Preview
Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
COMMONWEALTH OF MASSACHUSETTS
19
SUFFOLK COUNTY SUPERIOR COURT
BUSINESS LITIGATION SECTION
COMMONWEALTH OF MASSACHUSETTS
Plaintiff,
Vv.
CIVIL ACTION NO.
META PLATFORMS, INC. and 2384-CV-02397-BLS1
INSTAGRAM, LLC
Defendant,
JOINT STATUS REPORT FOR PROTECTIVE ORDER HEARING
Now come the parties and file the following joint status report for the proposed protective
order hearing scheduled for February 15, 2024. The parties have extensively met and conferred to
discuss terms of a protective order, exchanged redlined drafts and proposals, and reached agreed-
upon language and terms in all areas except for one. The outstanding dispute concerns the
provisions regarding disclosure of “highly confidential” material to expert witnesses or
undisclosed consultants. Below, the parties each outline their proposed language and the bases for
their positions. Attached hereto as Exhibit A is the Commonwealth’s proposed protective order,
and as Exhibit B is the Defendants’ proposed protective order. Exhibit C is a redline comparison
highlighting the differences between the parties’ proposed orders, at §{j 2 and 36.
THE COMMONWEALTH’S POSITION
The Commonwealth’s proposal (Exhibit A, {§ 2 and 36) sufficiently addresses
Defendants’ competitor-based concerns related to improper disclosure of its “Highly Confidential”
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Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
material while protecting the parties’ entitlement to not disclose non-testifying consultants and
experts in accordance with Mass. R. Civ. P. 26(b)(4)(A), or from prematurely disclosing testifying
experts. Specifically, in order to prevent competitive harm, the Commonwealth’s provision
requires that, prior to disclosure of “Highly Confidential” material to an undisclosed consultant or
retained expert, a party obtains both a written attestation that the individual is not an employee,
nor anticipated to become an employee! of an “App-Based Competitor”? of Defendants, as well
as an executed “Acknowledgment and Agreement to Be Bound” by the terms of the protective
order. This same expert disclosure provision was previously adopted by this Court to address
similar competitive concerns in the protective order entered in Healey v. Uber Technologies, Inc.
and Lyft Inc., Suffolk Superior Court, Civ. Action No. 2084CV01519-BLS1 (“Uber/Lyft”
litigation”). Exhibit A, § 8. Additionally, the agreed upon language in the protective order
provides Defendants may seek recourse for any unauthorized disclosure. See Exhibit A, Section
X,9 43.
In contrast, Defendants’ proposed provision unilaterally requires that whenever the
Commonwealth seeks to show any of Meta’s “Highly Confidential” materials to an undisclosed
consultant or any other retained experts (both non-testifying and trial experts), it must first obtain
permission from Meta, by disclosing to Meta the consultant or Expert’s name and residence, their
resume, current employer, every person or entity from whom the Expert received compensation or
' The protective order’s agreed-to definition of “Expert” provides that employees or soon-to-be
employees of Meta’s competitors may not serve as an expert, further addressing Meta’s
competitive concerns. Exhibit A, § 8.
? The Commonwealth has also added a definition for “App-Based Competitor” in Exhibit A, § 2,
to correspond with attestation proposed in Exhibit A, § 35. This definition substantially mirrors
that used in the Uber/Lyft litigation’s protective order.
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Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
funding, all litigation for which the Expert has offered testimony, and any patents or patent
applications where the Expert has any involvement or pecuniary interest. See Exhibit B, { 35.
Most fundamentally, and aside from the burden of complying with these provisions, Meta’s
language requires that the Commonwealth abrogate its prerogative to not identify consultants or
non-testifying experts retained in anticipation of litigation who are not expected to be called as
expert witnesses at trial. Mass. R. Civ. P. 26(b)(4)(A) (a party may “only” obtain the identity of
experts “whom the other party expects to call as an expert witness at trial”). Requiring such
disclosure of non-trial consultants and experts invades clear work product protected information
and legal case strategy. See Salvas v. Wal-Mart Stores, Inc., 18 Mass. L. Rptr. 387 (Mass. Super.
Ct. 2004) (“the selection of a limited number of documents from the much greater universe of
documents constitutes work product within the meaning of Rule 26 and Massachusetts case law’).
Further, procedurally, Defendants’ proposal creates excessive, and protracted conferral and
discovery motion practice requirements that unnecessarily involve the court. This is unduly
burdensome, impedes expeditious advancement of discovery, and does not promote judicial
economy. Finally, Defendants’ proposal would also provide Meta an unfair advantage in this
litigation because the Commonwealth likely has no “Highly Confidential” material to produce in
this litigation, and thus it would operate as a one-sided obligation for the Commonwealth to
disclose its experts to Meta months before Meta would be required to do so under the civil rules
of procedure.
THE DEFENDANTS’ POSITION
During its negotiations with the Commonwealth, Meta proposed a commonly-used
provision that would require a party to disclose certain limited information about an expert—
including the expert’s identity, resume, employers, and prior expert testimony—before providing
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Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
another party’s “Highly Confidential” information to that expert. See Ex. B 4 35. This provision
has already been entered in the ongoing federal multidistrict social media litigation pending in the
U.S. District Court for the Northern District of California (the “MDL”),> in which 34 State
Attorneys General (and other plaintiffs) are raising claims essentially identical to those asserted
by the Commonwealth against Meta here. A version of this provision was also recently adopted
by the D.C. Superior Court in a similar enforcement case against Meta.*
This is a common provision in protective orders. It is widely recognized as a fair protection
to ensure that Highly Confidential information is not disclosed to outside experts who might
(advertently or inadvertently) use such information in ways that prejudice the producing party. As
the court explained in Jn re Google Assistant Privacy Litigation, provisions of this kind—providing
for notice before Highly Confidential information is disclosed to outside experts—are warranted
because the very nature of Highly Confidential information “provides a substantial need for pre-
disclosure identification of an expert.” 2020 WL 4698810, at *2 (N.D. Cal. Aug. 13, 2020). A
“party should [therefore] have an opportunity to vet someone who is going to have access to their
‘extremely sensitive’ confidential information” and “should not have to rely on an opponent’s
3 Protective Order § 7.6, ECF No. 290, In re Social Media Adolescent Addiction/Personal Injury
Prods. Liab. Litig., No. 4:22-MD-03047-YGR (N.D. Cal. May 22, 2023).
4 Amended Order Granting Protective Order | 35, District of Columbia v. Meta Platforms, No.
2023-CAB-006550 (D.C. Sup. Ct. Jan. 23, 2024).
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Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
expert’s self-evaluation of conflicts.” /d.> This type of provision has also been entered in cases in
Massachusetts.°
Furthermore, the Commonwealth’s proposed compromise to require retained experts to
agree to be bound by the Protective Order is not a solution. Meta should not have to rely on the
Commonwealth’s judgment on this critical issue because the Commonwealth is not in a position
to identify Meta’s competitors, see In re Google Assistant Priv. Litig., 2020 WL 4698810, at *2,
and also because non-employee consultants of competitors could present just as much of a
disclosure risk as employees. For that reason, the Court should adopt the reasonable and
commonly-used provisions that Meta has proposed—and that the MDL Court and D.C. Superior
Court have implemented—to protect the Company from competitive harm.
5 See also Bethesda Mgmt. Co. v. Bernstein Mgmt. Corp., 2015 WL 13667752, at *1-2 (D.D.C.
Feb. 23, 2015) (“Plaintiff’s concern that the proposed procedure may permit Defendant to vet or
control Plaintiff’s experts and consultants is not well-taken.”).
® See, e.g., Alnylam Pharms., Inc. v. Dicerna Pharms., Inc.,2016 WL 6635935, at *2 (Mass. Super.
Sept. 13, 2016) (holding that there was “no reason” for the Receiving Party’s expert who consulted
for a competitor to “see business strategy information included in [the Producing Party’s] Highly
Confidential documents” and requiring the Receiving Party to identify the specific documents it
will show the expert); Isaac v. Blendtec, Inc., 2023 WL 3410262, at *6 (D. Mass. May 12, 2023)
(entering provision similar to what Meta seeks here).
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Date Filed 2/15/2024 10:29 AM
Superior Court - Suffolk
Docket Number 2384CV02397
Respectfully submitted,
COMMONWEALTH OF META PLATFORMS INC. and
MASSACHUSETTS INSTAGRAM, LLC
By its attorney, By their attorneys,
ANDREA JOY CAMPBELL /s/ Felicia H. Ellsworth
ATTORNEY GENERAL Felicia H. Ellsworth (BBO# 665232)
Allyson Slater (BBO# 704545)
/s/Kaitlyn Karpenko WILMER CUTLER PICKERING
Christina Chan (BBO# 677703) HALE AND DORR LLP
Jared Rinehimer (BBO# 684701) 60 State Street
Kaitlyn Karpenko (BBO# 708124) Boston, MA 02109
Assistant Attorneys General Tel: (617) 526-6687
One Ashburton Place, 18" Floor Fax: (617) 526-5000
Boston, MA 02108 Email: felicia.ellsworth@wilmerhale.com
(617) 727-2200 allyson.slater@wilmerhale.com
Christina.Chan@mass.gov
Jared.Rinehimer@mass.gov Christian J. Pistilli (pro hac vice application
Kaitlyn.Karpenko@mass.gov forthcoming)
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, D.C. 20001
Tel: (202) 662-5342
Email: cpistilli@cov.com
Date: February 15, 2024
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Preview
Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 COMMONWEALTH OF MASSACHUSETTS 19 SUFFOLK COUNTY SUPERIOR COURT BUSINESS LITIGATION SECTION COMMONWEALTH OF MASSACHUSETTS Plaintiff, Vv. CIVIL ACTION NO. META PLATFORMS, INC. and 2384-CV-02397-BLS1 INSTAGRAM, LLC Defendant, JOINT STATUS REPORT FOR PROTECTIVE ORDER HEARING Now come the parties and file the following joint status report for the proposed protective order hearing scheduled for February 15, 2024. The parties have extensively met and conferred to discuss terms of a protective order, exchanged redlined drafts and proposals, and reached agreed- upon language and terms in all areas except for one. The outstanding dispute concerns the provisions regarding disclosure of “highly confidential” material to expert witnesses or undisclosed consultants. Below, the parties each outline their proposed language and the bases for their positions. Attached hereto as Exhibit A is the Commonwealth’s proposed protective order, and as Exhibit B is the Defendants’ proposed protective order. Exhibit C is a redline comparison highlighting the differences between the parties’ proposed orders, at §{j 2 and 36. THE COMMONWEALTH’S POSITION The Commonwealth’s proposal (Exhibit A, {§ 2 and 36) sufficiently addresses Defendants’ competitor-based concerns related to improper disclosure of its “Highly Confidential” -1- Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 material while protecting the parties’ entitlement to not disclose non-testifying consultants and experts in accordance with Mass. R. Civ. P. 26(b)(4)(A), or from prematurely disclosing testifying experts. Specifically, in order to prevent competitive harm, the Commonwealth’s provision requires that, prior to disclosure of “Highly Confidential” material to an undisclosed consultant or retained expert, a party obtains both a written attestation that the individual is not an employee, nor anticipated to become an employee! of an “App-Based Competitor”? of Defendants, as well as an executed “Acknowledgment and Agreement to Be Bound” by the terms of the protective order. This same expert disclosure provision was previously adopted by this Court to address similar competitive concerns in the protective order entered in Healey v. Uber Technologies, Inc. and Lyft Inc., Suffolk Superior Court, Civ. Action No. 2084CV01519-BLS1 (“Uber/Lyft” litigation”). Exhibit A, § 8. Additionally, the agreed upon language in the protective order provides Defendants may seek recourse for any unauthorized disclosure. See Exhibit A, Section X,9 43. In contrast, Defendants’ proposed provision unilaterally requires that whenever the Commonwealth seeks to show any of Meta’s “Highly Confidential” materials to an undisclosed consultant or any other retained experts (both non-testifying and trial experts), it must first obtain permission from Meta, by disclosing to Meta the consultant or Expert’s name and residence, their resume, current employer, every person or entity from whom the Expert received compensation or ' The protective order’s agreed-to definition of “Expert” provides that employees or soon-to-be employees of Meta’s competitors may not serve as an expert, further addressing Meta’s competitive concerns. Exhibit A, § 8. ? The Commonwealth has also added a definition for “App-Based Competitor” in Exhibit A, § 2, to correspond with attestation proposed in Exhibit A, § 35. This definition substantially mirrors that used in the Uber/Lyft litigation’s protective order. -2- Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 funding, all litigation for which the Expert has offered testimony, and any patents or patent applications where the Expert has any involvement or pecuniary interest. See Exhibit B, { 35. Most fundamentally, and aside from the burden of complying with these provisions, Meta’s language requires that the Commonwealth abrogate its prerogative to not identify consultants or non-testifying experts retained in anticipation of litigation who are not expected to be called as expert witnesses at trial. Mass. R. Civ. P. 26(b)(4)(A) (a party may “only” obtain the identity of experts “whom the other party expects to call as an expert witness at trial”). Requiring such disclosure of non-trial consultants and experts invades clear work product protected information and legal case strategy. See Salvas v. Wal-Mart Stores, Inc., 18 Mass. L. Rptr. 387 (Mass. Super. Ct. 2004) (“the selection of a limited number of documents from the much greater universe of documents constitutes work product within the meaning of Rule 26 and Massachusetts case law’). Further, procedurally, Defendants’ proposal creates excessive, and protracted conferral and discovery motion practice requirements that unnecessarily involve the court. This is unduly burdensome, impedes expeditious advancement of discovery, and does not promote judicial economy. Finally, Defendants’ proposal would also provide Meta an unfair advantage in this litigation because the Commonwealth likely has no “Highly Confidential” material to produce in this litigation, and thus it would operate as a one-sided obligation for the Commonwealth to disclose its experts to Meta months before Meta would be required to do so under the civil rules of procedure. THE DEFENDANTS’ POSITION During its negotiations with the Commonwealth, Meta proposed a commonly-used provision that would require a party to disclose certain limited information about an expert— including the expert’s identity, resume, employers, and prior expert testimony—before providing -3- Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 another party’s “Highly Confidential” information to that expert. See Ex. B 4 35. This provision has already been entered in the ongoing federal multidistrict social media litigation pending in the U.S. District Court for the Northern District of California (the “MDL”),> in which 34 State Attorneys General (and other plaintiffs) are raising claims essentially identical to those asserted by the Commonwealth against Meta here. A version of this provision was also recently adopted by the D.C. Superior Court in a similar enforcement case against Meta.* This is a common provision in protective orders. It is widely recognized as a fair protection to ensure that Highly Confidential information is not disclosed to outside experts who might (advertently or inadvertently) use such information in ways that prejudice the producing party. As the court explained in Jn re Google Assistant Privacy Litigation, provisions of this kind—providing for notice before Highly Confidential information is disclosed to outside experts—are warranted because the very nature of Highly Confidential information “provides a substantial need for pre- disclosure identification of an expert.” 2020 WL 4698810, at *2 (N.D. Cal. Aug. 13, 2020). A “party should [therefore] have an opportunity to vet someone who is going to have access to their ‘extremely sensitive’ confidential information” and “should not have to rely on an opponent’s 3 Protective Order § 7.6, ECF No. 290, In re Social Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No. 4:22-MD-03047-YGR (N.D. Cal. May 22, 2023). 4 Amended Order Granting Protective Order | 35, District of Columbia v. Meta Platforms, No. 2023-CAB-006550 (D.C. Sup. Ct. Jan. 23, 2024). -4- Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 expert’s self-evaluation of conflicts.” /d.> This type of provision has also been entered in cases in Massachusetts.° Furthermore, the Commonwealth’s proposed compromise to require retained experts to agree to be bound by the Protective Order is not a solution. Meta should not have to rely on the Commonwealth’s judgment on this critical issue because the Commonwealth is not in a position to identify Meta’s competitors, see In re Google Assistant Priv. Litig., 2020 WL 4698810, at *2, and also because non-employee consultants of competitors could present just as much of a disclosure risk as employees. For that reason, the Court should adopt the reasonable and commonly-used provisions that Meta has proposed—and that the MDL Court and D.C. Superior Court have implemented—to protect the Company from competitive harm. 5 See also Bethesda Mgmt. Co. v. Bernstein Mgmt. Corp., 2015 WL 13667752, at *1-2 (D.D.C. Feb. 23, 2015) (“Plaintiff’s concern that the proposed procedure may permit Defendant to vet or control Plaintiff’s experts and consultants is not well-taken.”). ® See, e.g., Alnylam Pharms., Inc. v. Dicerna Pharms., Inc.,2016 WL 6635935, at *2 (Mass. Super. Sept. 13, 2016) (holding that there was “no reason” for the Receiving Party’s expert who consulted for a competitor to “see business strategy information included in [the Producing Party’s] Highly Confidential documents” and requiring the Receiving Party to identify the specific documents it will show the expert); Isaac v. Blendtec, Inc., 2023 WL 3410262, at *6 (D. Mass. May 12, 2023) (entering provision similar to what Meta seeks here). -5- Date Filed 2/15/2024 10:29 AM Superior Court - Suffolk Docket Number 2384CV02397 Respectfully submitted, COMMONWEALTH OF META PLATFORMS INC. and MASSACHUSETTS INSTAGRAM, LLC By its attorney, By their attorneys, ANDREA JOY CAMPBELL /s/ Felicia H. Ellsworth ATTORNEY GENERAL Felicia H. Ellsworth (BBO# 665232) Allyson Slater (BBO# 704545) /s/Kaitlyn Karpenko WILMER CUTLER PICKERING Christina Chan (BBO# 677703) HALE AND DORR LLP Jared Rinehimer (BBO# 684701) 60 State Street Kaitlyn Karpenko (BBO# 708124) Boston, MA 02109 Assistant Attorneys General Tel: (617) 526-6687 One Ashburton Place, 18" Floor Fax: (617) 526-5000 Boston, MA 02108 Email: felicia.ellsworth@wilmerhale.com (617) 727-2200 allyson.slater@wilmerhale.com Christina.Chan@mass.gov Jared.Rinehimer@mass.gov Christian J. Pistilli (pro hac vice application Kaitlyn.Karpenko@mass.gov forthcoming) COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, D.C. 20001 Tel: (202) 662-5342 Email: cpistilli@cov.com Date: February 15, 2024 -6-