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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CHILDREN’S HEALTH DEFENSE,
Plaintiff,
v.
FACEBOOK, INC., et al.,
Defendants.
Case No. 3:20-cv-05787-SI
PLAINTIFF’S MOTION TO FURTHER
SUPPLEMENT ITS SECOND
AMENDED COMPLAINT AND FOR IN
CAMERA INSPECTION UNDER THE
ALL WRITS ACT; RITA SHREFFLER
DECLARATION AND EXHIBITS
F.R.C.P 15(d); 28 U.S.C. § 1651
Hearing Date: ______ __, 2021
NOTICE OF MOTION TO SUPPLEMENT THE SECOND AMENDED COMPLAINT
AND FOR IN CAMERA INSPECTION UNDER THE ALL WRITS ACT
PLEASE TAKE NOTICE THAT Plaintiff Children’s Health Defense (“CHD”) hereby
moves for leave to file a pleading supplementing its Second Amended Complaint (“SAC”) pursuant
to Fed. R. Civ. P. 15(d). Under the extraordinary circumstances presented in this case, CHD also
seeks an Order under the All Writs Act, 28 U.S.C. § 1651, for the Court to inspect in camera the
unredacted March 15, 2020 email proposal which Defendants Mark Zuckerberg and Facebook
tendered to Dr. Anthony Fauci, Director of the U.S. National Institute of Allergy and Infectious
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 1 of 10
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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Diseases and Chief Medical Adviser to the President, so that the Court may avoid a miscarriage of
justice, and fully and fairly adjudicate the pending Fed. R. Civ. P. 12(b)(6) motions.
STATEMENT OF REQUESTED RELIEF
In the last two weeks, new factual developments highly material to this case have taken
place. These new facts confirm that Defendants Facebook and Zuckerberg: (1) deliberately,
knowingly, and secretly embarked on a campaign to block speech and information according to a
COVID “vaccine hesitancy” algorithm1 regardless of the truth or falsity of that speech, even as
Facebook was proclaiming (falsely) to its users and the public that Facebook only blocked “false”
COVID vaccine-related content; (2) undertook through private communication with Fauci to work
directly with the federal government in connection with COVID-related information online, although
the full content of this joint activity is still secret as a result of redactions on recently released
documents. Accordingly, CHD respectfully requests leave to supplement the pleadings pursuant
Fed. R. Civ. P. 15(d) and requests judicial inspection under seal of the critical redaction.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION
Factual Statement
As this Court is well aware, this lawsuit alleges, inter alia, that Defendants have, and are
actively: (1) colluding with federal governmental actors to violate CHD’s free speech rights; (2) have
and are systematically censoring true online content and information while falsely stating that the
censored content is false; and (3), as set forth in CHD’s first Rule 15(d) supplemental pleading, have
entirely banished CHD’s founder and chair, Robert F. Kennedy, Jr., from a Facebook platform, for
posting true COVID and vaccine-related information while asserting falsely to the public that Mr.
Kennedy was being censored because he had posted false content. In the last two weeks, new factual
1
Facebook’s stated goal in implementing the algorithm is to “drastically reduce user exposure to
vaccine hesitancy (VH) in comments,” including by blocking or removing content from “dedicated
vaccine discouraging entities” classifiers. (Schreffler Dec. Exh. 3.)
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 2 of 10
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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developments that are material to these claims have occurred. Specifically:
On or about May 10, 2021, a high-ranking Facebook officer expressly admitted that, contrary
to Facebook’s public and official Policy Statement, which asserts that Facebook removes
COVID- and vaccine-related content only when such content is “false,” Facebook was
actually removing content critical of, or questioning the safety of, the COVID vaccines
regardless of whether that content was true or false. According to a Facebook vice
president, the company is “removing groups, pages and accounts that deliberately discourage
people from taking vaccines, regardless of whether the information can be verified as false
or not.” BBC News, The volunteers using “honeypot” groups to fight anti-vax propaganda,
May 10, 2021, https://www.bbc.com/news/blogs-trending-57051691 (emphasis added); cf.
Facebook, COVID-19 & Vaccine Policy Updates & Protections,
www.facebook.com/help/230764881494641 (repeatedly stating that Facebook removes
“false information” or “false claims” relating to COVID and vaccines).
On or about May 24, 2021, a Facebook whistleblower (subsequently fired) went public with
internal Facebook documents showing that, notwithstanding the company’s public
declarations that it censored only “false” vaccine-related claims, Facebook was (and is) in
fact systematically and covertly censoring true vaccine-related content, as well as mere
expressions of opinion, provided such content was (or is) deemed capable of leading to
“vaccine hesitancy.” See Project Veritas, BREAKING: Facebook Whistleblowers Expose
LEAKED INTERNAL DOCS Detailing New Effort to Secretly Censor Vaccine Concerns on a
Global Scale, May 24, 2021, https://www.projectveritas.com/news/breaking-facebook-
whistleblowers-expose-leaked-internal-docs-detailing-new. (Shreffler Dec. Ex. 2.)
On or about May 25, 2021, Facebook reversed its pre-existing ban on content suggesting that
COVID was “manmade or manufactured.” Cristiano Lima, Facebook no longer treating
‘man-made’ Covid as a crackpot idea, POLITICO, May 25, 2021,
https://www.politico.com/news/2021/05/26/facebook-ban-covid-man-made-491053. This
abrupt reversal followed on the heels of Fauci’s similar backtracking from his own earlier
dismissals of the hypothesis that COVID originated in a Wuhan laboratory. See Jonathan
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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Turley, Facebook says mentions of COVID-19’s possible origins in Wuhan are now allowed.
How generous, FOX NEWS, May 27, 2021, https://www.foxnews.com/opinion/facebook-
covid-19-origins-wuhan-jonathan-turley (“Now, however, President Joe Biden’s chief
medical adviser Dr. Anthony Fauci, and others have acknowledged that there is a basis for
suspect[ing] the lab as the origin of the outbreak. So now Facebook will allow you to talk
about it.”).
On or about June 3-4, 2021, Defendant Zuckerberg and Facebook Vice-President Heidi
Swarz essentially admitted in a video that the whistleblower-leaked documents were
authentic Facebook documents. https://www.youtube.com/watch?v=2S3246XJBOI. Neither
denied the existence of Facebook’s massive “vaccine hesitancy” censorship program, in
which content, including completely true information and/or expression of opinion, is
blocked or restricted if it criticizes or questions the safety, efficacy, or necessity of the
COVID vaccines. Id.
On or about June 1-5, 2021, a large number of previously undisclosed emails by or to Dr.
Fauci were released to the public as a result of Freedom of Information Act requests. One
such email, dated March 15, 2020, was written to Fauci by Defendant Zuckerberg, proposing
a collaboration related to COVID and vaccine-related information. See https://
www.documentcloud.org/documents/20793561-leopold-nih-foia-anthony-fauci-emails;
https://www.buzzfeednews.com/article/nataliebettendorf/fauci-emails-covid-response.
(Shreffler Dec. Ex. 3.) The email discloses to Fauci not-yet-public Facebook plans to launch
a COVID information “hub” that would be visible to all of Facebook’s billions of users and
proposes collaboration on that “hub” to help “get your message out.” Id. The full extent of
the proposed collaboration is, however, unknown because four critical lines have been
redacted. Id.
Referring to this portion of Zuckerberg’s email to Fauci, National Institutes of Health
communications director Courtney Billet sent Fauci an email (also just disclosed, but also
partially redacted) the next day, March 16, 2020, saying: “But an even bigger deal is his
[Zuckerberg’s] offer [CONTENT REDACTED]. The sooner we get that offer up the food
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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chain the better. I gave Bill a heads-up and he is standing by to discuss this with HHS and
WH comms, but I didn’t want him to do anything without you being aware of the offer. Is it
OK if I hand this aspect off to Bill to determine who the best point of contact would be so the
Administration can take advantage of this offer, soonest? Do you plan to call MZ? His cell
number is in his message below.” (Ex. 3.)
Fauci responded by email to Billet the following day, March 17, 2020: “I will write to or call
Mark and tell him that I am interested in doing this. I will then tell him that you will get for
him the name of the USG point of contact.” Id.
Fauci also responded to Zuckerberg that day, March 17, 2020: “Your idea and proposal
sound terrific. I would be happy to do a video for your hub. . . . Also, your idea about
[REDACTED] is very exciting. I am . . . copying the Director of my Communications and
Government Relations Group. She can put your people in touch with the best person who
could be the US Government point of contact for [REDACTED.]” (Id.)
All the redactions referred to in the above emails are notated “(b)(4)” (as the legal basis for
the redaction), indicating “trade secrets and commercial or financial information.” 5 U.S.C.
§ 552(b)(4).
ARGUMENT
A.
Second Request to Supplement the SAC
Federal Rule of Civil Procedure 15(d) “permit[s] a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” While a motion pursuant to Rule 15(d) is “addressed to the sound discretion of the
District Court,” United States v. Reiten, 313 F.2d 673, 675 (9th Cir. 1963), “leave to permit
supplemental pleading is ‘favored.’” Verinata Health, Inc. v. Sequenom, Inc., No. C 12-00865 SI, 2014
U.S. Dist. Lexis 67221 at * 6 (N.D. Cal. May 14, 2014) (quoting Planned Parenthood of So. Ariz. v.
Neely, 130 F.3d 400, 402 (9th Cir. 1997). In general, Rule 15(d) motions “should be granted ‘[u]nless
undue prejudice to the opposing party will result.’” LaSalvia v. United Dairymen of Ariz., 804 F.2d
1113, 1119 (9th Cir. 1986) (citation omitted).
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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The allegations set forth in a Rule 15(d) supplemental pleading need not arise from the same
“transaction” or facts set forth in the original pleading; instead, all that is required is a “relationship”
between the subject of the original pleading and the subsequently occurring facts. Keith v. Volpe, 858
F.2d 467, 474 (9th Cir. 1988) (“While some relationship must exist between the newly alleged matters
and the subject of the original action, they need not all arise out of the same transaction.”); Verinata
Health, Inc., supra at * 6.
The new facts alleged in CHD’s supplemental pleading readily pass this test. They bear not only
“some relationship” to the “subject of the original action,” Keith v. Volpe, 858 F.2d at 474, but a direct,
important, and supporting relationship to the crux of the claims made in the SAC.
First, the disclosure of Facebook’s secret “vaccine hesitancy” censorship program confirms and
further evidences CHD’s core allegation that Defendants covertly censor true COVID- and vaccine-
related information, as well as opinions critical of the COVID vaccines, while publicly claiming
(falsely) that their censorship of such content is based solely on factual falsity. This in turn bolsters the
plausibility of CHD’s central claim that Defendants have been—not to put too fine a point on it—lying
in their repeated assertions that CHD and Mr. Kennedy were censored because they posted false content.
The true reason why CHD and Mr. Kennedy have been censored, as further evidenced by the new
disclosures, is that their content is critical of, and reveals true information that could raise concerns
about, the COVID vaccines.
Second, Facebook’s abrupt decision to stop banning mentions of the COVID lab-leak hypothesis,
following Dr. Fauci’s similar about-face, confirms, further evidences, and makes more plausible CHD’s
allegations that: (1) Facebook has been banning true content while claiming such content to be false;
(2) Facebook has banned core protected speech (the hypothesis that COVID originated in a Wuhan
laboratory was and is as legitimate, as a matter of free speech, as Galileo’s hypothesis about the Earth’s
motion around the sun) under the pretext of restricting misinformation; and (3) that Facebook is acting
as a censor for the federal government, willfully participating in joint activity with federal officials to
decide what speech will and won’t be permitted on its platforms, banning information when federal
officials want it banned and permitting information when federal officials change their minds.
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 6 of 10
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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Third, the email exchange between Zuckerberg and Fauci further evidences and makes more
plausible CHD’s core allegation that Defendants actively and willfully participate in ongoing joint
activity with federal officials in the suppression of COVID- and vaccine-related speech. While the full
nature and extent of the collaboration proposed by Zuckerberg to Fauci in the March 15, 2020 email
cannot be known at this time—because it has been redacted— it is highly plausible to infer, given the
subject matter of the email (Facebook efforts to deal with COVID-related information), the timing of
Zuckerberg’s “offer,” the legal basis noted for redacting it, the importance attributed to it by
governmental officials, and the alacrity with which they responded, that: (a) the offer was acted upon;
and (b) that it concerned working together on Facebook’s efforts to censor COVID-related content.
The email’s timing is especially indicative of this conclusion. In March of 2020, the month
when Zuckerberg sent this email, Facebook was then intensely engaged in its early effort to devise
methods to “suppress misinformation about the Coronavirus.” Jeff Horwitz, Facebook Fights Hoaxes
and
Hysteria
in
Its
Virus-Themed
Groups,
WALL
ST.
J.,
Mar.
6,
2020,
https://
www.wsj.com/articles/facebook-fights-hoaxes-and-hysteria-in-its-virus-themed-groups-11583505221.
The next month, April 2020, as alleged in the SAC, Facebook would begin what became a concerted,
massive, system-wide program of monitoring COVID-related content and suppressing posts deemed
(often falsely) to be “misinformation.” Moreover, as further alleged in the SAC, Facebook would later
admit that in determining what COVID-related content counted as misinformation, Facebook was
“advised” by “public health authorities.” It is therefore plausible to believe that Facebook, as part of this
effort, was seeking assistance, advice, and collaboration between itself or its fact-checkers with federal
health organizations such as the CDC, HHS, or the NIH to identify for or with Facebook specific types
of information which those organizations wanted to be suppressed, that Zuckerberg was proposing such
a collaboration to Fauci, and that Fauci, through his reply to Zuckerberg, initiated this collaboration.
Indeed, as set forth in the SAC, Facebook began “fact-checking” CHD’s COVID-related posts almost
immediately after Zuckerberg's March 15, 2020 “even bigger deal” proposal, e.g., April 9, 2020 RFK,
Jr. post on Gates/vaccine development; April 16, 2020 flu vaccine and Coronavirus; April 16, 2020 Dr.
Montagnier origin of COVID; May 26, 2020 RFK, Jr. video on Fauci vaccines. (Dkt. 65-1 [SAC ¶¶ 125-
128, 151-155. 168-175, 189-190].)
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 7 of 10
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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This conclusion would also explain the legal basis offered for the redaction—that the redacted
content was a “trade secret”—because Facebook was then and is even today attempting to keep secret its
massive, evolving “vaccine-misinformation” surveillance and censorship program. The “trade secret”
redaction plausibly suggests that Zuckerberg was offering up a proprietary means to sift and siphon out
from the global dialogue that side which runs counter to the views of Fauci, the “WH,” or “HHS,” as
reflected in its “vaccine hesitancy classifier” score. As alleged in the SAC, and bolstered by these
supplemental allegations, Facebook has partnered from the very start with the federal government in its
COVID censorship regime. These allegations are of particular significance to Count 4 of the SAC,
which seeks declaratory relief to redress continuing harms and chilling effects on CHD’s exercise of
First Amendment rights. Facebook makes its censorship decision in concert with the government and
with what the government says is true and false. This is ongoing joint activity.
Plaintiff CHD is therefore entitled to supplement its pleading with these new factual disclosures
and to discovery of the collaboration between Facebook and the federal government to which the
Zuckerberg/Fauci email refers. Defendants can claim no surprise or prejudice in the addition of these
facts to the pleadings. The new facts involve actions taken by Defendants themselves and are thus within
Defendants’ own knowledge. Moreover, there can be no “prejudice” to Defendants in the legal sense
when their new acts furthering or evidencing the very same illegal courses of conduct originally pleaded
are brought before the Court.
B.
Request for In Camera Inspection of Zuckerberg-Fauci March 15, 2020 Email
Proposal
The All Writs Act, 28 U.S.C. § 1651, empowers the Court to issue all writs necessary or
appropriate “to assist [it] in conducting factual inquires.” Harris v. Nelson, 394 U.S. 286, 300 (1969)
(citation omitted); 28 U.S.C. § 1651 (“The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law"). Defendants seek dismissal with prejudice of CHD’s Bivens and
declaratory relief claims on the grounds that none of their challenged conduct is “fairly attributable” to
the federal government, Zuckerberg was not plausibly involved in any such conduct, and no amendment
could cure those deficiencies. (Dkt. 69 at 7, 26-8.) To resolve those potentially case-dispositive issues,
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 8 of 10
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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CHD asks that the Court lift the discovery stay for the limited but essential purpose of requiring
Facebook to lodge with the Court under seal an unredacted copy of the March 15, 2020 Zuckerberg-
Fauci email proposal. Having the authority to issue such an Order, the Court’s review of the four
unredacted lines of text in that single document in conjunction with its Rule 12(b)(6) adjudication is
both necessary and warranted. See also Jimenez v. City of Napa, 2017 U.S. Dist. LEXIS 93284, at *12
(N.D. Cal. 2017) (district court alluded to the “chicken or egg” problem that often occurs in the context
of Monell claims under 42 U.S.C. § 1983, and noted its practice to allow the plaintiff to make a prima
facie-type showing which would then permit some limited discovery prior to full adjudication of a
12(b)(6) motion.)
In Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004), the Supreme
Court set forth three conditions that must be satisfied before issuance of a writ under § 1651:
First, the party seeking issuance of the writ [must] have no other adequate means to attain
the relief he desires. . . . Second, the petitioner must satisfy the burden of showing that
[his] right to issuance of the writ is “clear and indisputable.” Third, even if the first two
prerequisites have been met, the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.
Id. at 380-81. CHD meets all three conditions for issuance of the writ. First, CHD has no other means to
furnish the Court with the unredacted Zuckerberg-Fauci March 15, 2020 email proposal given the pre-
discovery posture of the case. Second, the portion of that email which is now a matter of public record
contains at least a prima facie indication of joint action between Facebook and the federal government.
See e.g., Jiminez, 2017 U.S. Dist. LEXIS 93284, at *12 (leaving the door open to “narrow, focused
discovery” on Monell prior to adjudication of a Rule 12(b)(6) motion). Third, the writ is appropriate
under the circumstances because it is narrowly-tailored to CHD’s demonstrable need; it may avert a
potential miscarriage of justice should CHD’s case be dismissed with prejudice while Zuckerberg’s
proposal to Fauci remains secret and operative; and inspection under seal fully respects and accords
protection to whatever legitimate trade secret privilege Facebook may still possess in the redacted
portion of the document.
///
///
///
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Plaintiff’s Motion to Serve a Supplemental
Pleading and Request for In Camera Inspection
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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CONCLUSION
For the reasons stated above, Plaintiff CHD respectfully requests that the Court grant its motion
to supplement the pleadings pursuant to Fed. R. Civ. P. Rule 15(d), and for in camera inspection of the
unredacted March 15, 2020 Zuckerberg-Fauci email proposal.
Dated: June 7, 2021
Respectfully submitted,
ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense
MARY S. HOLLAND
General Counsel, Children’s Health Defense
ROGER I. TEICH
Counsel for Plaintiff
Children’s Health Defense
Case 3:20-cv-05787-SI Document 103 Filed 06/07/21 Page 10 of 10