Federal Trade Commission v. Meta Platforms, Inc.

• Court: District Court, District of Columbia
• Decided: April 2, 2025
• Docket: Civil Action No. 2020-3590
• Status: Published

Opinion

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

In preparation for the high-stakes, national antitrust trial in this case set to begin in a

matter of weeks, Plaintiff the Federal Trade Commission and Defendant Meta Platforms, Inc.,

have served multiple subpoenas on nonparties compelling them to testify (and some to produce

documents) if called as witnesses. The nonparty witnesses are all individuals who have worked

or currently work for various technology companies that comprise the commercial ecosystem for

this dispute, and they now move to quash those subpoenas, asserting that the demands made on

them contravene the geographic limitations of Federal Rule of Civil Procedure 45 and otherwise

impose an undue burden. See ECF Nos. 486 (Joint Mot.), 487 (Baumarten Mot.). Several have

also moved to quash the document requests made in connection with Meta’s trial subpoenas. See

Joint Mot. at 9, 15–16; ECF No. 488 (Snap Mot.). Unmoved by the nonparties’ arguments, the

Court will deny the Motions, provided that witnesses Ronak Shah, Julia Tang, and Kimberly

Baumgarten may testify remotely.

1 I. Background

In its last ruling in this long-running antitrust dispute, the Court largely denied both

parties’ Cross-Motions for Summary Judgment, holding that the case “must go to trial.” FTC v.

Meta Platforms, Inc., 2024 WL 4772423, at *1 (D.D.C. Nov. 13, 2024). That day now

approaches. At the “main event,” id. at *20, the FTC is expected to press its case that Meta

“violated Section 2 of the Sherman Act through its acquisitions of Instagram and WhatsApp.”

Id. at *1. A “pivotal” question, over which the parties have spilled much ink, will be whether

Plaintiff can show that Meta enjoys monopoly power — i.e., a predominant market share in a

relevant product market, protected by barriers to entry. Id. at *8–9. If so, the FTC will also have

to show that Meta’s acquisitions of Instagram and WhatsApp were anticompetitive. Id. at *23–

24. In response, Meta may contest these assertions and offer procompetitive justifications for its

behavior. Id. at *23, *34.

Relevant to all of these questions — but particularly to those touching on the relevant

product market — is the testimony of individuals who have worked for technology companies

that Meta asserts are its competitors. Between them, the parties have thus issued trial subpoenas

to multiple such individuals, including witnesses who work at Alphabet Inc., Apple Inc., Discord

Inc., Nextdoor Holdings, Inc., Pinterest, Inc., Snapchat Inc., TikTok Inc., and X Corp., among

others. See Joint Mot. at 1 & n.1; Epic Mot. at 1; Snap Mot. at 1. In response, the nonparty

witnesses have filed an omnibus Joint Motion to Quash the trial Subpoenas, see Joint Mot., as

well as two more targeted Motions to Quash, see Baumgarten Mot.; Snap Mot., which the parties

have opposed. See ECF Nos. 497 (FTC Opp.), 499 (Meta Opp.). Those Motions are all now

ripe.

2 II. Legal Standard

Movants invoke Federal Rule of Civil Procedure 45 to quash the subpoenas. That Rule

“applies to both document and testimonial subpoenas, including subpoenas to third-party

witnesses called to testify at trial.” Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v.

Project Veritas Action Fund, 2022 WL 3655277, at *3 (D.D.C. Aug. 25, 2022) (quotation marks

omitted). It requires a district court to quash a subpoena that, inter alia, “requires a person to

comply beyond the geographical limits specified in [subsection] (c)” or “subjects a person to

undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(ii), (iv). Under subsection (c), a court may

“command a person to attend a trial . . . only . . . within 100 miles of where the person resides, is

employed, or regularly transacts business in person.”

The undue-burden analysis “mirrors the standard” for discovery under Rule 26. Stati v.

Republic of Kazakhstan, 2020 WL 3259244, at *4 (D.D.C. June 5, 2020). It “requires a court to

balance the interests served by demanding compliance with the subpoena against the interests

furthered by quashing it.” 9A Charles Alan Wright & Arthur R. Miller, Fed. Practice & Proc.

§ 2463.1 (3d ed. 2024 Update). To strike this balance, courts must consider several “potentially

relevant” factors, including whether the testimony sought is “unreasonably cumulative or

duplicative” or “proportional to the needs of the case,” and whether it “can be obtained from

some other source that is more convenient, less burdensome, or less expensive.” AFL-CIO, 2022

WL 3655277, at *3 (quotation marks omitted). “A party resisting a subpoena on undue burden

grounds cannot rely on a mere assertion that compliance would be burdensome and onerous

without showing the manner and extent of the burden and the injurious consequences of insisting

upon compliance with the subpoena.” Stati, 2020 WL 3259244, at *4 (quotation marks omitted).

3 III. Analysis

The Court starts by assessing the nonparties’ argument that the subpoenas impermissibly

exceed geographic limitations on their enforcement before considering whether they impose an

undue burden.

A. Geographic Limitation

Movants’ first line of attack is to invoke Rule 45(c)’s 100-mile limitation on compliance

with trial subpoenas. See Joint Mot. at 17. If that subsection governed here, then the Court

would indeed be powerless to compel the nonparty witnesses to testify at trial. See In re

Kirkland, 75 F.4th 1030, 1043–45 (9th Cir. 2023) (holding that Rule 45(c)’s geographical

restrictions also apply to remote video testimony). The FTC and Meta, however, argue that they

may compel the distant nonparty witnesses to testify under a provision of the Clayton Act that

authorizes nationwide service of trial subpoenas “on behalf of the United States” when a suit is

brought “under the antitrust laws” and “cause [is] shown.” 15 U.S.C § 23; see FTC Opp. at 3–7;

Meta Opp. at 3–5. They are correct.

To begin, the dispute “aris[es] under the antitrust laws” as that term is used in § 23

because the Complaint alleges that Meta violated Section 2 of the Sherman Act — a key pillar of

those laws. See ECF No. 76 (Sealed Am. Compl.), ¶¶ 230–41; see also Nashville Milk Co. v.

Carnation Co., 355 U.S. 373 (1958) (defining “antitrust laws” under Clayton Act to include

Sherman Act). Movants resist this conclusion by pointing to the fact that Plaintiff has sought

relief under Section 13(b) of the FTC Act — a statute that does not, on its own, count as part of

the “antitrust laws” mentioned by § 23. See Joint Mot. at 13; see also Nashville Milk, 355 U.S.

at 375–77 (not listing FTC Act); In re Coordinated Pretrial Proc. in Petroleum Prods. Antitrust

Litig., 782 F. Supp. 481, 484 (C.D. Cal. 1991) (“[U]nder the plain wording of the Clayton Act,

4 an action brought under the FTC Act is not an action to enforce the antitrust laws.”). Section

13(b), however, merely authorizes the FTC to seek injunctive relief whenever the agency “has

reason to believe” that, among other things, a corporation “is violating” “any provision of law

enforced by the” FTC. See 15 U.S.C. § 53(b)(1). While the “provision of law” the agency seeks

to enforce here is, as a formal matter, Section 5(a) of the FTC Act — which bans “[u]nfair

methods of competition,” see 15 U.S.C. 45(a) — that violation is itself premised on an allegation

of monopolization under Section 2 of the Sherman Act. See Sealed Am. Compl., ¶ 234. In other

words, Section 5 of the FTC Act and Section 2 of the Sherman Act are, in this suit, coextensive.

In such circumstances, “conduct prohibited by the antitrust laws [is] included within the reach”

of Section 5. In re Coordinate Pretrial Proc., 782 F. Supp. at 484; see FTC v. Cement Inst., 333

U.S. 683, 691–93 (1948) (Section 5 “includ[es] those restraints of trade which also were

outlawed by the Sherman Act.”). Indeed, it is black-letter law that a case may “arise under”

federal law for the purposes of federal-question jurisdiction even where it invokes only state-law

claims. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).

A case may likewise “arise under” the Sherman Act even though the formal cause of action is

found within the FTC Act. See FTC Opp. at 5–6.

Movants nonetheless insist that § 23 does not apply because it additionally requires

“proper application and cause shown” to authorize nationwide service of trial subpoenas.

According to them, nothing of the sort occurred here: good cause was simply “assume[d]” in the

Court’s March 2022 Scheduling Order. See Joint Mot. at 19–20 (emphasis in original); ECF No.

103 (Scheduling Order), ¶ 22 (“Good cause having been shown in view of the geographic

dispersion of potential witnesses in this action, the Parties will be allowed nationwide service of

process of discovery and trial subpoenas pursuant to Federal Rule of Civil Procedure 45 and 15

5 U.S.C. § 23 to issue from this Court.”). The Court, however, is aware of no authority holding

that the adoption of parties’ joint submission in a scheduling order is insufficient to meet § 23’s

good-cause requirement. On the contrary, the Court’s procedure is in line with what other courts

in this district have done. See, e.g., United States v. Google LLC, No. 20-3010, ECF No. 108-1

(Order), ¶ 29 (D.D.C Feb. 3, 2021); United States v. Anthem, Inc., 2016 WL 11164033, at *2

(D.D.C. Dec. 7, 2016) (referencing order); United States v. First Data & Concord EFS, Inc., 287

F. Supp. 2d 69, 72 (D.D.C. 2003) (order). The Court is thus satisfied that “cause” has been

“shown” for nationwide service of the subpoenas.

Because § 23 applies here, it displaces Rule 45(c)’s limitations. Both Movants and the

parties here simply assume this last step, but it presents a potential wrinkle: § 23 speaks only to

where subpoenas “may run” (i.e., service), while Rule 45(c)’s limitations apply to compliance

with those subpoenas. Those are, admittedly, different concepts. Compare, e.g., Rule 45(b)(2)

(authorizing nationwide service of subpoenas), with (c)(1)(A) (limiting compliance with trial

subpoenas to 100-mile radius). That issue, however, has not troubled other courts in this district.

See, e.g., Anthem, 2016 WL 11164033, at *2 n.1. And at least one other court elsewhere has

recently observed that while § 23 “has received little attention from the courts to date,” a “similar

provision of the False Claims Act” is much more litigated, and it has been found to include “a

nationwide enforcement authority.” FTC v. Kroger Co., 2024 WL 3400098, at *3 (D. Ore. July

12, 2024). That court and others have also noted that similarly worded rules and statutes “have

been assumed to confer nationwide enforcement power despite only speaking of service.” Id.

(citing Fed. R. Crim. P. 17(e) and Walsh Act, 28 U.S.C. § 1793(a)); see also United States v.

Wyeth, 2015 WL 8024407, at *2–3 (D. Mass. Dec. 4, 2015) (making this point in relation to

6 FCA). The Court will thus follow the weight of authority — lean though it may be — and hold

that § 23 supplants Rule 45(c)’s geographic restrictions in this case.

B. Undue Burden

Undeterred, the nonparty witnesses additionally argue that the subpoenas should be

quashed for the separate reason that they would impose an undue burden under Rule

45(d)(3)(A)(iv). See Joint Mot. at 21; Baumgarten Mot. at 3–4. “The quashing of a subpoena

is,” however, “an extraordinary measure,” which is “usually inappropriate absent extraordinary

circumstances.” U.S. Dep’t of Treasury v. Pension Benefit Guar. Corp., 301 F.R.D. 20, 25

(D.D.C. 2014) (quotation marks omitted). Neither “inconvenience,” Aristocrat Leisure Ltd. v.

Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 300 (S.D.N.Y. 2009) (quotation marks

omitted), nor a “busy schedule,” Johnson v. Jung, 242 F.R.D. 481, 486 (N.D. Ill. 2007), nor the

necessity of long-distance travel, see Anthem, 2016 WL 11164033, at *2 n.2, typically suffices

to demonstrate undue burden. Nor is it enough to point out that the trial testimony will

substantially overlap with prior deposition testimony. See Aristocrat Leisure, 262 F.R.D. at 301–

02. On the contrary, courts within this district have recognized the “long-standing preference for

live testimony.” Mazloum v. D.C. Metro. Police Dep’t, 248 F.R.D. 725, 728 (D.D.C. 2008).

Those principles doom Movants’ attempts to avoid their obligations to testify. All

nonparty witnesses have arguably relevant testimony from which the Court could benefit, and the

parties themselves have an incentive not to call irrelevant witnesses, as doing so wastes the time

allotted to each side to present its case. Although Movants here are indisputably busy people

with important careers and family obligations — and although no one enjoys crisscrossing the

country to testify in court — such concerns, if credited, would eviscerate the role of live

testimony for nationally important antitrust trials. The parties have also made significant efforts

7 to minimize the burden for those testifying, such as by accommodating their schedules to

determine specific days on which they will be called, calling them only once, and limiting the

length of the examinations. See Meta Opp. at 9; FTC Opp. at 9–10. The Court therefore holds

that the challenged trial subpoenas do not impose an undue burden and need not be quashed. It

acknowledges, however, that both parties have consented to remote testimony from Julia Tang,

Kimberly Baumgarten, and Ronak Shah, and the Court will permit such an accommodation in

light of the unique burdens faced by those witnesses. See Meta Opp. at 19, 23 (noting demands

of new motherhood, “specifically articulated and significant family responsibilities,” and

recovery from back injury); FTC Opp. at 2 (consenting to Tang and Shah and stating that

Baumgarten has yet to satisfy Rule 43(a), but not opposing her testifying remotely “in

principle”).

The same conclusion follows for the objections lodged by some nonparties to the

associated document requests. See Joint Mot. at 9–10 (Google), 15–16 (TikTok); Snap Mot. at

1. The requests in question are targeted and reasonably narrow, and, as the Court just held,

recent data (like those requested here) could not have been produced during fact discovery,

which closed in 2023. See ECF No. 503 (Order). Good cause thus exists to support their

admission. In addition, while Snap may have a corporate policy generally forbidding its

employees to access certain documents, such policy must yield to a court order. See United

States v. Int’l Bus. Machs. Corp., 71 F.R.D. 88, 91 (S.D.N.Y. 1976). The Court therefore will not

quash the document subpoenas.

8 IV. Conclusion

For the foregoing reasons, the Court will deny the nonparty witnesses’ Motions to Quash,

except insofar as the aforementioned witnesses (Tang, Baumgarten, and Shah) may testify

remotely. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: April 2, 2025