Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 29 of 32
by a legal privilege, the normal prohibitions on discovery apply. However, Facebook must
produce any non-privileged documentation that relates to the internal investigation.
The Gambia reasonably expects Facebook’s internal investigation will reveal information
that goes beyond the content of the deleted posts. See Conf. Tr. at 52–53. The investigation
records will illuminate how Facebook connected the seemingly unrelated inauthentic accounts to
Myanmar government officials. See id. Specifically, these records may show which accounts or
pages were operated by the same officials or from the same government locations. 17 Therefore,
Facebook’s internal investigation data—to the extent it exists—may be even more significant to
The Gambia’s ability to prove genocidal intent. Given that Facebook has already conducted its
investigation, the additional burden of production is minimal. Moreover, the requested discovery
could not have greater import in the ICJ litigation.
D.
Deposition
While it may be helpful to The Gambia, a Rule 30(b)(6) deposition is too much to demand
of Facebook. The Gambia seeks this deposition to make sense of the documents it has asked
Facebook to produce—an analysis which The Gambia could conduct thorough its own
examination of the documents. This request is unduly burdensome and adds little in the way of
concrete evidence given the Court’s order for document production.
17
Much of The Gambia’s request for internal investigation data involves Facebook’s analysis of
non-content metadata of the deleted content. See Conf. Tr. at 25, 42–43, 50. “[F]ederal courts
have held that service providers may divulge non-content information to non-governmental entities
in response to civil subpoenas,” because such data falls outside of the SCA. Williams v. AT&T
Corp., No. 15-3543, 2016 WL 915361, at *3 (E.D. La. Mar. 9, 2016) (collecting cases). Noncontent information includes the identifying information for the account holder and “the date, time,
originating and receiving telephone number, and duration for incoming and outgoing calls.” Doe
v. City of San Diego, No. 12-CV-0689-MMA DHB, 2013 WL 2338713, at *4 (S.D. Cal. May 28,
2013). Ultimately, the content/non-content distinction is unimportant here, given the Court’s
determination above that the SCA does not preclude disclosure.
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