Meta Platforms, Inc. v. BrandTotal Ltd.

Background

Facebook asked the court to compel BrandTotal to conduct an exhaustive search for and produce attorney-client communications that BrandTotal’s chief executive, Alon Leibovich, discussed during his January 14, 2021 deposition. Leibovich testified that he had received and relied on legal advice about BrandTotal’s compliance with Facebook’s terms of service. He also described some of that advice, including that BrandTotal’s Israeli law firm had advised that BrandTotal complied with the terms based on users’ consent.

BrandTotal’s counsel asserted attorney-client privilege during the deposition, but counsel directed Leibovich to answer questions that disclosed the substance and details of the legal advice. Facebook argued that this testimony, along with statements in Leibovich’s declarations supporting a temporary restraining order, waived the privilege. BrandTotal stated that it had offered to produce one email it located.

Discovery ruling

The court applied Federal Rule of Evidence 502. Under that rule, disclosure of an attorney-client communication waives protection for an undisclosed communication on the same subject when the disclosure was intentional and fairness requires considering the communications together.

The court held that all three conditions were met for the communications Facebook sought. The disclosure was intentional because BrandTotal’s counsel instructed Leibovich to answer despite the privilege objection. The requested communications concerned the same subject—the legal advice about whether BrandTotal’s data collection complied with Facebook’s terms of service. The court also found it unfair for BrandTotal and Leibovich to disclose only part of the advice during the temporary-restraining-order proceeding and deposition.

The court understood the testimony and Facebook’s request to concern legal advice received before the lawsuit began. It did not require disclosure of legal advice BrandTotal received after Facebook filed the action because Facebook had not shown that fairness required that disclosure. BrandTotal was ordered to conduct an exhaustive search and produce, no later than March 8, 2021, all communications predating October 1, 20201, concerning whether BrandTotal complied with Facebook’s terms of service, including communications between counsel and BrandTotal. The order states the year as “20201.”

Motion to file under seal

Facebook also sought to seal portions of the joint discovery letter and supporting documents based on BrandTotal’s assertion of privilege and concerns about confidential business information. Because the discovery dispute was only tangentially related to the case’s merits, the court required the parties to show good cause for sealing.

The court denied the motion to seal to the extent it relied on attorney-client privilege concerning BrandTotal’s compliance with Facebook’s terms of service. It granted the motion to seal to the extent it relied on other confidentiality concerns. Facebook was ordered to file publicly the entire joint letter brief and a version of Exhibit D, Leibovich’s deposition transcript, with only pages 65, 66, 122, and 123 redacted, no later than March 1, 2021. Those pages of Exhibit D and all of Exhibit B were to remain under seal.