FTC’s Motion to Compel Discovery Planning Conference Denied in Facebook Divestiture Suit

The District of Columbia court overseeing a Facebook divestiture lawsuit shot down the opposed motion to compel discovery planning in a minute order on Tuesday. The action, filed in December 2020 by the Federal Trade Commission and attorneys general from most states, alleged that Facebook illegally monopolizes the social networking market and must be broken up.

Judge James E. Boasberg’s text entry explained that Facebook’s motion to dismiss “raises a number of serious challenges” to the complaint. He further explained that “it would be premature for the parties to discuss discovery until the contours of what, if anything, remains are known.”

The FTC moved to compel the Federal Rule of Civil Procedure 26(f) conference on April 22 after Facebook reportedly refused to set a date prior to the issuance of ruling on its motion to dismiss. The FTC stated that it sought to confer with Facebook and submit a proposal to the court regarding the start date for discovery, as well as all other relevant case management issues.

The FTC argued that Judge Boasberg should grant its motion because “a prompt Rule 26 conference will vindicate an important public interest in resolving government antitrust litigations promptly and in advance of related private cases, create efficiencies for all parties and many non-parties, and preserve scarce judicial resources.” The plaintiff acknowledged, however, that the district’s local rules do not require a Rule 26 conference until the defendant has filed an answer or the court rules on its motion to dismiss. 

On May 6, Facebook opposed the motion to compel, contending that the FTC’s suggestion that the local rules “do not apply or need not be followed is incorrect and unsupported by any authority.”

In his May 11 minute order, Judge Boasberg noted that he expects to issue an opinion next month on the now fully-briefed motion to dismiss. Because the decision is forthcoming, the order stated, “there is little possibility of delay adversely affecting Plaintiff.”

The FTC is represented by its own counsel and Facebook by Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C.