Federal Trade Commission v. Directv, Inc. et al

Northern District of California, cand-4:2015-cv-01129

Discovery Order re: {{130}} Discovery Letter Brief re FTC 30(b)(6) Topic 1. Signed by Judge Maria-Elena James on 4/6/2016.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 FEDERAL TRADE COMMISSION, 7 Case No. 15-cv-01129-HSG (MEJ) Plaintiff, 8 DISCOVERY ORDER v. 9 Re: Dkt. No. 130 DIRECTV, INC., et al., 10 Defendants. 11 12 Northern District of California United States District Court 13 The Court is in receipt of the parties' discovery dispute letter concerning Plaintiff Federal 14 Trade Commission's ("FTC") Federal Rule of Civil Procedure 30(b)(6) Deposition Topic 1, which 15 seeks the following testimony: "The results of any and all research, surveys or tests, performed by 16 or for [Defendants DIRECTV and DIRECTV, LLC (collectively, "DIRECTV")] concerning the 17 design, location or wording of disclosures in DIRECTV advertisements, websites or other 18 marketing materials of material terms, including price, required subscriber agreement, early 19 cancellation fee, or the existence of a negative option." Jt. Ltr., Dkt. No. 130; id., Ex. A (Notice of 20 Dep.), Dkt. No. 130-1. 21 The FTC argues this information is relevant because, in its Complaint, the FTC alleges 22 DIRECTV's ads violate the FTC Act and the Restore Online Shoppers' Confidence Act by failing 23 to adequately disclose the actual price of its satellite-television subscription service, the full length 24 of its required contract, and DIRECTV's negative-option marketing to sell premium channels. Jt. 25 Ltr. at 2. As the central issue in the case is whether necessary disclosures are made in a manner 26 that consumers can see and understand, the FTC maintains that surveys and tests performed by or 27 for DIRECTV regarding price, the required length of subscriber commitment, and the premium 28 channel negative option are clearly relevant. Id. 1 In response, DIRECTV argues the FTC's notice is overbroad and vague because it seeks 2 testimony on the "results" of research, "which could include a myriad of topics some relevant, 3 many not." Id. at 4. DIRECTV further argues the topic requires it to speculate as to which terms 4 the FTC believes are material because it seeks testimony on consumer perception related to 5 "material terms" of the subscriber agreement. Id. DIRECTV requests the Court limit testimony to 6 the following topic: "Conclusions reached by DIRECTV, based on non-privileged research or 7 studies it has conducted, legal requirements, and/or data available to it, regarding the adequacy of 8 disclosures in its advertising of introductory program package subscription pricing, the subscriber 9 agreement, early cancellation fees, and premium channel offers." Id. 10 Having reviewed the parties' positions, the Court finds the FTC's Topic 1 both relevant 11 and appropriately limited in scope. Topic 1 does not include a "myriad of topics," but instead 12 focuses on "research, surveys or tests, performed by or for DIRECTV," and it limits material Northern District of California United States District Court 13 terms to "price, required subscriber agreement, early cancellation fee, or the existence of a 14 negative option." Further, although DIRECTV seeks to limit the request to the "conclusions" it 15 reached, this would prevent the FTC from discovering relevant information, such as the objectives 16 of DIRECTV's advertising research and the data it obtained from its studies. 17 Accordingly, the Court GRANTS the FTC's motion to compel. 18 IT IS SO ORDERED. 19 20 Dated: April 6, 2016 21 ______________________________________ MARIA-ELENA JAMES 22 United States Magistrate Judge 23 24 25 26 27 28 2