FORT WORTH (LN) — A federal judge on April 23 ordered Media Matters for America to produce documents about online advertising brand-safety standards and its staffing records, while deferring a ruling on whether the Stored Communications Act shields social media posts from civil discovery. The order advances discovery in X Corp.'s business-tort lawsuit over articles the platform claims were designed to manufacture the appearance of neo-Nazi content alongside major advertisers.
Chief U.S. District Judge Reed O'Connor granted X's motion to compel in full and partially granted Media Matters' competing motion, issuing a split ruling that has drawn wide attention from press-freedom advocates since X filed suit in November 2023.
X alleges that Media Matters and two of its employees — reporter Eric Hananoki and president Angelo Carusone — knowingly fabricated side-by-side images depicting advertisers' posts next to extremist content and presented those images as representative of what an average user would encounter on the platform, with the intent to drive away advertisers and harm the company.
The sharpest fight on X's side of the ledger involved Media Matters' attempt to shield its editorial research from disclosure under the First Amendment and the Texas Press Shield Law. O'Connor declined to exempt potentially privileged documents from Rule 26(b)(5)'s logging requirement, noting that Media Matters had previously logged documents under the Texas Press Shield case — which the court read as an implicit concession that the logging obligation applies. The court explicitly declined to make any determination about the validity of Media Matters' First Amendment or press-shield objections, ordering instead that defendants produce nonprivileged documents and deliver a privilege log by May 22.
O'Connor was equally direct about Media Matters' boilerplate objections to X's requests for staffing records, holding that generic claims of overbreadth and undue burden are invalid under the Federal Rules without supporting affidavits or evidence quantifying the burden — and that Media Matters had provided neither.
The more legally novel question arose from Media Matters' own discovery demands. The organization sought production of all content posted to certain accounts — including posts that were later deleted or resulted in account suspensions — arguing that two exceptions to the Stored Communications Act permitted disclosure. X countered that the SCA, 18 U.S.C. § 2702(a), bars it from producing the content. Media Matters argued in its reply brief that the SCA does not apply to social media posts at all, but O'Connor refused to consider the argument, citing Fifth Circuit precedent that issues raised for the first time in a reply are waived.
Rather than rule on the SCA question, the court ordered supplemental briefing on three specific issues: whether X qualifies as an electronic communication service or a remote computing service under the statute; how the SCA applies to social media posts as distinct from email or closed-end messaging; and what Congress intended and service-protection exceptions in subsections (b)(3) and (b)(5). X, as the party resisting production, was required to file an opening brief first.
On Media Matters' request for advertising revenue data tied to specific accounts, O'Connor accepted X's representation — supported by a declaration from its legal team — that the company does not track revenue at the granularity the request demanded and therefore has no responsive documents. The court declined to order X to create records that do not exist. The court similarly accepted X's representation, supported by a declaration from its Global Brand Safety Lead, that a reasonable search for documents setting forth content filters for new accounts yielded no responsive materials.
The court did, however, order X to produce creator monetization and revenue-sharing data, narrowing the request to the 15 user accounts that actually appeared in Media Matters' reporting rather than the broader universe X had been asked to search.
O'Connor also ordered X to produce documents relating to advertising losses allegedly caused by the Center for Countering Digital Hate, the Anti-Defamation League, and other organizations, holding that Media Matters is entitled to develop its theory that entities other than the defendants caused the advertiser exodus X attributes to the November 2023 articles.
The SCA briefing schedule set has already passed — X's opening brief was due May 4, Media Matters' response May 11, and X's reply May 18 — meaning the court may resolve that question soon, with the May 22 production deadline for the remaining requests bearing down on both sides.