Forrest v. Meta Platforms, Inc., No. 22-cv-03699-PCP, N.D. Cal. (Aug. 10, 2026), full opinion (PDF)
Andrew Forrest sued Meta over Facebook ads that used his likeness to sell cryptocurrency scams. Meta pleaded Section 230, and the parties split discovery to test the immunity defense first. That defense turns on whether Meta's own tools contributed to the ads' unlawful content. Records showing what those tools actually did were deleted while the dispute was live.
Meta had two leading explanations. It had no obligation to keep the data before Forrest asked about it. And it did not know the data existed until new counsel went looking. On August 10 the Northern District of California rejected both explanations and imposed a curative sanction under Rule 37(e)(1).
What Happened
Forrest's counsel wrote to Meta in August 2019 demanding that it preserve data about the ads. Meta concedes that a preservation duty attached then.
Meta's advertising system optimizes an ad before rendering it, cropping an image, choosing overlay text, or splicing a video into a thumbnail. Whether those optimizations contributed to the unlawful content decides the Section 230 question.
Meta preserved the record of which optimizations were available for each ad. The record of which ones actually ran sits in two datasets. Meta kept the smaller one, which covers only ads that users clicked. It began preserving the larger one two years after that dataset was created in 2023, and fourteen percent of the relevant material survived. A separate set of logs sampling rendered ads expired on a short retention period before Meta says it found them.
The Court's Analysis
Meta argued that its duty as to the optimization data arose only in 2023, when Forrest's discovery began to focus on optimizations. The court accepted that no duty could attach before the larger dataset existed. It read the rest as a claim that the duty tracks the requests. In its words, "Meta argues that it had no duty to preserve what Forrest had not yet asked for. Meta is wrong."
The duty is triggered by objective foreseeability that evidence will be relevant to any party's claim or defense, including the responding party's own affirmative defense. A preservation demand from the opponent can supply that foreseeability, and its absence does not defer the duty. Any reasonable social media company in 2019, the court held, would have foreseen that claims over content it published would give rise to a Section 230 defense, and would have known its content-altering tools were central to it.
Meta's second explanation asked the court to treat counsel's ignorance as the company's. Meta said the delay was reasonable because investigating its ad creation and delivery system took time. The court found that not credible. Current counsel may well have needed time after being engaged in June 2024, the court allowed, "but it is not reasonable to assert that Meta itself (the party with the preservation duty) needed two years to learn about its own data". Meta is a large and sophisticated company employing numerous in-house attorneys, and the court read its account of the sampled logs as conflating counsel's knowledge with Meta's.
Volume did not save those logs. They record several hundred gigabytes every day, but only the scam ad entries had to be kept. Meta conceded those were a very small percentage and never argued that filtering was infeasible.
The loss left Forrest unable to show which optimizations ran on a given ad, which the court found prejudicial. The parties suggested both measures at the hearing, and Meta expressly agreed to the inference. Meta may not argue at summary judgment or trial that Forrest failed to make showings the lost data would have supported. For any ad whose delivery data is missing, optimizations created for that ad are treated as applied in a rendered ad. Fees and costs follow.
Because those measures likely cure the prejudice, the court refused Forrest's stronger request. On intent it found gross negligence, called the question of purpose close, and denied the Rule 37(e)(2) request without prejudice so a jury can decide it.
Why It Matters
Preservation scope is a question about your own case, not about the other side's requests. The gap that cost Meta here sat inside the defense Meta itself pleaded. Preserve against the elements you expect to litigate, including your affirmative defenses, before anyone serves a request.
Retaining new counsel does not restart the preservation clock. The company is held to what its own reasonable investigation would have found, and a substantial in-house legal department raises that expectation.
Size is an argument about filtering, not about the duty. A party calling a source too large to hold should be ready to explain why it cannot isolate the relevant entries.
Gross negligence carried Forrest to Rule 37(e)(1) and no further, and he may still put the intent question to a jury. A party can escape a judicial finding of intent and face a permissive adverse-inference instruction anyway.
The full opinion is available as a PDF.
