Forrest v. Meta Platforms, Inc.

Background

Andrew Forrest and Meta Platforms, Inc. asked the court to resolve a discovery dispute about Forrest’s privilege claims. The dispute concerned documents Forrest withheld from disclosure in private criminal prosecution proceedings he initiated against Meta in Australia in January 2022.

Discovery in this case was limited to a first phase addressing facts bearing on Meta’s defense under Section 230. The court had previously directed that any claim of privilege or other protection had to be made and supported under Federal Rule of Civil Procedure 26(b)(5). The court also noted that attorney-client privilege and work-product protection can be waived when information is publicly disclosed or placed at issue.

The parties’ dispute

Forrest had provided Meta with documents he disclosed in the Australian proceedings. He argued that nothing in the court’s earlier orders required him to reconstruct the materials collected for review and production in Australia. He also relied on the fact that Australian law did not require a privilege log or similar identification of withheld documents.

The court rejected that position. Forrest had to identify and log responsive documents within his possession, custody, or control that were within the scope of the first phase of discovery but had not been produced because of attorney-client privilege, work-product protection, or another applicable protection. The court said Forrest could not simply rely on determinations made by Australian counsel under Australian law in a different proceeding.

The court also concluded that Section 9 of the electronic-discovery order did not resolve the dispute. Its footnote concerning reuse of privilege logs from other cases or investigations did not apply because Forrest had not reproduced and relied on such a log in this case.

Ruling

Judge Virginia K. DeMarchi held that it was unclear whether Forrest had satisfied his obligations under Rule 26(b)(5) and the court’s August 13, 2025 order. The court ordered Forrest to provide a privilege log complying with Rule 26(b)(5) and the electronic-discovery order for all privileged or protected documents within the scope of the first discovery phase.

Assuming Forrest had not already fully complied, the court ordered him to provide Meta an amended privilege log no later than October 24, 2025. The order resolved the discovery dispute without oral argument.