UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of ) 

) PUBLIC 

) 

RagingWire Data Centers, Inc., ) DOCKET NO. 9386 

a corporation; ) 

_______________ ) 

COMPLAINT COUNSEL'S MOTION FOR RECONSIDERATION 

Complaint Counsel respectfully request that the Comi reconsider its Order on Complaint 

Counsel's Motion to Compel, dated Febrnaiy 7, 2020 ("Order"), with respect to its rnling that 

Respondent Raging Wire Data Centers, Inc. does not have to produce responsive documents 

related to the Emopean Union's General Data Protection Regulation, 2016 OJ L. 119, 

04.05.2016 ("GDPR") in response to Requests 1-4 in Complaint Counsel's First Set of 

Document Requests ( collectively, "GDPR Discove1y Requests"). 1 Reconsideration is warranted 

because there is a material difference in fact that was not presented to the Comi that may have 

reasonably altered the result, and reconsideration will prevent a clear en or or manifest injustice. 

STANDARD 

Motions for reconsideration are not designed to give litigants a second bite of the apple, 

but may be granted upon a showing of: 

a material difference in fact or law from that presented to the Administrative Law Judge 

before such decision, that in the exercise of reasonable diligence could not have been 

known to the paiiy moving for reconsideration at the time of such decision; (b) the 

emergence of new material facts or a change of law occmTing after the time of such 

1 Complaint Counsel's Motion to Compel Respondent Raging Wire Data Centers, Inc. 's Responses to Complaint 

Counsel's First Set oflnte1rngatories and Requests for Production ("Motion to Compel") identified additional 

inten-ogatories and requests for production that were in dispute because Respondent was also refosing to produce 

information and documents related to the U.S.-EU Safe Harbor Framework. However, Document Requests 1-4 are 

the only specifications that remain in dispute with respect to GDPR. 
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decision; or ( c) a manifest showing of a failure to consider material facts presented to the 

Administrative Law Judge before such decision. 

[S]uch motions should be granted only sparingly. Courts have granted motions to 

reconsider where it appears the court mistakenly overlooked facts or precedent which, 

had they been considered, might reasonably have altered the result, or where 

reconsideration is necessary to remedy a clear error or to prevent manifest injustice. 

In re McWane, Dkt. No. 9352 (F.T.C. Jul. 12, 2012), available at https://www.ftc.gov/sites/

default/files/documents/cases/2012/07/120711aljorderrespmoreconsid.pdf. 

ARGUMENT

On January 27, 2020, Complaint Counsel moved to compel, in part, more complete 

responses to the GDPR Discovery Requests because Respondent refused to produce otherwise 

responsive documents related to GDPR. In opposition, Respondent made three arguments 

against producing responsive materials related to GDPR, two of which were addressed in 

Complaint Counsel’s initial motion. 

First, Respondent argued that it should not have to provide information and documents 

about GDPR because its alleged misrepresentations concerned Privacy Shield, not GDPR. But, 

as addressed in Complaint Counsel’s Motion at 5-6, Privacy Shield is a tool for complying with 

GDPR. More specifically, any company that collects personal information from a resident of the 

European Union and wants to store that personal data on servers located in a U.S.-based secure 

data center can comply with its GDPR compliance obligations (which generally forbid moving 

personal data out of the European Union unless certain conditions are met) if it uses a colocation 

service provider that is a Privacy Shield participant. Thus, when a RagingWire customer or 

potential customer expresses an interest in complying with GDPR, it means that that customer is

particularly likely to find RagingWire’s alleged misrepresentations that it participated in, and 

complied with, Privacy Shield—when it did not—to be material to its decision to purchase 
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RagingWire’s services or its conduct with respect to those services.2

 See In re Jerk, LLC, 2015 

FTC LEXIS 64, *40 (March 13, 2015) (“A false or misleading representation will violate Section 

5 only if it is also ‘material,’ that is, if it is likely to affect a consumer’s conduct with respect to 

the product or service.”) (internal quotation omitted). 

 Second, Respondent argued that it was unnecessary to search specifically for documents 

that reference GDPR because it would produce documents that reference Privacy Shield so that 

Complaint Counsel would have the benefit of those documents to the extent they also reference 

GDPR. Opposition at 6. But, as addressed in Complaint Counsel’s Motion at 6, customers who 

expressed an interest in GDPR compliance may have reviewed Respondent’s privacy policy and 

considered the Privacy Shield mispresentations contained therein to be important – even without 

any further discussions about Privacy Shield with Respondent. See Motion at 6 (citing

RagingWire customer declaration averring that it reviews a potential service provider’s privacy 

policy as part of its GDPR compliance efforts). Therefore, not only were the GDPR-related 

documents directly relevant to the issue of materiality, but they were also likely to lead to 

admissible evidence by identifying the very customers that may have relied upon Respondent’s 

misrepresentations.

These two arguments were well-briefed, and Complaint Counsel does not seek to relitigate them here. However, Respondent raised a final argument in its opposition that was new: 

“In addition, GDPR did not go into effect until two years after RagingWire began participating in 

 

2 Contracting with a vendor that is a Privacy Shield participant is one way to comply with GDPR, but companies 

could still work with vendors that are not Privacy Shield participants provided they take certain additional steps, 

such as entering into model contract clauses. See Motion, Wetherill Decl., Ex. F, ¶ 5 (RagingWire customer 

declaration) (“For partners implicated by GDPR, one of the many things we check for is to see if the partner is 

Privacy Shield certified. If a company is not Privacy Shield certified, we pursue other methods to ensure GDPR 

compliance, such as model contract clauses. The accuracy of a company's representations about being a Privacy 

Shield participant is a big deal to [the company].”).
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Privacy Shield and more than a year after the alleged deception began.” Opposition at 7. This 

argument appears to have carried weight with the Court as it was specifically cited in its holding: 

As alleged in the Complaint, the EU's GDPR took effect as of May 25, 2018. 

Complaint ¶6. Thus, GDPR did not go into effect until two years after RagingWire began 

participating in Privacy Shield and more than a year after the alleged misrepresentation 

about Privacy Shield began. Because the alleged deception revolves around Privacy 

Shield, references to GDPR unrelated to Privacy Shield are not reasonably expected to 

yield information relevant to the allegations of the complaint, to the proposed relief, or to 

the defenses of Respondent. 

Order at 4-5 (“Order”).

However, there was a material difference in fact that was omitted from Respondent’s 

argument and not presented to the Court: while GDPR’s effective date was May 2018, GDPR 

was enacted in April 2016. Thus, notwithstanding Respondent’s suggestion to the contrary, there 

was no significant gap in time between GDPR and Privacy Shield: Privacy Shield was adopted a 

mere two months after GDPR was enacted, in July 2016.3

 Indeed, Privacy Shield was 

“specifically designed with GDPR in mind.” See FAQs-General, Privacy Shield Framework, 

available at https://www.privacyshield.gov/article?id=General-FAQs (noting that Privacy Shield 

addresses GDPR’s substantive and procedural requirements); see also GDPR, Art. 45, available 

at https://eur-lex.europa.eu/legalcontent/EN/TXT/?qid=1552662547490&uri=CELEX 

%3A32016R0679 (providing for Privacy Shield as an acceptable method of transfer of EU 

subjects’ personal information to countries outside of the EU). 

GDPR did not become effective for two years after it was enacted in order to give 

companies the time necessary to bring their privacy practices into full compliance with the 

sweeping changes required under GDPR. See GDPR, Art. 171, available at https://eur-

 

3 Respondent’s argument was also misleading because while the alleged misrepresentations began over a year before 

GDPR went into effect, those misrepresentations persisted for months after GDPR’s effective date of May 2018, or 

until at least October 2018 or later. Compl. ¶¶ 20-21, 38.
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lex.europa.eu/legalcontent/EN/TXT/?qid=1552662547490&uri=CELEX 

%3A32016R0679. This means that GDPR—and firms’ efforts to become GDPR-compliant, 

such as by contracting with vendors that were Privacy Shield participants—was very much 

relevant for the two years prior to its 2018 effective date. For example, one RagingWire 

customer has averred that it began working towards GDPR compliance in 2017, and that a 

vendor’s Privacy Shield certification gives the company “more peace of mind when considering 

whether or not to partner with that company.” See Motion, Wetherill Decl. Ex. F, ¶¶ 4, 6.

The April 2016 date of GDPR’s enactment—and how that information undercuts 

Respondent’s time-gap argument against relevance—is a new fact that was not presented to the 

Court in the parties’ briefs. Given the “low bar for demonstrating relevance in discovery,” 

Johnson v. CoreCivic, Inc., No. 18-CV-1051-STA-TMP, 2019 WL 5089086, at *3 (W.D. Tenn. 

Oct. 10, 2019), Complaint Counsel requests that the Court reconsider its ruling to determine 

whether this new information alters its ruling. 

Complaint Counsel was aware of the date of GDPR’s enactment when it filed its Motion, 

but exercised reasonable diligence in not briefing the issue. Under the FTC’s Rules of Practice, 

Complaint Counsel was not afforded the opportunity to reply to Respondent’s opposition. 

Moreover, the strict word count limits for discovery motions under the FTC’s Rules of Practice 

and this Court’s December 5, 2019 Scheduling Order appropriately discourage briefing side 

issues or otherwise extraneous facts. 

Here, Complaint Counsel had no reason to highlight the date of GDPR’s enactment. 

Respondent did not raise any timing issues with respect to GDPR and its relevance during meet 

and confer discussions, see Kopp Decl. 4. Nor did Complaint Counsel have reason to anticipate 

Respondent’s argument (and the need to preemptively address it in its Motion) because 
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Respondent’s counsel would almost certainly have also been aware of the date of GDPR’s 

enactment and how companies used the two years between GDPR’s April 2016 enactment and 

its May 2018 effective date to work towards compliance. Not only did Respondent have access 

to the customer declaration describing the customer’s GDPR compliance efforts in 2017, see

Kopp Decl. ¶ 3, but Respondent’s own law firm began publicly recommending in December 

2015 that companies should begin changing their business practices “now” in order to comply 

with GDPR rather than waiting until just before GDPR’s effective date. See Akin Gump Straus 

Hauer & Feld LLP, Cybersecurity, Privacy & Data Protection Alert: The EU General Data 

Protection Regulation, (Dec. 21, 2015), available at https://www.akingump.com/en/newsinsights/the-eu-general-data-protection-regulation.html. 

Reconsidering the Court’s ruling would help avoid a clear error or manifest injustice. 

Respondent directed its alleged misrepresentations to a specific, targeted group—those 

customers or potential customers whose business model includes collecting personal information 

from residents in the European Union (that would then be stored on servers located in one of 

RagingWire’s U.S.-based locations)—and those misrepresentations must be analyzed from the 

perspective of that audience. See Deception Statement, 103 F.T.C. at 178-79. Because it is very 

difficult to ascertain a company’s relevant data collection practices from the outside, discovery 

about companies expressing an explicit interest in complying with GDPR is critical for 

identifying Respondent’s targeted audience and discovering additional evidence of materiality. 

Searching for documents or email communications that specifically reference Privacy 

Shield is simply not good enough. For example, RagingWire customers that included questions 

about GDPR compliance in their Requests for Proposal or among their due diligence questions 

may have reviewed Respondent’s privacy policy and relied upon the Privacy Shield 
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misrepresentations contained therein, see Motion, Wetherill Decl., Ex. F at ¶ 4 (RagingWire 

customer declaration that he reviews privacy policies as part of his vendor vetting process 

relevant to GDPR compliance), or may have received oral confirmation of Respondent’s 

purported Privacy Shield certification from their sales representative, rather than in writing. 

Notably, because producing this discovery only includes adding two search terms to 

Respondent’s document search (“General Data Protection Regulation” or “GDPR”), this 

discovery is only potentially burdensome to the extent that customers were frequently asking 

about GDPR compliance—a fact that would significantly undermine Respondent’s arguments 

that its misrepresentations about Privacy Shield were immaterial to its customers. Indeed, during 

meet and confer discussions for this Motion, Respondent’s counsel admitted that his client did 

not want to turn over these GDPR-related documents because it disagreed with Complaint 

Counsel’s theory of the case and therefore did not want to produce evidence that may support 

that theory. Kopp Decl. ¶ 5. Because this discovery goes to the heart of the main disputed issue 

in this case, materiality, Respondent should not be allowed to argue that its alleged 

misrepresentations are immaterial while denying Complaint Counsel the discovery needed to 

probe the veracity of that claim. 

CONCLUSION

 For the above reasons, Complaint Counsel respectfully requests this Court to reconsider 

its Order, and compel Respondent to provide responsive information about GDPR in response to 

the GDPR Discovery Requests. 

Complaint Counsel also respectfully requests a hearing on its Motion. 
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Date: February 11, 2020 Respectfully Submitted,

 /s/ Linda Kopp 

Linda Holleran Kopp 

Robin L. Wetherill 

Division of Privacy and Identity Protection 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop CC-8402 

Washington, DC 20580 

Telephone: (202) 326-2267 (Kopp) 

Facsimile: (202) 326-3393 

Electronic mail: lkopp@ftc.gov (Kopp) 

Complaint Counsel 
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CERTIFICATE OF SERVICE

I hereby certify that on February 11, 2020, I caused the foregoing document to be 

filed electronically through the Office of the Secretary's FTC E-filing system, which will 

send notification of such filing to: 

April S. Tabor, Acting Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm. 

H-113 Washington, DC 20580 

I also certify that I caused a copy of the foregoing document to be transmitted via 

electronic mail to:

The Honorable D. Michael 

Chappell Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm. 

H-110 Washington, DC 20580 

I further certify that I caused a copy of the foregoing document to be served via 

electronic mail to:

Corey W. Roush 

C. Fairley Spillman

Diana E. Schaffner 

Akin Gump Strauss Hauer & Feld LLP 

2001 K. Street, N.W. 

Washington, DC 20006 

(202) 887-4000 

croush@akingump.com 

fspillman@akingump.com 

dschaffner@akingump.com

Counsel for Respondent RagingWire Data Centers, Inc.

February 11, 2020 By: /s/ Robin Wetherill 

 Robin Wetherill 

Federal Trade Commission

 Bureau of Consumer Protection 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

___________________________________

In the Matter of ) 

) PUBLIC

RagingWire Data Centers, Inc., ) 

 ) DOCKET NO. 9386 

 a corporation, ) 

) 

 Respondent. )

___________________________________ ) 

[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL’S 

MOTION FOR RECONSIDERATION

 Upon consideration of Complaint Counsel’s Motion for Reconsideration: 

IT IS HEREBY ORDERED that Complaint Counsel’s Motion is GRANTED. 

Respondent shall produce documents responsive to Requests for Production 1-4 of Complaint 

Counsel’s First Set of Requests for Production that relate to the European General Data 

Protection Regulation. 

ORDERED: 

 ___________________________ 

D. Michael Chappell

Chief Administrative Law Judge 

Date:
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

___________________________________

In the Matter of ) 

) 

RagingWire Data Centers, Inc., ) DOCKET NO. 9386

a corporation; )

___________________________________ ) 

SEPARATE MEET AND CONFER STATEMENT

 Consistent with this Court’s Scheduling Order, Complaint Counsel met and conferred by 

telephone on February 11, 2020 with counsel for Respondent RagingWire Data Centers, Inc. 

(“RagingWire”) in a good faith effort to resolve the discovery disputes that are the subject of 

Complaint Counsel’s Motion to Reconsideration. Counsel were unable to resolve their dispute 

about the matter that is the subject of the Motion. 

Dated: February 11, 2020 Respectfully submitted, 

/s/ Robin L. Wetherill 

Robin L. Wetherill 

Division of Privacy and Identity Protection 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop CC-8402 

Washington, DC 20580 

Telephone: (202) 326-2220 

Facsimile: (202) 326-3393 

Electronic mail: rwetherill@ftc.gov 

Complaint Counsel 

 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Joseph J. Simons, Chairman 

Noah Joshua Phillips 

Rohit Chopra

Rebecca Kelly Slaughter

Christine S. Wilson

In the Matter of

 PUBLIC

RagingWire Data Centers, Inc., 

a corporation, Docket No. 9386

Respondent.

DECLARATION OF LINDA HOLLERAN KOPP

1. I have personal knowledge of the facts set forth in this declaration, and if called as 

a witness, I could and would testify competently under oath to such facts. This declaration is 

submitted in support of Complaint Counsel’s Motion for Reconsideration. 

2. I am an attorney at the Federal Trade Commission and Complaint Counsel in this 

proceeding.

3. The customer declaration, dated Dec. 20, 2019, that was attached as Exhibit F to 

Robin Wetherill’s Declaration in support of Complaint Counsel’s Motion to Compel Respondent 

RagingWire Data Centers, Inc.’s Responses to Complaint Counsel’s First Set of Interrogatories 

and Requests for Production (“Motion to Compel”) was produced to Respondent on December 

20, 2019. 

4. During meet and confer negotiations conducted prior to filing Complaint 

Counsel’s Motion to Compel, Robin Wetherill and I had an extended discussion with counsel for 
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Respondent about materiality and how Safe Harbor and GDPR were relevant. During this 

discussion, Respondent’s counsel did not raise the issue of GDPR’s effective date as a reason for 

why GDPR-related discovery was not relevant to the issue of materiality. If they had, we would 

have affirmatively discussed the frailty of this argument during our meet and confer discussions, 

as well as addressed it in Complaint Counsel’s Motion to Compel. 

5. On February 11, 2020, Robin Wetherill and I met and conferred with counsel for 

Respondent related to Complaint Counsel’s Motion for Reconsideration. As part of these 

discussions, I asked counsel for Respondent how burdensome producing the GDPR-related 

documents really would be given that it would involve just adding a couple of search terms to his 

client’s document production and whether he really thought it would produce that many 

documents so as to be unduly burdensome. Respondent’s lead counsel responded that he didn’t 

know how many documents would be responsive to such a search, but that his client disagreed 

with Complaint Counsel’s theory of the case and therefore did not want to produce documents 

that could be used by Complaint Counsel to support that theory. 

I declare under the penalty of perjury that the foregoing is true and correct. Executed this 

11th day of February 2020 in Washington, D.C. 

Respectfully submitted,

 /s/ Linda Kopp 

Linda Holleran Kopp 

Division of Privacy and Identity Protection

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2267 

Facsimile: (202) 326-3393 

Electronic mail: lkopp@ftc.gov 

Complaint Counsel 
Notice of Electronic Service 

I hereby certify that on February 11, 2020, I filed an electronic copy of the foregoing Complaint Counsel's 

Motion for Reconsideration, with: 

D. Michael Chappell 

Chief Administrative Law Judge 

600 Pennsylvania Ave., NW 

Suite 110 

Washington, DC, 20580 

Donald Clark 

600 Pennsylvania Ave., NW 

Suite 172 

Washington, DC, 20580 

I hereby certify that on February 11, 2020, I served via E-Service an electronic copy of the foregoing Complaint 

Counsel's Motion for Reconsideration, upon: 

Linda Kopp 

Federal Trade Commission 

lkopp@ftc.gov 

Complaint 

Robin Wetherill 

Federal Trade Commission 

rwetherill@ftc.gov 

Complaint 

Corey Roush 

Partner 

Akin Gump Strauss Hauer & Feld LLP 

croush@akingump.com 

Respondent 

C. Fairley Spillman 

Partner 

Akin Gump Strauss Hauer & Feld LLP 

fspillman@akingump.com 

Respondent 

Diana Schaffner 

Akin Gump Strauss Hauer & Feld LLP 

dschaffner@akingump.com 

Respondent 

Linda Kopp 

Attorney