Lies, Damned Lies, and Statistics: Meta's Case-in-Chief Draws Sharp Words

Big Tech on Trial is back. Your author has been tied up in a variety of other legal work for clients, so please forgive my belated write-up from Meta’s abbreviated case-in-chief, which took place at the end of Week 5 and beginning of Week 6 of trial. In the next post, we’ll cover Meta’s main expert economist, Dennis Carlton, and the FTC’s rebuttal from its expert, Scott Hemphill. But in this post, we take a quick tour through Meta’s defense, which featured fact witnesses from Snap, WhatsApp, Walmart, and Instagram, plus two expert economists, John List and Catherine Tucker.

Meta’s Case Begins with Snap

We left off near the end of Week 5, as the FTC had just rested its case. Meta then called its first witness, Saral Jain of Snap. The entire direct was under seal. When court was open again, the FTC was already into cross. There was a rather lengthy colloquy on the admission status of a Snap earnings call, which the FTC said was pre-admitted. Kellogg Hansen’s Ana Nikolic Paul kept objecting that it was hearsay because it contained statements of Snap founder Evan Spiegel, rather than Jain. But as Chief Judge Boasberg pointed out, since the document was in evidence, that was an objection to foundation, not hearsay, so the court instructed the FTC to lay foundation. The objections continued:

MS. PAUL: Objection, Your Honor. He can't speak for Snapchat.

THE COURT: Overruled. He can.

The questions and the objections didn’t go anywhere anyway since the witness answered that he didn’t know the answers to many of the questions being asked, given his role on the infrastructure side of things.

Jain explained how Snap used Google Cloud and then Amazon Web Services in lieu of its own servers, which freed up the company from having to hire as many engineers. This was further down the line from a point we heard earlier in trial, that Instagram didn’t need Facebook’s servers to succeed because it could have just continued using cloud vendors.

On re-direct, Paul pointed out, and Jain agreed, that Snap used to run on the Google App Engine, which could not handle Snap’s growth projections. Snap also eventually concluded that a single cloud provider wasn’t good enough, so de-risked by having multiple providers, which took some time. Much of the re-direct was under seal, too.

Meta’s next witness was also from ...