In re Meta Platforms, Inc., No. 26-OA-0001, D.C. Court of Appeals (July 16, 2026), full opinion (PDF)
Four documents escaped in a production of more than 2.5 million, and the producing party clawed them back. That is usually the end of the story. Here the trial court read the four documents in camera, held them stripped of privilege by the crime-fraud exception, and ordered them produced anyway. On July 16 the District of Columbia Court of Appeals refused to disturb that order.
The decision matters to anyone running privilege review at scale, and it carries a second lesson about timing that is easy to underrate. Meta lost the appellate round largely on evidence it chose not to file the first time.
What Happened
The District of Columbia sued Meta Platforms and Instagram in the Superior Court of the District of Columbia under the Consumer Protection Procedures Act. The complaint alleges that the companies built addictive features aimed at children and misrepresented to consumers that the platforms are safe for children. Meta is defending parallel claims elsewhere, including a multidistrict litigation in the Northern District of California.
Discovery is under way, and Meta "has so far produced over 2.5 million documents to the District, most of which had also been produced in the multidistrict litigation." Meta then issued clawback notices under the Superior Court's counterpart to Rule 26(b)(5)(B), asking for the return of documents it said held privileged material.
Four of those documents were communications among Meta researchers about internal research on youth-user wellbeing. The District asked the trial court to review them in camera and to hold them unprivileged under the crime-fraud exception.
The Court's Analysis
The trial court read the documents. It found that two of them relayed advice from Meta's lawyers that researchers should remove portions of research showing the company's knowledge of teen users' developmental vulnerability. A third described efforts by Meta's counsel to block or redesign research about teen mental health harms. The trial court concluded that the communications established probable cause "to show that Meta sought and heeded the advice of its counsel to obfuscate its potential liability during the related multidistrict litigation."
Meta moved for reconsideration and submitted three sworn declarations, including one from the in-house lawyer whose advice was at issue. The two researcher declarations stated that no Meta lawyer had ever advised deleting, concealing, altering, or amending research data. The trial court declined to consider them because Meta "did not submit the declarations before the trial court's ruling and offered no reason for its failure to do so."
The Court of Appeals denied mandamus without reaching the merits, stating that it did "not decide whether the trial court's crime-fraud ruling was legally and factually correct." A mandamus petitioner must show "a clear and indisputable right to have the writ issue," and that standard did real work here. The appellate court acknowledged Meta's concern about the breadth of some of the trial court's reasoning and denied relief regardless. On the declarations, the Court of Appeals applied the ordinary rule that a motion for reconsideration "may not be used to raise arguments or present evidence that could have been raised prior to the entry of judgment" absent a showing of good reason for the delay. Meta had neither requested an evidentiary hearing nor offered the declarations when it first opposed the District's motion.
Why It Matters
A clawback notice recovers possession of a document. It does not settle whether the document was privileged, and Rule 26(b)(5)(B) and its local analogues say nothing about that question. A receiving party can answer a clawback by moving for in camera review under the crime-fraud exception. That moves the fight to ground where the inadvertence of the production is beside the point.
Build the record on the first motion. The declarations Meta later filed came from the researchers and the in-house lawyer who were closest to the documents, and they went unread because they arrived after the ruling. A dispute over a handful of documents inside a multimillion-document production can look like housekeeping until a crime-fraud allegation attaches. Treat the initial opposition as the only chance to put sworn testimony in front of the court. The same goes for a request for an evidentiary hearing and for any proposed sequencing of in camera review.
The cross-production posture deserves attention too. Most of what Meta gave the District had already gone out in the California multidistrict litigation, which is ordinary practice and a real efficiency. It also means a privilege call made once travels into every forum where the set is reused, and a challenge in any one of them reaches material produced in all of them.
The full opinion is available as a PDF.
