1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FEDERAL TRADE COMMISSION, Plaintiff,

v. Civil Action No. 20-3590 (JEB) META PLATFORMS, INC.,
Defendant.

MEMORANDUM OPINION Defendant Meta Platforms, Inc. made two acqui sitions relevant to this antitrust action — Instagram in 2012 and WhatsApp in 2014. Plaintiff Federal Trade Commission reviewed both transactions at the time to assess whether eith er posed anticompetitive concerns and ultimately allowed both to proceed. In the course of the Commission’s review, attorneys from its Bureau of Competition and economists in its Bureau of Economics prepared “recommendation packages” and other notes to advise the FTC on each proposed acquisition. As the discovery phase of this litigation pro ceeds, Meta now asks this Court to compel the FTC to produce these materials, arguing that th ey contain relevant f actual information about the contemporaneous state of mark et competition that is unavailabl e anywhere else. For its part, the Commission asserts that these materials are protected by a variet y of privileges, most notably the deliberative-process privilege. Meta rejoins th at the privilege does no t apply and that, in any event, the FTC waived any privilege when it di sclosed these materials to the House Judiciary Committee in September 2019. As the Court agrees that the FTC has the better of this argument, it will deny the Motion.2 I. Background As this Court has recounted th e factual and procedural backgr ound of this case in depth in its prior Opinions, see Fed. Trade Co mm’n v. Facebook, Inc., 2022 WL 103308 (D.D.C. Jan. 11, 2022); Fed. Trade Comm’n v. Facebook, Inc ., 560 F. Supp. 3d 1 (D.D.C. 2021), it will confine this brief background sect ion to the facts surrounding the doc uments directly at issue in this Motion. On April 9, 2012, Meta — then, Facebook, Inc. — announced an agreement to acquire Instagram. See ECF No. 155 (Def. Motion to Comp el) at 4. In conjuncti on with this acquisition, Defendant filed a pre-merger notification with the FTC as required by the Hart-Scott-Rodino Act, 15 U.S.C. § 18a. Id. The Commission then reviewed this transaction over the next four months to assess whether it posed anticompetitive concerns, taking the rare step of “requir[ing] the submission [by the parties] of additional inform ation or documentary material relevant to the proposed acquisition.” 15 U.S.C. 18a(e)(1)(A). During the course of the agency’s review, attorneys from the FTC’s Bureau of Competi tion and economists from it s Bureau of Economics prepared two “recommendation packages” for th e Commission’s review. See ECF No. 160 (Pl. Opp.) at 3. The FTC describes these recomm endation packages as including memoranda from BC attorneys and BE economists that “reflect legal advice, contain co nfidential third-party information, and comprise part of the FTC’s in ternal deliberation and decision-making.” ECF No. 160-7, Exh. A (Declaration of Holly Vedova), ¶ 9. These packages are often generated as part of the Commission’s decisionmaking proce ss on matters including: “(1) screening mergers to determine whether to seek additional information, (2) authorizing and issuing compulsory process, including civil inves tigative demands and subpoenas, (3) undertaking enforcement through filing complaints, or (4) decl ining to take further action.” Id.3 The first of the two recommendatio n packages relates to the use of compulsory process to secure facts relevant to the potential acquisition. It include s cover memos from the BC Front Office and BC career staff, memos “to the Merger Screening Committee — later provided to the Commission as an attachment to the compulsoryprocess memorandum” — and a draft resolution authorizing the use of compulsory process. S ee Pl. Opp. at 3–4; ECF No. 160-8 (FTC Priv. Log) at 1 (entries 1a–1e). The second package conc erns BC and BE staff re commendations to close the investigation into the acquisition. See Pl. Opp. at 3–5; FTC Priv. Log at 2 (entries 2a, 2b, and 2e). After deliberating on these materials, the Commission voted 5–0 to allow the acquisition to proceed and issued a no-action lett er informing Meta that its “investigation has been closed,” with the proviso that the decision “i s not to be construed as a determination that a violation may not have occurred.” ECF No. 160-9 (FTC Letter). On February 19, 2014, Meta announced a second acquisition, this time of WhatsApp. Like its previous purchase, this transaction was also subject to Hart-Scott-Rodino Act pre-merger review. See 18 U.S.C. § 18b. This time, however , the FTC’s review was more streamlined, and the Commission did not request th e submission of additional info rmation. It instead made a decision based solely on Meta’s HSR filings and interviews with thir d parties. See Pl. Opp. at 5. In connection with this review, BC staff created only two documents at issue here, both of which were staff notes related to the investigation. See id.; FTC Priv. Log at 4 (entries 3 and 4). Once again, after reviewing the transaction, the FTC chose not to challenge it. Meta requested the documents and memorand a from the FTC that its staff generated while reviewing both the Instag ram and WhatsApp acquisitions, arguing that they contain centrally relevant factua l information about the st ate of market competiti on at the time of these deals. See Def. Mot. at 8. The FTC, however, resisted production, argui ng that the materials are4 protected by a variety of privil eges, including the deliberative-pr ocess, work-product, attorneyclient, and investigatory-file pr ivileges. See Pl. Opp. at 1. In now moving to compel, Meta contends th at these documents contain segregable and purely factual information relevant to its case th at can be disclosed and that, regardless, the FTC waived any applicable privileges when it shar ed these documents with the House Judiciary Committee. See Def. Mot. at 2–3. To assist inits analysis, the Court ordered Plaintiff to produce in camera redacted and unredacted copies of the di sputed materials. See Minute Order of Aug. 9, 2022. Having now reviewed those records, the Court may consider the parties’ legal arguments.
II. Legal Standard Federal Rule of Civil Procedure 37 entitles pa rties to “move for an order compelling an answer [or] production” if, am ong other things, “a party fail s to produce documents . . . requested under Rule 34.” Docume nt requests under Rule 34 “may relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2); see Fed. R. Civ. P. 34(a) (“A party may serve on any other party a requ est within the scope of Rule 26(b) . . . .”). Rule 26(b)(1), in turn, sets the “scope of discovery . . . as fo llows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defens e and proportional to the needs of the case.” The main que stion here is whether material concerning the “matter” that Defendant has requested in discov ery is privileged unde r the deliberative-process, work-product, attorney-client, or investigatory-file privileg es. The party seeking to withhold a document — here, the FTC — bears the burden of showing thatthe privilege applies. See United States v. Legal Servs. for NYC, 249 F.3d 1077, 1081 (D.C. Cir. 2001).5 III. Analysis The primary disputes between the parties here are whether the deliberative-process privilege protects the documents that the FT C generated in review ing the Instagram and WhatsApp acquisitions, and, if it does, whether the Commission waived that privilege when it shared these documents with the House Judici ary Committee. The Court looks at these two questions in turn. While the FTC further cont ends that some of these documents are also protected by other privileges, the Court need no t address these because the deliberative-process privilege acts as a complete shield.
A. Deliberative-Process Privilege In refusing production here, the FTC invokes de liberative process. The Court first considers Meta’s position that invoking the privilege runs coun ter to FTC policy. It next addresses whether the privilege is applicable in the circumstances here, and it then examines Meta’s final argument that its showing of manifest need defeats the privilege.
1. Availability of Privilege Meta begins by suggesting — albeit halfheartedly — thatthe deliberative-process privilege is categorically unavailab le for the documents at issue he re as a matter of FTC policy. See Def. Mot. at 12–13; ECF No. 163 (Def. Reply) at 8. Defendant’s only support for this assertion is a citation to the FTC’s 2016 Open Government Plan, a nonbinding guidance document that states that, in the context of Fr eedom of Information Act Exemption 5, the “FTC has worked under the presumption that most in formation protected by the Deliberative Process Privilege . . . should be released if the file has been closed for more th an ten years unless staff can articulate a compelling reason fo r withholding the information.” 2016 Open Government Plan , F ED

. T RADE C OMM ’ N (Sept. 15, 2016), https://www.ftc. gov/system/files /attachments/open-6 government/final_opengov_plan2016.pdf. Because the closure of the Inst agram investigation just celebrated its tenth birthd ay in August, Meta argues thatthe documents surrounding that decision are now available for production. This position ignores, however, that the relevant binding FTC regulation provides th at the privilege applies for 25 years after the document is created, not the merely ten y ears announced in the nonbinding guidance. See 16 C.F.R. § 4.10(a)(3) (exempting certain FT C material from being made public, including “[i]nteragency or intra-agency memoranda or le tters that would not routinely be available by law to a private party in litigation with the Commission, provided th at the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records are requested”). Because the Commission is infact claiming protection for these documents under the deliberative-process privilege c onsistent with these regulatio ns, the timing window remains
open. 2. Applicability of Privilege This privilege “protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to docum ents that embody or expl ain a policy that the agency adopts.” U.S. Fish & Wildlife Ser v. v. Sierra Club, Inc., 141 S. Ct. 777, 783 (2021). It “covers recommendations, draft documents, prop osals, suggestions, and other subjective documents which reflect the pers onal opinions of the writer,” Co astal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), and “res ts on the obvious realiz ation that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Dep’t of Interior v. Kl amath Water Users Protec tive Ass’n, 532 U.S. 1, 8– 9 (2001). If such documents we re subject to disclosure, the quality of decisionmaking would deteriorate. Whether the privileg e is claimed in the context of FO IA or in the course of civil7 discovery is irrelevant because the analysis for both is the same. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); Judicial Watch, Inc. v. U.S. Dep’t of State, No. 15- 687, 2021 WL 3363423, at *5 (D.D.C. Aug. 3, 2021) ( noting that “under Exemption 5, an agency may withhold from a FOIA requester any ‘documents[ ] nor mally privilegedin the civil discovery context’”) (quoti ng NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). To qualify under this privilege, a record must be both “predecisional” and “deliberative.” “Documents are ‘predecisional’ if they were ge nerated before the agency ’s final decision on the matter,” Sierra Club, Inc., 141 S. Ct. at 786, a nd remain predecisional even if an agency subsequently makes a final decision on the issue discussed in the record. See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). The primary purpose of the “predecisional” requirement is to differentiate between documents “prepared . . . to assist an agency decisionmaker in arriving at his deci sion” and those drafte d “to support a decision already made.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal quotation marks and citation omitted). To show that a document is predecisional, the agency need not identify a specific final agen cy decision; it is suffi cient to establish “what deliberative process is involved, and the role played by the documents at issu e in the course of that process.” Coastal States Gas Corp., 617 F.2d at 868. Documents, furthermore, “are ‘d eliberative’ if they were pr epared to help the agency formulate its position,” Sierra Club, Inc., 141 S. Ct . at 786, and thus “reflect[ ] the give-and-take of the consultative process.” Petroleum In fo. Corp., 976 F.2d at 1434 (internal citations omitted). “A document that does nothing more than explai n an existing policy cannot be considered deliberative.” Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010).8 a. Predecisional Neither party appears to dispute that th ese documents are predecisional. The FTC describes the Instagram recommendation packag es (entries 1a–1e, 2a, 2b, and 2e of the FTC Privilege Log ) as being “prepared prior to, and provid[in g] information and an alysis to inform, the Commission’s decisions in 2012 to authorize compulsory proce ss and close the investigation relating to Instagram.” Vedova Decl., ¶ 17. These documents “ communicate[d] [the FTC staff’s] analyses , thoughts, theories , opinions , conclusions, advice, and recommendations made to the Commission.” Id. Similarly, the Wh atsApp documents (entries 3 and 4 of the FTC Privilege Log) are notes created by investigators that contain “analysis of facts and the legal issues arising in the review as well as opinions, recommendations, and strategy relating to further investigation.” Id., ¶ 18. Based on these descriptions, which appear to accurately reflect th e content observed in the Court’s in camera review, the FTC documents were clearly“generated before the adoption of an agency policy,” Judicial Watch, 847 F.3d at 739, and contain “evaluations” or “analysis . . . prepared for senior-level reviewand decisionmaking.” Machado Am adis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020). b. Deliberative The parties clash, however, over whether the do cuments satisfy the deliberative criterion. Meta stresses that the privilege “does not apply at all to purely factual material” and urges that the FTC memoranda are likely to contain “m aterial facts that were found during the investigation,” which must be disclosed. See Def. Mot. at 13. The FTC counters that “any factual material contained in each of the disput ed documents are ‘inextricably interwoven’ with staff’s analyses and re commendations.” Pl. Opp. at 9; Ve dova Decl., ¶¶ 17, 18. Their release9 would, consequently, “force the di sclosure of the deliberative pr ocess” and cause the sorts of harms that the privilege is mean t to avoid. See Pl. Opp. at 9. The FTC has the stronger position here. Meta is correct that “[f]actual material that does not reveal the delib erative process is not protected by this exemption.” Morley v. Cent. Intel. Agency, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting Paisley v. Cent. Intel. Agen cy, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984 )); see also Env’t Prot. Agency v. Mink, 410 U.S. 73, 88 (1973) (“[P]urely factual material contained in deliberative memoranda and severable from its context would generally be available for disc overy by private parties in litigation with the Government.”). That does not mean, however, that all factual material contained in government memoranda must be automatically disclo sed. Rather, the court “must examine the information requested in light of the policies and goals that underlie the deliberative process privilege.” Wolfe v. Dep’t of Hea lth and Hum. Servs., 839 F.2d 768, 774 (D.C. Cir. 1988). This is because “privilege serves to pr otect the deliberative pro cess itself, not merely documents containing deliberat ive material.” Mapother v. Dep’t of Just., 3 F.3d 1533, 1537 (D.C. Cir. 1993). In accordance with these principles, the D.C. Circuit has emphasized that, in some cases, “even material that could be characterized as ‘factual’ would so expose the deliberative process that it must be covered by the privilege.” Wolfe, 839 F.2d at 774. The privilege thus continues to extend to factual material that “is so inextri cably intertwined with the deliberative sections of documents that its disclosure would inevitably re veal the government’s deliberations.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The FTC contends that this is precisely the harm that would occur here. It further insist s that any factual portions of its recommendation10 memoranda and notes are nonsegrega ble, arguing that “[d]isclosi ng [FTC] staff’s determination of which facts are ‘material’ is tantamount to disclo sing staff’s opinions and recommendations.” Pl. Opp. at 9. Meta responds by pointing to Playboy Enterp rises, Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir. 1982), where th e court held that the Depar tment of Justice could not withhold a report on the activitie s of a former FBI informant. While the government had asserted that the entire report “r eflect[ed] the choice, weighing and analysis of facts” from over 800 volumes of materials, the court noted that “[ a]nyone making a report must of necessity select the facts to be mentioned in it ” and that “a report does not beco me a part of the deliberative process merely because it contains only those facts which the person making the report thinks material.” Id. at 935 (internal quotation marks o mitted). Indeed, “[i]f th is were not so, every factual report would be prot ected as a part of the deliberative process.” Id. Meta’s reliance on Playboy Enterprises, however, is unpersuasive. The court in that case noted that the documents at issue there were “p repared only to inform the Attorney General of facts which he in turn would make available to members of Congress.” Id. Its disclosure, therefore, would not have exposed the agency’s deliberations to public light. Unlike in Playboy Enterprises, the factual material in this case “w as not assembled for an agency actor merely to pass along to outsiders, but rather for purely internal de liberative purposes.” Elec. Priv. Info. Ctr. v. Transp. Sec. Admin., 928 F. Supp. 2d 156, 168 (D.D.C. 2013); see also Montrose Chem. Corp. of Calif. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974) (holding that factual summaries compiled into documents used by administrat or were privileged because “[t]o probe the summaries of record evidence would be the same as probing the decision- making itself”). The documents that FTC staff prepared here are, inst ead, precisely of the nature that the deliberative-11 process privilege is designed to pr otect, as they were “intended to facilitate or a ssist development of the agency’s final position on the relevant i ssue[s].” Nat’l Sec. Archive v. Cent. Intel. Agency, 752 F.3d 460, 463 (D.C. Cir. 2014). If that were not enough, the Court’s in camera review of the materials confirms the FTC’s proffered explanation that there are not segregable and purely factual materials among the documents that would be appropriate for disclosure . Rather, to the extentthat those documents contain factual material, they are “inextricably intertwined” with the deliberative portions of the documents, including predecisional st aff analysis and opinions. As such, their release would “harm[] the deliberative pro cesses of the government by ch illing the candi d and frank communications necessary for effective governme ntal decision-making.” Elec. Frontier Found. v. U.S. Dep’t of Just., 739 F.3d 1, 12 (D.C. Ci r. 2014) (internal quota tion marks omitted).
3. Challenge to Agency’s Decisionmaking Meta next insists that the deliberative-pr ocess privilege does not apply because its equitable defenses (laches, es toppel, and waiver) put the FT C’s intent and decisionmaking process directly at issue. See Def. Mot. at 14–15. That argument , too, goes nowhere. The Court acknowledges that the privilege is “unavailable where ‘the Constitution or a statute makes the nature of govern mental officials’ deliberations the issue.’” Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1136 (D.C. Cir. 2000) (quoting In re Subpoena Duces Tecum Served on the OCC, 145 F.3d 1422 (D.C. Cir.), re h’g granted, 156 F.3d 1279 (D.C. Cir. 1998)). This exception is “limited to thos e circumstances in which the cause of action is directed at the agency’s subjective motivation.” OCC, 156 F.3d at 1280. The privilege is not waived, for example, when a defendant merely complains of “arbitrary and capri cious” action under the Administrative Procedure Act absent some other “showing of bad faith or improper behavior.”12 Id. at 1279–80. Instead, “archetypal” examples of where the govern ment’s subjective motivations are at issue include “Title VII action[s] or . . . constitutional claim[s] for discrimination.” OCC, 145 F.3d at 1424. In thos e cases, “Congress create[d] a cause of action that deliberatively exposes govern ment decisionmaking to the light ,” defeating the protection of the deliberative-process pr ivilege. Id. at 1424. No such cause of action exists here. Instea d, Meta relies on the fa ct that its defenses pivot on the “unfairness of the government’s conduct” in bringi ng this action — namely, because the FTC “clear[ed] [these] transactions, inducing re liance over eight-to-ten years at the cost of billions of dollars, then suddenly reemerg[ed] to challenge those acquisitions on grounds that were likely rejected as unfounded when the transac tions were reviewed and cleared.” Def. Mot. at 15. This conduct, the argument goes, “put[s] squarely at issu e the FTC’s intent and decisionmaking processes in 2012 and 2014.” Id. To th e extent that Meta’s defense hinges on its reliance interests, however, the argument about unfair governmental ac tion would depend not on why the FTC failed to block the mergers in 2012 and 2014, but instead on th e fact that the FTC did not challenge those acquisitions at the time they were made. And Meta has not alleged any kind of “affirmative misconduct” as sociated with its estoppel argument that would call into question the government’s “subjective motivati ons.” Landry, 204 F.3d at 1136; see also id. (finding that an “ordinary enforcement action in no way implicates the [agency’s] subjective motivations”); Morris Commc’ns, Inc. v. Fed. Commc’ns Comm’n, 566 F.3d 184, 191 (D.C. Cir. 2009). Meta relies on Doe 2 v. Esper, N o. 17-1597, 2019 WL 4394842 (D.D.C. Sept. 13, 2019), which is also inapposite because that case did invo lve a cause of action that was directed at the government’s subjective decisionmaking — specific ally, a constitutional cl aim of discrimination13 where the court weighed whether a policy related to transgender troops wa s the product of “the considered professional judgment of appropriate military officials” for purposes of deference. Id. at *6. This required the c ourt to inquire into the “decision -making process re sulting in the development of the [policy]” and “the process us ed to develop” the pol icy, which it could not do without setting aside the deliberat ive-process privilege. Id. Un like that discrimination case, no such need exists here to exa mine the process the FTC used in deciding to forgo action in 2012 or
2014. In sum, the Commission is entitled to re ly on the deliberative-process privilege in refusing to turn over th e subject materials.
B. Waiver Retreating to its fallback position, Meta next c ontends that the privilege’s applicability is irrelevant because the FTC waived it when, in response to a September 2019 request, it shared these same documents with members of the Hous e Judiciary Committee. The Court disagrees. The D.C. Circuit has recognized that “voluntary disclosure of privilege d material . . . to unnecessary third parties . . . waives the [deliberat ive-process] privilege . . . for the document or information specifically released,” although such disclosure does not waive the privilege “for related materials.” In re S ealed Case, 121 F.3d at 741 (interna l quotation marks and citations omitted). The Circuit also cautioned that because the privilege “exists to aid the governmental decisionmaking process, a waiver shou ld not be lightly inferred.” Id. Applying the standard for civil- discovery privileges, this Ci rcuit has held in the FOIA context that an agency does not waive the priv ilege when it transmits to Congress “memoranda and correspondence created as part of the [agenc y’s] deliberative process. ” Rockwell Int’l Corp. v. U.S. Dep’t of Just., 235 F.3d 598, 604 (D.C. Ci r. 2001). Documents that were “created14 specifically to assist Congress” and shared “for the sole purpose of assi sting [a] Committee with its deliberations,” however, do not continue to benefit from protecti on. Id. (comparing Dow Jones & Co. v. Dep’t of Just., 917 F.2d 571, 573–75 (D.C. Cir. 1990)). The documents here obviously fall into the former cat egory because they were “creat ed as part of the [FTC’s] deliberative processes,” Rockwell Int’l Corp., 235 F.3d at 604, and contained only agency staff’s “preliminary agency opinions rather than articulations of a final de cision.” Elec. Priv. Info. Ctr., 928 F. Supp. 2d at 165 (quotation marks omitted). As such, they were plai nly created to assist with agency, rather than congressional, deliberations. The mere sharing of the Inst agram and WhatsApp records with Congress also did not compromise the confidentiality of those materials. “[A] document otherwise covered by the deliberative process privilege does not lose this status merely because it was disclosed to a member of Congress without an ex plicit warning of its confidential status.” Heggestad v. U.S. Dep’t of Just., 182 F. Supp. 2d 1, 13 (D.D.C. 2000) . For instance, in Murphy v. Dep’t of the Army, 613 F.2d 1151 (D.C. Cir. 1979), the Circuit extended the same protection to documents that were disclosed to an indi vidual congressman, even when that disclosure was not explicitly conditioned on confidentiality. Id. at 1156; see also Rockwe ll Int’l Corp., 235 F.3d at 604 (reaffirming the protection extended in Murphy in the context of finding that DOJ did not waive privilege when it “gave . . . documents to [a] Subcommittee only after the Subcommittee expressly agreed not to make them public”). The FTC’s sharing of its Inst agram and WhatsApp documents with the House Judiciary Committee occurred under similar circumstances. In providing the materials to Congress, the Commission was responding to a formal request by the Chairman and Ranking Member acting in their official capacities. S ee ECF No. 160-2 (House Comm. Lette r). In its response to the15 Committee, moreover, the Commission include d a “request[] that the Committee and Subcommittee maintain [the] confidentiality ” of the nonpublic and privileged documents, including “predecisional, deliber ative materials” it was transm itting. See ECF No. 160-3 (FTC Letter); ECF No. 160-1 (Declara tion of Elizabeth Tucci), ¶¶ 13–14, 17–18. The final House report also “does not reproduce or reference FTC staff’s internal recommendations or analysis,” Pl. Opp. at 20, and instead limits its references to FTC documents to a discussion about the extent to which antitrust enforcement considers anticompetitive effects of acquisitions generally. See Majority Staff of H. Subcomm. on Antitrust, Com. & Admin. Law of the Comm. on the Judiciary, Investigation of Co mpetition in Digital Markets: Majority Staff Report and Recommendations, 117th Cong. 332–33, 339 (July 2022). Particularly when transmitted to the congressional committee of comp etent jurisdiction for overseeing antitrust en forcement and with requests for confidentiality, such a disclosure is “not inconsistent with maintaining secrecy against opponents[] [and] should be allowed without waiver of th e privilege.” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980) (discussing waiver in context of attorney-client and work -product privileges). In the context of its argument that Plaintiff also waived the work-product privilege, Meta contends that the FTC and HJC were actually in a “potentially adversar ial posture” because HJC was “investigating [the FTC], and pot entially criticizing its actions.” Def. Reply at 5 (citing In re Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984)); see also Am. Tel. & Tel. Co., 642 F.2d at 1299 (holding that waiver of work-pr oduct privilege depends in part on whether the disclosure is consistent with “protect[ing] informat ion against opposing parties”). The Court need not analyze this argument, as it is inapplicab le to waiver in the context of the deliberativeprocess privilege. The Court noneth eless believes that this issu e is worth addressing in the16 context of the understanding that the FTC and HJC ha d of the confidentiality of the materials that the Commission disclosed. In their request letter, the Chairman and Ranking Member identify the focus of their investigation to include three components: “(1) competition problems in digital markets; (2) whether dominant firms are engaging in anti -competitive conduct online; and (3) whether existing antitrust laws, competition policies, and current enforcement levels are adequate to address these issues.” House Co mm. Letter at 1. The letter go es on to acknowledge that “the requested materials are likely to contain sensitive information regarding the FTC’s internal decision-making processes, FTC attorney work product, and third party businesses,” but it explains that this information was necessaryfor the Committee to “assess whether existing antitrust laws are adequate for tackling currentcompetition problems and to identify potential reasons for under-enforcement.” Id . at 2. The request for inform ation, then, appears to suggest that the targets of the in vestigation were participants in digi tal markets, like Meta, as opposed to the FTC itself, and that the Committee and the Commission understood the need to maintain the confidentiality of investigatory materials. Meta also insists — with bol dface and italics for emphasis — that this Court should not give much credence at all to Rockwell Int’l Co rp. and Murphy because these cases were decided in the FOIA context, and FOIA exemptions do no t apply to requests from Congress. See Def. Reply at 6; 5 U.S.C. § 552(d). But, as this Court has already explained, “the plain meaning of Exemption 5 is that the scope of the Exemption is coextensive with the scope of the discovery privileges it incorporates.” Fed. Trade Co mm’n v. Grolier Inc., 462 U.S. 19, 32 (1983) (Brennan, J., concurring in part a nd in the judgment); s ee also Weber Aircraft Corp., 465 U.S. at 799 (noting FOIA Exemption 5 merely “incorporates civil discovery privileges”). Additionally,17 although the court in Rockwell Int’ l Corp. observed that the earli er decision in Murphy “relied mostly on FOIA section 552(d),” the policy justifications unde rlying the deliberative-process privilege counseled the same resu lt. Rockwell Int’l Corp., 235 F .3d at 604. It noted specifically that under the approach it reject ed, and that Meta promotes here , “every disclosure to Congress would be tantamount to a waiver of all privileges and exemptions, [and] executive agencies would inevitably become more cautious in furn ishing sensitive information to the legislative branch — a development at odds with public policy which encourages broad congressional access to governmental information.” Id. Nor do the cases that Meta relies upon for wa iver move the needle. United States v. Phillip Morris Inc., 212 F.R.D. 421 (D.D.C. 2002), fo r example, involved an attempt by a party to claim privilege over documents provided to a Congression al committee only after the Committee had already “post[ed] the . . . documents on the internet.” Id. at 426. Unlike in that case, the HJC letter specifically acknowledged the privileges that would li kely apply to the FTC materials, the FTC correspondingly requested co nfidentiality, and the materials have since remained confidential. Similarly, In re Fe d. Nat’l Mortg. Ass’n Sec., Derivative & “ERISA” Litig

. , No. 04-16398, 2009 WL 10708594 (D.D.C. June 9, 2009), involved documents that the Office of Federal Housing Enterprise Oversight had inadvertently produced to individual defendants in the litigation and that had, by th e time OFHEO claimed the deliberative-process privilege, been in those defendants’ possession “f or months, if not years. ” Id. at *2. Finally, Meta relies on Citizens for Re sp. & Ethics in Wash. v. U.S. Dep’t of Commerce, No. 18-3022, 2020 WL 4732095 (D.D.C. Aug. 14, 2020), which i nvolved the Commerce Department’s emailing draft congressional testimony to a “non -governmental third part y” to print at yet another third party’s home. Id. at *2. Because the government did not “take steps to protect18 [the] privileged materials,” the co urt found that it had waived delib erative-process protection. Id. at *2. Here, however, the FTC did take steps to re quest the confidentiality of the material it was disclosing, as the Court has already discussed.
C. Showing of Need Meta’s final toss contends that even if the FT C did not waive its clai ms of privilege, the Instagram and WhatsApp documen ts should nonetheless be disc losed because Defendant has demonstrated a “manifest” showing of need suffic ient to overcome the privilege. See Def. Mot. at 15. This effort falls short of its target. The deliberative-process privilege is a quali fied privilege that can be “overcome by a sufficient showing of need.” In re Sealed Case, 121 F.3d at 737. “This need determination is to be made flexibly on a case-by-case, ad hoc basis. ” Id. Each time the privilege is asserted, a court “must undertake a fresh balancing of the competi ng interests.” Id. ( quotation omitted). “The court must weigh the public interest in ‘prevent[ing] inju ry to the quality of agency decisions’ against the ‘need of the party seeki ng privileged evidence.’” Brown v. D.C., No. 10- 2250, 2021 WL 3883647, at *4 (D.D.C. Aug. 31, 2021) (q uoting In re Sealed Case, 121 F.3d at 737, 746); see also In re Anthem, Inc. DataBreach Litig., 236 F. Supp. 3d 150, 159 (D.D.C. 2017) (“[P]rivileged materials may be ordered disc losed if the court conc ludes the private need for disclosure outweighs the public interest in non-disclosure.”). In making this determinati on, a court must consider, inter alia , (a) “the relevance of the evidence,” (b) “the availability of other evidence,” (c) “the seriousness of the litigation,” (d) “the role of the government,” and (e ) “the possibility of future timidity by government employees” should the materials be releas ed. In re Sealed Case, 121 F.3d at 737–38 (internal citations19 omitted). “The party seeking the documents bear s the burden of demonstr ating that the balance of interests tips in his or her favor.” In re Anthem, Inc. Data Breach Litig., 236 F. Supp. at 159. As this Court has already discussed, it is doubtful that the evid ence Meta seeks from these memoranda and notes is particularly relevant to its equitable defenses. To the extent that the company characterizes the FTC’s current enforcem ent action as unfair, it is the pure fact that the Commission previously allowed the acquisition to continue that is of relevance to Meta’s reliance interests, not the reasoning for their acq uiescence. Additionally, the FTC has identified all of the available documents and witnesse s that it interv iewed ahead of its 2012 and 2014 recommendations, see Pl. Op. at 19, leaving only the staff analysis and opinions as unavailable to Meta. The availability of this evidence ne gates any need for the specific recommendation memoranda and notes prepared by FTC staff for the Commission. S ee Fed. Trade Comm’n v. Boehringer Ingelheim Pharms ., Inc., 778 F.3d 142, 155–56 (D.C. Ci r. 2015) (indicating that “special circumstances” warranting disclosure ar e not present when witnesses are available for deposition); see also Mischler v. Nov ograaf Grp. BV, No. 18-2002, 2019 WL 6135447, at *10 (D.D.C. Nov. 19, 2019). Although the Court recognizes the seriousness of this “la[test ] great antitrust battle in our courthouse,” Facebook, Inc., 560 F. Supp. 3d at 4, a nd the role of the government in carrying its burden when seeking affirmative relief, these fa ctors are outweighed by the public interest in “prevent[ing] injury to the quality of agency decisions.” In re Sealed Case, 121 F.3d at 737 (quoting Sears, 421 U.S. at 516). For the reasons the Court has already explained based on its in

camera review of the records, the release of the documents at issue here would “harm[] the deliberative processes of th e government by chilling the can did and frank communications necessary for effectiv e governmental decision-making.” Elec. Frontier Found., 739 F.3d at 1220 (internal quotation marks omitted). Meta ha s consequently failed to demonstrate a “sufficient showing of need” to defeatthe privilege. In re Sealed Case, 121 F.3d at 737.
IV. Conclusion For the foregoing reasons, the Court will deny Defendant’s Motion to Compel. A contemporaneous Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 6, 2022