Klein v. Meta Platforms, Inc.

Background

The plaintiffs moved to compel Meta Platforms, Inc. to produce unredacted versions of several email communications that Meta had clawed back from discovery under the parties’ stipulated order concerning inadvertent disclosure of privileged material. The dispute involved nine emails or portions of emails, labeled R1 through R9, from an April 8–9, 2018 exchange about Meta’s response to a TechCrunch journalist’s questions about its application-programming-interface and data-access policies.

Meta described the redacted portions as emails seeking or providing legal advice about those policies. The email exchange included Meta’s in-house lawyers and Rebecca Hahn, a partner at the outside public-relations agency OutCast. Meta had produced the exchange to the Federal Trade Commission in a roughly 12-million-page production in 2019. After the FTC alerted Meta in August 2021 that the exchange might contain privileged material, Meta clawed back the communications from the FTC and sent the plaintiffs a clawback notice for the same material.

Attorney-client privilege

The court applied federal privilege law. Attorney-client privilege protects confidential communications made to obtain or provide legal advice, and the party asserting the privilege bears the burden of showing that it applies. For communications serving both legal and nonlegal purposes, the court applied the primary-purpose test: the communication is protected if its main purpose was obtaining or providing legal advice.

After privately reviewing the unredacted communications, the court concluded that the disputed portions were primarily for obtaining or providing legal advice about Meta’s response to the press inquiry. The court therefore rejected the plaintiffs’ argument that the communications were only public-relations or business communications.

The plaintiffs also argued that Hahn’s participation destroyed confidentiality because she was not a Meta employee. The court explained that a nonemployee may be treated as the functional equivalent of a corporate employee when the person has information counsel needs to provide legal advice or is expected to carry out that advice. Although the court found Hahn’s role in this exchange relatively weak and apparently passive, it concluded that her long-term, employee-like responsibilities for Meta and her communications work concerning the relevant platform issues supported treating her as the functional equivalent of an employee for this exchange. The court emphasized that this conclusion did not mean Hahn was Meta’s functional employee in all circumstances. It rejected this challenge as well.

Disclosure to the FTC and disposition

The plaintiffs argued that Meta waived privilege by producing the emails to the FTC. The court held that the parties’ clawback order governed documents produced in this case, not whether Meta’s earlier production in the FTC proceeding caused a waiver. The court then considered the waiver question under the rule governing inadvertent disclosures.

The court inferred that Meta had taken reasonable steps to prevent disclosure based on the size of the production and the extensive privilege log, even though Meta had provided little detail about its review process. The court rejected the plaintiffs’ challenge based on the 2019 FTC production.

However, Meta later agreed that the FTC could include part of communication R5 in the FTC’s Substituted Amended Complaint. The court held that this was a voluntary disclosure and that Meta could not disclose the communication for one purpose while selectively asserting privilege over the same portion in this case. The court ordered Meta to produce to the plaintiffs the portion of R5 that had been included in the FTC complaint. It rejected the plaintiffs’ remaining challenges to the August 20, 2021 clawback notice.