Declaration of Roger I. Teich, Counsel for Children's Health Defense — Children's Health Defense v. Facebook, Case 3:20-cv-05787, Doc. 84-1 (Filed 03/29/21)

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             Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 1 of 19



 1 ROGER I. TEICH
   California State Bar No. 147076
 2 290 Nevada Street
   San Francisco, CA 94110
 3 Telephone: (415) 948-0045
   E-Mail Address: rteich@juno.com
 4
   ROBERT F. KENNEDY, JR.
 5 MARY HOLLAND
   Children’s Health Defense
 6 1227 North Peachtree Parkway, Suite 202
   Peachtree City, GA 30269
 7 Telephone: (917) 743-3868
   E-Mail Address: mary.holland@childrenshealthdefense.org
 8
   Attorneys for Plaintiff
 9 CHILDREN’S HEALTH DEFENSE

10                                   UNITED STATES DISTRICT COURT

11                                NORTHERN DISTRICT OF CALIFORNIA

12                                       SAN FRANCISCO DIVISION

13
     CHILDREN’S HEALTH DEFENSE,
14
                                                          Case No. 3:20-cv-05787-SI
                   Plaintiff,
15
                                                          ROGER TEICH REPLY DECLARATION
            v.
16                                                        IN SUPPORT OF MOTION TO
                                                          SUPPLEMENT SECOND AMENDED
17 FACEBOOK, INC., et al.,                                COMPLAINT
18                 Defendants.
19
20          I, Roger Teich, declare as follows:
21          1.     I am a member of the State Bar of California and the Bar of the United States District
22 Court for the Northern District of California, and counsel for Plaintiff Children’s Health Defense

23 (“CHD”) in this action. This declaration is made in support of CHD’s Reply re: Motion to Supplement

24 Second Amended Complaint. If called as a witness, I could and would testify competently to the facts

25 herein, except as to those matters stated on information and belief.

26          2.     Attached hereto as Exhibit “1” are true and correct copies of Mr. Kennedy’s written offer
27 to have his matter heard by Facebook’s Oversight Board which was made on February 24, 2021, but

28 only responded to by Facebook on March 16, 2021.

                                                    1                           Roger Teich Declaration ISO
                                                                            Stipulation and [Proposed] Order
                                                                CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
             Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 2 of 19



 1         3.      On information and belief, Mr. Kennedy attempted to lodge his submission with the

 2 Oversight Board earlier today. It remains far from clear whether he will be notified of its receipt, much

 3 less whether or not, or when his matter may be heard there.

 4         4.      On information and belief based on discussion with Ms. Michelle Ford, the third-party

 5 user, and examination of the warning notice, Facebook itself did not identify to Ms. Ford, the particular

 6 CHD post or posts she had “liked” or shared that purportedly violated Facebook’s terms. Since

 7 Facebook has retroactively removed multiple CHD posts, the information sufficient to identify the

 8 specific post or posts in question remains in Defendants’ sole possession, custody, or control.

 9           5.    Attached hereto as Exhibit 2 are true and correct copies of my preservation letters to

10 Facebook’s counsel, dated September 23, 2020 and March 24, 2021; Facebook’s counsel letter, dated

11 December 4, 2020, and an excerpt of the parties’ Rule 26(f) telephonic meet and confer, dated

12 November 2, 2020. Facebook has not responded to my March 24, 2021 letter.

13         I declare under penalty of perjury under the laws of the United States that the foregoing is true

14 and correct to the best of my knowledge and that this declaration was executed in San Francisco,

15 California, on March 29, 2021.

16

17

18
                                                 ROGER I. TEICH
19
                                                 Counsel for Plaintiff
20                                               Children’s Health Defense
21

22

23

24

25

26
27

28

                                                    2                            Roger Teich Declaration ISO
                                                                             Stipulation and [Proposed] Order
                                                                 CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 3 of 19




   EXHIBIT 1
        Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 4 of 19




                                   Roger I. Teich
                                     Attorney at Law
                                    290 Nevada Street
                              San Francisco, California 94110

                                   Telephone: (415) 948-0045
                                    Email: rteich@juno.com


                                          February 24, 2021

BY EMAIL ONLY

Ms. Sonal N. Mehta
WilmerHale, LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306

      Re:     CHD v. Facebook, et al., 3:20-cv-05787-SI
              RFK, Jr. and Facebook/Instagram

Dear Sonal,

I am writing with regard to Facebook’s decision to take down Robert F. Kennedy, Jr.’s
Instagram account earlier this month. It’s challenging not to view this decision as an
escalation of Facebook’s conduct underlying our existing dispute. We were particularly
dismayed by Facebook’s gratuitous and inaccurate statement that Mr. Kennedy has
“repeatedly shared debunked claims about the coronavirus or vaccines” and we ask that
you retract that. We also note the spate of recent articles that makes more explicit than
ever the role of Facebook as a government surrogate in the censorship of Mr. Kennedy.
See e.g., Jesse O’Neil, White House working with social media giants to silence anti-
vaxxers, NEW YORK POST (Feb. 19, 2021), https://nypost.com/2021/02/19/white-house-
working-with-social-media-to-silence-anti-vaxxers/; Nandita Bose, Exclusive: White
House working with Facebook and Twitter to tackle anti-vaxxers, REUTERS (Feb. 20,
2021), https://www.reuters.com/article/health-coronavirus-white-house-exclusive-
idINKBN2AK0HP; Glenn Greenwald, Congress Escalates Pressure on Tech Giants to
Censor More, Threatening the First Amendment. SUBSTACK (Feb. 20, 2021)
(https://greenwald.substack.com/p/congress-escalates-pressure-on-tech).

However, we understand that Facebook has recently implemented an internal appeals
process. In an effort to reach a resolution of Mr. Kennedy’s deplatforming from
Instagram while avoiding escalation of this legal dispute, we believe it to be in the
interests of all parties that Mr. Kennedy pursues Facebook’s internal appeals process of
his Instagram removal. Mr. Kennedy has attempted to commence that process. We would




                                                                                  Exhibit 1
        Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 5 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
February 24, 2020
Page 2 of 2



ask that you agree to a tolling agreement so that we may pursue this alternative to
litigation without prejudice.

I also request your guidance and, if necessary, intervention, to assure that Mr. Kennedy
has access to Facebook’s internal appeal process. Presumably due to their novelty, the
procedures for applying for an appeal to the Facebook Oversight Board are somewhat
ambiguous. For example, Facebook's published procedures provide that the appeal’s
initial petition -- the “review request” -- should be filed on the Instagram account.
However, because Instagram deactivated his account, Mr. Kennedy has no access to the
function to submit that request. Mr. Kennedy has therefore tried to file his appeal using
his Facebook account. However, Facebook has not given us the promised response to this
review request. We cannot determine whether his request for review of that decision has
been received. We request your help in confirming with your client that: (1) Mr.
Kennedy’s appeal is properly filed; and (2) that it will be heard.

We also are having trouble performing the data download of Mr. Kennedy’s historic
posts (including the flagged posts) in order to prepare Mr. Kennedy’s appeal to the
Oversight Board. The Facebook rules instruct that appellants have a right to a data
download after deactivation, but Mr. Kennedy’s download appears to be blocked.

Finally, we understand that Facebook has the capacity to refer particular cases to its
Oversight Board on an automatic and expedited basis within 30-days. (Bylaws Art. 2, §
2.1.2.) We would ask you to urge your client that Mr. Kennedy’s case warrants such
expedited referral. His case is exceptional, and more than meets the criteria for selection
set forth in the bylaws of the Oversight Board.

Because of tight deadlines set by Facebook’s procedures, we would appreciate hearing
from you within 48-hours. As to any and all of these matters, all rights are expressly
reserved.

                                                 Sincerely,



                                                 Roger Teich




                                                                                      Exhibit 1
         Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 6 of 19




March 16, 2021                                                                         Sonal N. Mehta
                                                                                      +1 650 600 5051 (t)
By E-mail                                                                             +1 650 858 6100 (f)
                                                                             sonal.mehta@wilmerhale.com

Roger I. Teich, Esq.
290 Nevada Street
San Francisco, CA 94110
rteich@juno.com

Re: Children’s Health Defense v. Facebook, No. 3:20-cv-5787-SI (N.D. Cal.)

Dear Roger,

       I am writing in response to your February 24, 2021 letter concerning Facebook’s decision
to terminate Mr. Kennedy’s Instagram account.

        At the outset, I note that your and Ms. Holland’s repeated requests for information
relating to Mr. Kennedy’s Instagram account as somehow connected to the claims by CHD in
this action are odds with your emphatic assertions on our March 15 teleconference that it is not
CHD, but Mr. Kennedy, who intends to pursue action regarding his Instagram account. Are you
representing Mr. Kennedy in his individual capacity as it relates to his Instagram account? Is Ms.
Holland? Given the nature of your requests, we would like to understand your role and who
among you, if anyone, is representing Mr. Kennedy. Subject to receiving that information, I
provide preliminary responses to the questions you have raised.

       First, you asked us to help track down whether an appeal has been properly filed. We
have not been able to determine the status of any appeal. Indeed, based on our investigation, our
understanding is that Facebook is not given visibility into the status of user appeals to the
Oversight Board (the “Oversight Board”). To the extent Mr. Kennedy believes he has submitted
such an appeal, you may wish to follow-up with him directly on the status.

        Second, the Oversight Board is an independent body comprised of 40 members from
around the world who review certain content-removal decisions and issue binding opinions on
whether those decisions should be upheld or reversed. The Oversight Board operates as a
separate legal entity and is not administered by Facebook. The Oversight Board accepts only a
limited number of cases for review. Facebook and Instagram account holders may appeal
content-removal decisions to the Oversight Board within 15 days of the date that Facebook or
Instagram issues its final content policy decision for a particular piece of content. Additional
information about the Oversight Board and instructions on how to submit a case for
consideration may be found here: https://www.oversightboard.com/.

       With respect to your request that we urge Facebook to consider Mr. Kennedy’s appeal on
an expedited basis, that request is for the Oversight Board, not for Facebook. See Oversight
Board Charter, art. 3, § 7.2. In any case, we note that we received your letter nearly two weeks




                                                                                               Exhibit 1
         Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 7 of 19




Roger I. Teich, Esq.
March 16, 2021
Page 2


after Mr. Kennedy’s Instagram account was terminated. In light of that delay, it is unclear how
this issue constitutes the sort of urgent circumstances that your letter alludes to.

        Third, we have consulted with Facebook with respect to your concern that Mr. Kennedy
has had difficulty downloading the data associated with his Instagram account. Facebook
provides its users with tools to download their own posts, but those tools are not accessible if the
user’s account has been suspended. Of course, Mr. Kennedy should have knowledge of his own
posts.

         Finally, as to your request for a tolling agreement, it is unclear what claims you believe
may need to be tolled. Indeed, although you have repeatedly stated that Mr. Kennedy is planning
to file an original action, you have never articulated what Mr. Kennedy’s claims are. Without
that information, we cannot evaluate whether any deadlines are approaching such that a tolling
agreement may be necessary.



                                              Sincerely,




                                              Sonal N. Mehta



cc:    Ari Holtzblatt




                                                                                            Exhibit 1
Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 8 of 19




   EXHIBIT 2
        Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 9 of 19




                                   Roger I. Teich
                                     Attorney at Law
                                    290 Nevada Street
                              San Francisco, California 94110

                                   Telephone: (415) 948-0045
                                    Email: rteich@juno.com


                                                    September 23, 2020

BY EMAIL ONLY

Ms. Sonal N. Mehta
WilmerHale, LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306

      Re:     CHD v. Facebook, et al., 3:20-cv-05787-SI
              Request for Meet and Confer

Dear Sonal,

I write to request a meet and confer within the next seven days to discuss two urgent
matters in the above-entitled action.

      1. Updated § 3.2

On August 17, 2020, Children’s Health Defense (“CHD”) filed this action against the
Facebook, et al., in the district court. On or about August 31, 2020, CHD received notice
that Facebook intends to modify the parties’ contractual terms of service §3.2, “effective
October 1, 2020,” to read: “We also can remove or restrict access to your content,
services, or information if we determine that doing so is reasonably necessary to avoid or
mitigate adverse legal or regulatory impacts to Facebook.”

On September 9, 2020, I asked you to stipulate that Facebook will not seek to apply its
purported amendment of §3.2 to CHD during the pendency of this litigation. I also
expressed that CHD has concerns about Facebook’s ESI retention protocols in this case
for which the Local Rules contemplate a specific meet and confer. On September 14,
2020, your colleague Ari Holtzblatt responded that “[b]efore we schedule a call to discuss
the update to Section 3.2 of Facebook’s Terms of Service, it would help us if you could
explain more specifically what about the update concerns you. In particular, could you
explain why you believe CHD could run afoul of the new policy or why CHD otherwise
fears that Facebook is likely to enforce this particular policy against CHD? “




                                                                                   Exhibit 2
       Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 10 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 2 of 4



In its First Cause of Action, CHD alleges that Facebook, acting with significant
encouragement from and in close consultation with governmental agencies and actors,
denied CHD’s First Amendment speech rights and Fifth Amendment property rights inter
alia, by censoring, labeling, or blocking CHD content from users,. (Dkt. #1 at 67-73.)
The Court is thus asked to adjudicate whether Facebook should be considered a “state
actor” for purposes of the claim in light of its alleged joint action with the federal
government. Within just two weeks of service of the lawsuit alleging this claim,
Facebook recast §3.2 so that, as of October 1, 2020, it can remove or restrict access to
content, services, or information “to avoid or mitigate adverse legal or regulatory impacts
to Facebook.” (Updated §3.2.)

We believe that any application of §3.2 to CHD during the pendency of this lawsuit will
constitute unlawful retaliation for CHD’s protected conduct in filing the action. Close
proximity in time between a protected activity and an adverse action alone will establish
a prima face case of retaliatory causation. Facebook’s amendment of §3.2 so close on the
heels of CHD’s lawsuit will be viewed with great suspicion by the Court as evidence that
Facebook is retaliating for filing the action. Since Facebook has not removed CHD
content under its current §3.2, we doubt that Facebook could rebut the inference that it
would have done so on October 1 or thereafter in the absence of CHD’s protected activity
in filing the lawsuit. Absent a stipulation which removes this issue from doubt, CHD can
show a sufficient chilling effect from the bare terms of amended §3.2 to warrant
emergency relief. Hopefully, resort to court will not be necessary.

       2. ESI-Retention Protocols

As you know, the Court expects cooperation on issues relating to the preservation,
collection, search, review, and production of ESI. The Court emphasizes the particular
importance of cooperative exchanges of information at the earliest possible stage of
discovery, including (but not exclusively) during the parties’ Fed. R. Civ. P. 26(f)
conference. Moreover, parties are not required to use preservation letters to notify an
opposing party of their preservation obligation. See Northern District ESI Guideline 1.02,
2.01(c); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (litigants
are under a duty to preserve “what [they know], or should know, is relevant to the action,
is reasonably calculated to lead to the discovery of admissible evidence, is reasonably
likely to be requested during discovery and/or is the subject of a pending discovery
request.”).



                                                                                   Exhibit 2
          Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 11 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 2 of 4


We maintain that Facebook’s preservation obligation requires that it interdict and
suspend any document destruction programs, such as ongoing erasures of e-mails,
voicemails, and other electronically-recorded material, and specifically preserve:

   (1)      All design documents for all systems related to “misinformation,” censorship,
            and boosting/reduction of traffic, including boosting sources deemed
            “authoritative”;

   (2)      All related internal employee communications;

   (3)      All related internal tracking systems;

   (4)      All records for deployment of those designs;

   (5)      All web traffic measurements for CHD, CDC, and WHO;

   (6)      All internal employee communications regarding “misinformation” strategies,
            including communications with third-parties, external providers, and/or
            government/public health officials;

   (7)      All Chan-Zuckerberg Initiative and/or CZ-Biohub internal documents
            concerning vaccine strategy and revenue projections, and partnerships;

   (8)      All internal documents regarding 5G development and revenue projections;

   (9)       All internal weblog dialogue discussion groups concerning “misinformation,”
            “vaccines,” and “5G”;

   (10)     All internal documents concerning GlaxoSmithKline (“GSK”), Sanofi S.A.
            (“Sanofi”), Pfizer, and Merck & Co. (“Merck”), pharmaceutical company
            partnerships, strategic initiatives, and revenue projections; and

   (11)     All source code for the relevant systems described above.

While not exhaustive, this list is intended to inform you of the types of documents that
are potentially relevant to the litigation, and should be preserved.



                                                                                 Exhibit 2
       Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 12 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
September 23, 2020
Page 4 of 4



However, given the opaqueness of Facebook’s policy statements, we cannot tell whether
any of this or other material evidence in Facebook’s possession will automatically be
destroyed or become inaccessible if Facebook implements its amended §3.2 to CHD on
or after October 1, 2020, or otherwise. This situation urgently needs to be addressed.

Assuming we can reach an agreement that obviates the potential for emergency relief
referenced above, and concomitant expedited discovery and trial dates, we are willing to
continue the case management conference and discovery until your motion to dismiss is
resolved, provided also that we reach an agreement on ESI-retention protocols for the
information referenced above which clearly bears on CHD’s claims for relief.

Please let me know your availability to meet and confer by telephone by close of business
next Wednesday, September 30, 2020. I look forward to speaking with you then.

                                               Sincerely,



                                               Roger Teich




                                                                                 Exhibit 2
Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 13 of 19




                                                               Exhibit 2
Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 14 of 19




                                                                   Exhibit 2
         Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 15 of 19




December 4, 2020                                                                          Sonal N. Mehta
                                                                                         +1 650 600 5051 (t)
By E-mail                                                                                +1 650 858 6100 (f)
                                                                                sonal.mehta@wilmerhale.com

Roger I. Teich, Esq.
290 Nevada Street
San Francisco, CA 94110
rteich@juno.com

Re: Children’s Health Defense v. Facebook, No. 3:20-cv-5787-SI (N.D. Cal.)

Roger,

      I am writing in response to your November 18, 2020 email and to follow up on our
October 30 and November 3, 2020 meet-and-confer telephone calls concerning Facebook’s and
Mark Zuckerberg’s efforts to preserve information that may be relevant to Children’s Health
Defense’s (“CHD”) claims in the above-captioned action.

        At the outset, I want to be clear that my clients are taking the actions described below in
the interest of avoiding burdening the Court at this early phase of the case, particularly in light of
Judge Illston’s expressed preference that the parties cooperate with each other to resolve disputes
rather than seeking judicial intervention. See ECF No. 48 at 2. By preserving the information
described below, neither Facebook nor Mr. Zuckerberg concedes that they are obligated under
the Federal Rules of Civil Procedure or the Local Rules for the Northern District of California to
preserve this information. Nor do my clients concede that such information is relevant to CHD’s
claims, that its production is proportionate to the needs of the case, or otherwise within the
proper scope of discovery in this matter under Federal Rule of Civil Procedure 26. Furthermore,
both Facebook and Mark Zuckerberg reserve all rights to object to any future preservation or
production requests by CHD on any applicable ground.

        During our meet-and-confer calls, you asked us to confirm that Facebook is preserving
information concerning advertising purchases by pharmaceutical companies and communications
with pharmaceutical companies concerning vaccine hesitancy. The core relationship managers
for the four companies you identified (Merck, Pfizer, Sanofi, and GlaxoSmithKline) are all on
Facebook’s litigation hold. Facebook is also taking reasonable steps to preserve available data
concerning vaccine-related ads placed in the U.S. market by those companies.

        You also asked during our meet-and-confers that Facebook confirm that it was preserving
documents relating to internal efforts to test the effectiveness of various efforts to address posts
identified as containing vaccine misinformation. These materials are within the categories of
information covered by Facebook’s litigation hold, which has been sent to appropriate
individuals.




                                                                                                  Exhibit 2
        Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 16 of 19




Roger I. Teich
December 4, 2020
Page 2


        Turning to your November 18 email, you asked for confirmation that Facebook was
preserving web traffic information and analytics concerning CHD’s Page. Facebook is taking
reasonable efforts to preserve available information concerning traffic to CHD’s Page and click-
throughs to the CDC’s website and to the various explainer articles drafted by Facebook’s third-
party fact-checkers.

        Your November 18 email also inquired about the status of preservation efforts at Chan-
Zuckerberg Institute (“CZI”) and Chan-Zuckerberg Biohub (“CZB”). In light of our discussions,
we are sending a letter on behalf of Mr. Zuckerberg to both entities, requesting that they take
reasonable steps to preserve information in their possession, dated January 1, 2017 to the present,
related to (1) any internal development of vaccines, (2) any partnerships with or funding
provided to third parties for purposes of development of vaccines, (3) any internal research into,
or funding provided to third parties for the purpose of researching, vaccine hesitancy. As with
the other information provided in this letter, the fact that we are sending such a letter should not
be interpreted as a concession that these materials are relevant to or discoverable in this action.
It remains Mr. Zuckerberg’s position that he does not have sufficient control over these non-
party entities for their materials to fall within the scope of his own discovery obligations, and
that the activities of CZI and CZB are irrelevant to CHD’s claims for relief in this case. We do
not represent either CZI or CZB.

      I hope this letter resolves any remaining concerns you have about the scope of
Facebook’s and Mr. Zuckerberg’s preservation efforts.

                                              Sincerely,




                                              Sonal N. Mehta



cc:    Ari Holtzblatt
       Molly Jennings




                                                                                           Exhibit 2
        Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 17 of 19




                                    Roger I. Teich
                                      Attorney at Law
                                     290 Nevada Street
                               San Francisco, California 94110

                                    Telephone: (415) 948-0045
                                     Email: rteich@juno.com


                                                     March 24, 2021

BY EMAIL ONLY

Ms. Sonal N. Mehta
WilmerHale, LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306

       Re:    CHD v. Facebook, et al., 3:20-cv-05787-SI
              Meet and Confer Request re: Defendants’ Preservation Agreement

Dear Sonal,

I write in response to your March 15, 2021 email concerning the scope of Defendant
Facebook, Inc.’s and Mark Zuckerberg’s ongoing duty to preserve all evidence in their
possession, custody, or control concerning the facts and circumstances referred to in
Plaintiff Children’s Health Defense’s (“CHD”) Motion to File Supplement to Second
Amended Complaint (“SAC”) (Dkt. #76).

In answer to your query on Exhibit 6 (the third-party “unfollow CHD” warning label and
icon), we set forth here our understanding of the context of that evidence and your
clients’ attendant preservation obligations. First, Facebook did not identify for the third-
party user the particular CHD post or posts she had “liked” that purportedly violated its
terms. Since Facebook has retroactively removed multiple CHD posts, the information
sufficient to identify the specific post or posts in question remains in Defendants’ sole
possession, custody, or control, which have the obligation to preserve that information.
This includes, but is not limited to, data linking particular CHD posts with control
mechanisms that blacklist and warn third-party users who “like” or share such posts.

More broadly, CHD contends that Exhibit 6 is just the tip of the iceberg measured against
the full extent to which Defendants have disseminated and are disseminating “unfollow
CHD” warning labels and icons to third-party Facebook users on CHD’s page and
elsewhere.




                                                                                     Exhibit 2
       Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 18 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
March 24, 2021
Page 2 of 3



Indeed, this appears to be just the latest that we know about in a series of escalating
Facebook attacks for which CHD seeks monetary and injunctive relief in its SAC. Thus,
in answer to your request that we identify what information should be preserved, we refer
you to our earlier itemization and Defendants’ earlier agreements. See e.g., my September
23, 2020 letter and your December 4, 2020 response. Additionally, regarding Defendants’
underlying conduct of which the Exhibit 6 warning label is but one instance, Defendants
must preserve all information and documents within the following categories:

      1.     Facebook’s algorithms for identifying third-party users for any warning
             notifications, including all past iterations of such algorithms and warning
             labels that were used.

      2.     The corpus of data used to generate such algorithms and to measure their
             effectiveness.

      3.     All discussions, paper or electronic artifacts (i.e., “change-sets”), and
             design documents related to Facebook’s development of such algorithms.

      4.     All communications with government actors or outside private entities,
             including but not limited to public health officials, on the development of
             such algorithms, or related “misinformation” strategies, and development of
             infrastructure used to deal with purported “misinformation.”

      5.      All source code used to generate such algorithms.

      6.     All statistical analyses, experiments, and any A/B testing concerning or
             used to validate such algorithms.

      7.     All third party user traffic reductions that were collected to validate or
             demonstrate that “vaccine misinformation” had been reduced.

      8.     All internal employee communications on Facebook’s efforts to explain
             “vaccine misinformation” measures.




                                                                                     Exhibit 2
       Case 3:20-cv-05787-SI Document 84-1 Filed 03/29/21 Page 19 of 19




Ms. Sonal N. Mehta
WilmerHale, LLP
March 24, 2021
Page 3 of 3



We request that you confirm in writing your clients’ agreement to preserve the
information set forth in categories 1– 8 above.

Alternatively, this letter serves as a meet and confer request pursuant to Civil L.R. 37-
1(a). Let us know your availability to meet and confer this week such that we can have
any substantive discussion within the next seven days, or by Wednesday, March 31,
2021.

                                               Sincerely,



                                               Roger Teich




                                                                                 Exhibit 2


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