London, November 24 (CMC Day 1 of 2, PM session, Disclosure)
The afternoon session of Day 1 of the case management conference in Gormsen v Meta saw the Tribunal, chaired by Hodge Malek KC, deliver several major disclosure rulings—most notably ordering Meta to provide disclosure from six external proceedings sought by the Class Representative, including the Digital Markets Act (DMA) investigation.
The ruling represents a significant expansion of the disclosure exercise, and confirms the Tribunal’s willingness to go further than Meta’s preferred limitation to three proceedings.
This collective action accuses Meta of abusing its dominance by imposing an “unfair bargain” on UK Facebook users: access to Facebook required consenting to Meta obtaining and exploiting vast quantities of off-Facebook personal data—data gathered from Instagram, WhatsApp, and millions of third-party websites and apps. Dr Liza Lovdahl Gormsen claims this amounted to an unfair price in data, extracted on a take-it-or-leave-it basis, with no payment or value returned to users.
DMA disclosure ordered despite Meta’s objections
Meta had argued forcefully that the DMA is a “distinct regime”, irrelevant to UK users and unrelated to competition law, and therefore should not generate disclosure. Mr Singla warned the Tribunal:
“This cannot conceivably govern the relationship with UK users.”
He maintained that the DMA’s forward-looking obligations and regulatory framing made it inappropriate as a disclosure source, and emphasised the scale of cost and duplication if hundreds of thousands of DMA-related documents were added to the search pool.
The Tribunal disagreed and held that the DMA investigation is sufficiently connected to key issues—particularly the collection and use of off-Facebook data, cross-platform data flows, and Meta’s practices regarding user choice and consent.
The ruling:
“We… consider that [the DMA proceedings] are likely to have a significant amount of documents which are relevant to the issues in the proceedings… We are going to order disclosure… in relation to all six sets of proceedings.”
This includes:
- CMA Online Platforms & Digital Advertising
- German Bundeskartellamt (FCO)
- EU Facebook Marketplace decision
- FTC proceedings
- Klein US litigation
- DMA proceedings
Only one request—which sought all exchanges with privacy regulators such as the ICO, IDPC and EDPB—was refused as duplicative.
The Tribunal acknowledged Meta faces a “significant exercise”, but found that the overlapping issues justified the burden.
The next battleground – custodial vs non-custodial repositories
Much of the afternoon was occupied by a highly technical but important dispute:
Should Meta be ordered to search non-custodial repositories (e.g., privacy documentation stores, research libraries, Launch Manager) now, or only after custodial searches?
The Tribunal adopted a hybrid “iterative” approach:
- Start with custodial searches (emails, messaging systems, files associated with named custodians).
- If gaps appear, Meta must search relevant non-custodial repositories to fill them.
- Meta is not required to run custodial + non-custodial searches in parallel from day one.
The Chair made clear:
“The aim is to ensure all the relevant documents are disclosed… If they find gaps, they should look at the non-custodial repositories to fill them.”
Key issues to be addressed on Wednesday, 26 November (Day 2):
- Whether Instagram/WhatsApp should be included in all requests
- How far terms-related requests should extend into non-Facebook products
- Detailed rulings on specific repositories for each request
- The framework for draft terms, which the Tribunal indicated must be included
- A fuller discussion of redaction rules (to be revisited Wednesday)
- Meta’s timeline and possible “long-stop date” for completing the 10-month disclosure exercise
- Whether the parties can revise the Redfern Schedule overnight following the Tribunal’s Day 1 guidance
“I do expect the parties to work hard tomorrow… so that when we return on Wednesday, we can resolve whatever remains,” Justice Malek said before closing the session.
The Class Representative was represented by Sarah Ford KC (Brick Court), instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
Meta was represented by Tony Singla KC (Brick Court), instruced by Herbert Smith Freehills Kramer LLP.
The case is 1433/7/7/22 Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others in the CAT.
