advertising competition. Documents about competition are relevant to Meta’s
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`defense that there is no “industry or public recognition” of the PSNS market. Brown Shoe Co. v.
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`United States, 370 U.S. 294, 325 (1962). Courts “regularly take account of industry participants’
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`perspectives on who their competitors are in order to shed light on the interchangeability of the
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`products they offer.” Delco LLC v. Giant of Md., LLC, 2007 WL 3307018, at *17 (D.N.J.
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`1 Before transfer, the parties filed a Joint Stipulation pursuant to C.D. Cal. local rules. Id.
`That filing further details Meta’s requests and their relevance and addresses Snap’s arguments.
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`Case 1:20-cv-03590-JEB Document 205 Filed 10/27/22 Page 3 of 5
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`Nov. 8, 2007); United States v. AT&T Inc., 2011 WL 5347178, at *3-4, *7 (D.D.C. Nov. 6,
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`2011). Snap’s documents on who it competes with are critical to dispute the FTC’s claim that
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`Snap is Meta’s only significant competitor. If these documents demonstrate Snap competes with
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`not just Meta, but also, for example, TikTok, the FTC’s market definition collapses.
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`Notwithstanding the clear relevance, Snap refuses to conduct any custodial searches for
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`documents in response to RFPs 4 and 7 or produce any documents in response to most of these
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`requests. Non-parties in antitrust cases routinely conduct custodial searches. See, e.g., United
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`States v. Google LLC, No. 1:20-cv-03010-APM, ECF No. 199-1 at 15 (D.D.C. Aug. 31, 2021)
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`(Microsoft searching 45 custodians using 44 search strings); id. ECF No. 177 at 3-4, 7 (Aug. 17,
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`2021) (Apple searching 19 custodians using 54 search strings). And courts routinely compel
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`such searches. See, e.g., V5 Techs. v. Switch, Ltd., 332 F.R.D. 356, 367 (D. Nev. 2019) (non-
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`party in antitrust case compelled to conduct custodial searches); In re EpiPen Mktg., Sales
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`Practice & Antitrust Litig., 2018 WL 3240981, at *3 (D. Kan. July 3, 2018) (same); Tera II, LLC
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`v. Rice Drilling D, LLC, 2022 WL 1114943, at *6 (S.D. Ohio Apr. 14, 2022) (same). Other non-
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`parties are conducting such searches across custodian groups after negotiating search terms. The
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`Court should order Snap to: (1) conduct a reasonable search of relevant groups of custodians for
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`RFPs 4 and 7; and (2) produce documents reasonably responsive to the other requests.
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`2. Acquisitions (RFPs 20, 36, 38-40) – Meta seeks documents about Meta’s challenged
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`acquisitions and offer to buy Snap. See Am. Compl. ¶ 64. Snap’s views of the acquisitions are
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`relevant to whether they harmed competition, as alleged. Snap refuses to produce documents for
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`most of the requests, offering only a limited set of board documents on Meta’s attempts to buy
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`Snap. Snap refuses to conduct custodial searches for emails and documents. The Court should
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`order Snap to conduct a reasonable search of relevant custodians for responsive documents.
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`Case 1:20-cv-03590-JEB Document 205 Filed 10/27/22 Page 4 of 5
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`3. Product Quality and Pricing (RFPs 12-14, 21-23, 43, 46, 47, 41, 58, 2) – Meta seeks
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`documents regarding Snap’s privacy, data-collection, and ad-load practices; pricing; and decision
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`to add certain features to Snapchat. These requests are relevant to the FTC’s claims that Meta is
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`a monopolist (and that its conduct has caused anticompetitive effects) because Meta (supposedly)
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`profitably reduced its “product quality” in these areas. Meta seeks to compare its practices to
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`competitors to test the FTC’s claim. Snap has offered nothing responsive to these requests other
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`than its public privacy policies and documents showing how they changed over time. The Court
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`should order Snap to: (1) produce documents reasonably responsive to these requests; and (2)
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`conduct a reasonable search of relevant custodians for documents responsive to RFPs 12, 14, 21.
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`4. Data (RFPs 6, 8, 10, 15, 16) – Meta requests data relating to Snap’s user numbers,
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`including how users spend time on Snap (and how much). This is relevant to assess Meta’s
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`relative share of the alleged market using the FTC’s methodology and the contours of the FTC’s
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`market. Snap offered to produce some data, but the Court should order Snap to: (1) produce data
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`reasonably responsive to the requests; and (2) update the data it provided the FTC to the present.
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`5. Infrastructure (RFPs 22(c), 48, 49) – Meta seeks documents about Snap’s
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`infrastructure, to help show how Meta helped improve Instagram’s and WhatsApp’s
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`infrastructure compared to what they could have accomplished as stand-alone companies. Snap
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`conditionally offered to produce high-level presentations regarding one aspect of this request.
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`The Court should order Snap to produce documents reasonably responsive to these requests.
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`6. Project Voldemort (RFP 53) – Meta seeks documents related to “Project Voldemort”
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`– Snap’s dossier of alleged anticompetitive conduct by Meta. Snap conditionally offered to
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`produce some documents, but refuses to discuss search terms or custodians. The Court should
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`order Snap to conduct a reasonable search of relevant custodians for responsive documents.
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`Case 1:20-cv-03590-JEB Document 205 Filed 10/27/22 Page 5 of 5
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`October 27, 2022
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`Respectfully submitted,
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`/s/ Mark C. Hansen
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`Mark C. Hansen (D.C. Bar No. 425930)
`Kevin B. Huff (D.C. Bar No. 462043)
`Ana Nikolic Paul (D.C. Bar No. 1531904)
`Kevin D. Horvitz (D.C. Bar No. 1521032)
`KELLOGG, HANSEN, TODD,
` FIGEL & FREDERICK, P.L.L.C.
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`Tel: (202) 326-7900
`mhansen@kellogghansen.com
`khuff@kellogghansen.com
`apaul@kellogghansen.com
`khorvitz@kellogghansen.com
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`Counsel for Defendant Meta Platforms, Inc.
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`-4-
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