Meta Platforms, Inc. v. BrandTotal Ltd.

Background

Meta Platforms, Inc., referred to as “Facebook” in the opinion, withheld three documents concerning its investigation of certain BrandTotal products. The documents were a collaboratively edited document containing counsel’s comments, a task containing communications by Meta employees including counsel, and another task prepared at counsel’s direction that did not contain counsel’s communications.

BrandTotal Ltd. and Unimania, Inc., collectively referred to as BrandTotal, challenged Meta’s claims of attorney-client privilege and work-product protection. BrandTotal also argued that a prior stipulation and order required Meta to produce the documents. That stipulation described one contested document as an investigatory document called the “UpVoice task.” The court found that the stipulation required production of only one document and that Meta had satisfied that obligation by producing a task document related to its investigation of UpVoice.

Legal standards

The attorney-client privilege protects confidential attorney-client communications made to provide legal advice. The work-product doctrine protects documents created because litigation was anticipated when the documents would not otherwise have been created in substantially similar form. Under Federal Rule of Civil Procedure 26(b)(3), protected work product may be discoverable when the requesting party shows substantial need, although the court must protect attorneys’ mental impressions, conclusions, opinions, and legal theories.

Court’s analysis

The court observed that the three documents contained collections of comments by multiple people over time. Treating those collections as single protected documents could allow broader withholding than would be permitted for serialized communications such as emails or text messages.

The court also noted that Meta routinely investigated possible violations of its terms of use and documented those investigations, including when it was considering technological measures rather than specifically anticipating litigation. This created doubt that all of the communications were primarily intended to obtain legal advice or that they would not have been created in substantially similar form without the litigation.

The court treated communications merely describing the factual investigation as work product rather than attorney-client privileged communications, assuming for purposes of the ruling that they qualified for work-product protection. Because Meta’s reasons for blocking BrandTotal’s access were central to BrandTotal’s defenses and counterclaims, the court found that BrandTotal had shown substantial need for the contemporaneous factual investigation communications.

Disposition

The court ordered that, for each of the three documents, Meta may redact specific communications that request or provide legal advice. Meta was required to produce communications conveying factual information about its investigation, subject to redaction of communications revealing the mental impressions, conclusions, opinions, or legal theories of an attorney or other Meta employee. The court ordered Meta to complete production by January 14, 2022, with any later production disputes to be handled under the court’s standing order.