Forrest v. Meta Platforms, Inc.

Background

Andrew Forrest sued Facebook, Inc., which the opinion identifies as now Meta Platforms, Inc. Forrest alleges that Facebook was responsible for promoting and distributing a cryptocurrency scam using his name and likeness to Facebook users. The case was removed to federal court after earlier state-court pleadings. Facebook moved to dismiss the second amended complaint, and Forrest moved for permission to file a third amended complaint; those motions were scheduled for hearing before the presiding judge.

Separately, in January 2022, Forrest began a private criminal prosecution against Facebook in Australia. Facebook said that proceeding was based on the same allegations as the civil case, and the parties did not dispute that Forrest serves as the private prosecutor there.

Facebook served its initial disclosures under Federal Rule of Civil Procedure 26(a) on October 3, 2022. It listed documents and described six categories of information, but it did not identify any witnesses by name other than Forrest. Instead, it referred generally to unknown Facebook employees or contractors. Neither party had served discovery requests.

Legal standard

Rule 26(a)(1)(A) requires parties to identify witnesses and documents they may use to support their claims or defenses, along with certain other information. Parties must make a reasonable inquiry before providing the disclosures, and they have a continuing duty to supplement them. Rule 26(c) allows a court, for good cause, to issue a protective order limiting discovery or protecting a party from specified burdens or harms.

Court’s analysis

The court concluded that Facebook’s witness disclosures did not comply with Rule 26(a). Facebook intended to rely on witnesses in the six identified subject areas but had not identified those witnesses or supplemented its disclosures during the following three months. The court also found that Forrest’s alleged lack of diligence in seeking discovery did not excuse Facebook’s own disclosure obligations.

Facebook argued that disclosure could allow Forrest to use civil-case information to strengthen the Australian criminal prosecution and expose Facebook’s strategy or legal theories. The court was not persuaded. It noted that Facebook had known about the Australian proceeding for nearly a year, had not filed a motion to stay the civil case, and had not explained how identifying relevant witnesses would reveal its strategy, particularly because it had already described the information categories involved. The court also noted that Forrest was not seeking witness depositions at that time.

Ruling

The court required Facebook to supplement its initial disclosures by January 11, 2023, identifying every witness it might use to support its claims or defenses. The court separately ordered that Forrest and his counsel must not use or disclose that information for any purpose connected with Forrest’s private prosecution in Australia unless Facebook or the court gives permission. The opinion stated that Facebook might have grounds for seeking a stay, but no stay motion had been filed.