U.S. Magistrate Judge Virginia DeMarchi for Northern California in San Jose scheduled an in-person hearing for Wednesday at 10 a.m. PDT on Meta’s Oct. 26 motion to compel discovery from non-party Apple, according to a text-only entry Saturday in docket 5:22-cv-04325. Meta served a subpoena on Apple for deposition testimony and production of certain documents said Meta’s motion. “While Apple has generally agreed to produce documents responsive to Meta's subpoena, it has refused to conduct the limited custodial searches that Meta has requested relating to several critical topics. Apple's objections based on over breadth, undue burden, proportionality, and relevance are meritless.” The discovery Meta seeks from Apple “is highly relevant” to Meta’s defense of the FTC’s lawsuit to block Meta’s Within Unlimited buy for antitrust reasons, said Meta.

The FTC’s amended complaint to block Meta’s Within Unlimited buy “sufficiently pleads that the proposed acquisition may substantially lessen competition,” said the agency’s response Thursday (docket 5:22-cv-04325) in opposition to Meta’s Oct. 13 motion to dismiss the case. Meta’s assertion that the FTC “has not alleged facts sufficient to support a claim” based on theories of anticompetitive harm in the long history of antitrust case law “ignores the statutory authority under which the FTC proceeds in this matter,” it said. The FTC brought the case “to obtain interim, injunctive relief to preserve the status quo to protect the Commission’s ability to conduct its administrative adjudicatory proceeding on the merits,” it said. “The ultimate merits issue as to which the FTC must raise substantial questions is not whether the acquisition will substantially lessen competition” but whether there is a reasonable probability of anticompetitive effect from the acquisition, it said. “The FTC has done just that with respect to its allegations of harm to actual potential competition and perceived potential competition.” Meta’s arguments to the contrary “ignore the FTC’s burden, and instead discuss (or invent) issues relevant to the ultimate merits of claims brought directly under Section 7 of the Clayton Act,” it said.

Meta moved Wednesday for an order to compel the FTC to sit for a deposition in the agency’s lawsuit to block Meta’s Within Unlimited buy. “The FTC has taken the extreme position of refusing to produce any representative for a Rule 30(b)(6) deposition on the FTC’s product market and competitive effects allegations, as well as on issues of agency bias that infect this lawsuit,” said Meta in a joint statement with the FTC (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose on the status of their deposition dispute. The mention of agency bias refers to Meta’s efforts to seek the recusal of FTC Chair Lina Khan. “The FTC’s objections are not supported by law,” and they “substantially prejudice” Meta “in this expedited proceeding where there is no legitimate basis for the FTC to continue withholding highly relevant information at the close of fact discovery,” said the company. The FTC countered that having previously issued a “facially overbroad and otherwise defective” deposition notice covering 31 topics, Meta issued an amended notice on Oct. 19, a week before the close of fact discovery. The amended notice “suffers from the same defects” as the original because it “impermissibly” seeks to depose FTC attorneys on “privileged matters,” and because it seeks testimony that is “unreasonably” duplicative of information that’s already in Meta’s possession.

Meta’s request that Snap produce certain documents in the FTC’s lawsuit is an “enormous” burden that would require the disclosure of competitively sensitive documents with marginal relevance in the case, Snap said in a filing Thursday in 1:20-cv-03590 before the U.S. District Court for the District of Columbia. Some of Meta’s demands are massively overbroad and designed to sweep in plainly irrelevant, yet highly sensitive, material,” Snap said of Meta’s request for 46 numbered requests with 150 sub-portions. Snap asked the court to require the production of highly sensitive documents with an “outside counsel eyes’ only” designation and order Meta to pay Snap’s compliance costs. The documents are necessary for Meta to show the “significant” competition from Snap, Meta said in its own filing, accusing Snap of “stonewalling and delaying.” Meta criticized Snap’s first attempt to block all document production before offering a “take-it-or-leave-it” offer to produce a handful of documents with numerous, inappropriate conditions. Meta asked the court to order Snap to produce “highly relevant” documents.

The FTC is backing Meta’s Oct. 17 administrative motion to keep under seal the materials the agency designated as confidential in a joint statement of recent decision that same day alerting the court that Meta’s petition for the recusal of FTC Chair Lina Khan in the agency’s review of Meta’s Within Unlimited buy is pending before the commission. Now under “provisional seal” are “specified portions” of the joint statement, the entirety of Exhibit B to the joint statement and two lines from the declaration accompanying the joint statement that describe the contents of Exhibit B, said the FTC. There is “good cause” to keep the information confidential, said the FTC Monday in a statement of support (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. “The public interest weighs heavily in favor of keeping the material at issue under seal” because it is covered by an FTC protective order and confidentiality rules in a “pending administrative case,” it said. “The FTC’s administrative confidentiality procedures warrant deference,” it said. The commission will “suffer injury” if the sealing request is denied, it said. “A less restrictive alternative to sealing would not be sufficient, because it would result in public release of information that is protected by the deliberative process privilege,” it said.

Plaintiffs in the antitrust class action to overturn T-Mobile's buy of Sprint “hammered out an agreement in principle” with T-Mobile to begin “some limited foundational discovery” in the case, plaintiffs’ attorney Brendan Glackin of Lieff Cabraser told U.S. District Judge Thomas Durkin in Northern Illinois in a telephonic status hearing Friday. Seven AT&T and Verizon customers brought the class action, saying the transaction caused their rates to skyrocket through reduced competition in the wireless space. Durkin on Oct. 7 denied T-Mobile’s motion to transfer the case to the Southern District of New York, where U.S. District Judge Victor Marrero wrote the early-2020 opinion that enabled the deal to go forward (see 2210110003). The case has been somewhat in limbo as the plaintiffs work to serve court papers on a foreign defendant, Deutsche Telekom, through “diplomatic channels,” said Glackin. He still anticipates the process will be complete by January, he said. Durkin asked the parties to file a joint motion summarizing their agreement to proceed with limited discovery. T-Mobile attorney Rachel Brass of Gibson Dunn said her client will withdraw as “moot” its pending motion to stay the case, pending service on overseas defendants, as soon as Durkin accepts the joint motion. The judge set the next telephonic status hearing for Jan. 27.

The FTC wants the court to compel Meta “to produce all non-privileged information responsive to the FTC’s discovery requests” in the agency’s lawsuit to block Meta’s Within Unlimited buy on anticompetitive grounds, said its motion Wednesday (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The two sides “have met and conferred extensively but were unsuccessful in resolving the disputes,” it said. Among the disputed FTC interrogatories is one that seeks information about virtual reality dedicated fitness products that have applied, or sought to apply, to be carried in Meta’s Quest Store, plus the dates and dispositions of those applications, said the motion. Meta’s response “is a massive data production that is both overbroad and underinclusive,” it said.

The 9th U.S. Circuit Court of Appeals will hold oral argument in Epic Games v. Apple Nov. 14 at 2 p.m. PST in San Francisco, the court said Wednesday. Oral argument in the case was previously scheduled for this Friday before being postponed.

FTC Chair Lina Khan declined to recuse herself in the agency’s lawsuit against Meta’s acquisition of Within Unlimited, so the remaining commissioners will vote on whether she can further participate in the case, according to court filings announced Tuesday in 5:22-CV-04325 before the U.S. District Court for Northern California (see 2209260069). The FTC informed the court of its pending vote in a filing dated Oct. 6. Commissioner Noah Phillips formally left the agency last week, creating a 3-1 Democratic majority for Khan.

The U.S. District Court for Northern California set a hearing for Feb. 23 on Meta’s Oct. 13 motion to dismiss the FTC’s amended complaint, said a text-only entry Monday in docket 5:22-cv-04325. A virtual conference is scheduled for Friday on the FTC’s motion to strike some of Meta’s affirmative defenses. The FTC is suing to block Meta’s Within Unlimited buy on anticompetitive grounds. The agency fails to present facts establishing a “concentrated market with high barriers to entry,” said Meta’s motion for dismissal (see 2210130082).