Forrest v. Meta Platforms, Inc.

Background

On January 2, 2023, Magistrate Judge DeMarchi issued two discovery orders. One required Facebook, Inc. to supplement its initial disclosures by identifying witnesses it might use to support its claims or defenses. The other required Facebook and Andrew Forrest to jointly file a proposed protective order consistent with the magistrate judge’s directions.

Facebook moved to stay both orders pending the district court’s review of Facebook’s objections. The opinion states that Facebook had changed its name to Meta Platforms, Inc., but the court referred to the defendant as Facebook. Forrest did not timely oppose the motion.

Legal standard

The court evaluated the request under the standard used for a stay pending appeal. It considered four factors: the applicant’s likelihood of success, possible irreparable harm without a stay, harm to other interested parties, and the public interest. Ninth Circuit courts use a flexible balancing approach to these factors.

Initial disclosure order

The court found serious questions concerning Facebook’s objections to the initial disclosure order. In particular, the court identified questions about how Forrest’s dual role as the civil plaintiff and the prosecutor in a parallel criminal proceeding in Australia should be addressed, including the burden placed on Facebook.

The court also found that the balance of hardships strongly favored Facebook. Without a stay, Facebook’s rights as a criminal defendant in Australia could be undermined if Forrest received information that Australian criminal law did not allow him to have. The court concluded that a stay would cause Forrest little harm because it would, at most, slightly delay his receipt of supplemental disclosures. It also found that requiring Facebook to provide the disclosures could cause irreparable injury because there would be no way to undo Forrest’s learning the identities of Facebook’s witnesses. The court determined that the public interest favored protecting the integrity of the criminal case.

The court therefore granted the motion for a stay pending review as to the initial disclosure order and stayed that order while it reviewed Facebook’s objections.

Protective-order requirement

The court denied the request to stay the protective-order requirement. It reasoned that a protective order is a safeguard for materials produced in discovery, not discovery itself, and does not by itself provide substantive information that could prejudice Facebook. Because Facebook had not identified any immediate discovery obligation or other discovery served beyond the stayed supplemental disclosures, the court found no irreparable harm from allowing the protective-order process to proceed during review.

Disposition

The court granted in part and denied in part Facebook’s administrative motion for a stay pending review. The motion was granted as to the initial disclosure order, which was stayed pending review of Facebook’s objections, and denied as to the protective-order order.