Federal Trade Commission v. Directv, Inc. et al

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

Discovery Order re: {{146}} Joint Discovery Letter Brief. Signed by Judge Maria-Elena James on 6/9/2016.

Interested in this case?

Current View

Full Text

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 FEDERAL TRADE COMMISSION, 6 Case No. 15-cv-01129-HSG (MEJ) Plaintiff, 7 DISCOVERY ORDER v. 8 Re: Dkt. No. 146 DIRECTV, INC., et al., 9 Defendants. 10 11 12 On May 2, 2016, Defendants DIRECTV and DIRECTV, LLC (collectively, "DIRECTV") Northern District of California United States District Court 13 and Plaintiff Federal Trade Commission ("FTC") filed a joint discovery letter regarding 14 DIRECTV's Requests for Production of complaints from the FTC's Consumer Sentinel system 15 ("Sentinel") regarding DIRECTV competitors Dish Network, Comcast XFINITY, Cox 16 Communications, Verizon FIOS, Time Warner Cable, Charter Communications, and other 17 providers of cable or satellite television services (a total of ten companies). Dkt. No. 142. After 18 reviewing the parties' positions, the Court found DIRECTV's requests may be relevant, but they 19 were not proportional to the needs of the case. Dkt. No. 144. Bearing in mind the proportionality 20 requirements of Federal Rule of Civil Procedure 26, the Court noted that the parties did not show 21 any attempt to agree upon a more limited scope of production and they had not set forth their 22 proposed compromise on the issues in dispute, as required under the undersigned's Discovery 23 Standing Order. Id. Thus, the Court ordered the parties to meet and confer to determine if they 24 are able to agree on a more limited production. Id. 25 On June 8, 2016, the parties filed an updated letter stating they have not been able to reach 26 an agreement. Dkt. No. 146. DIRECTV now proposes the FTC produce all consumer complaints 27 for three DIRECTV competitors (Comcast, DISH, and Charter)—as opposed to all ten 28 companies—noting the FTC has already run a query to identify the number of complaints for these 1 competitors, and the total is 231,802 (100,988 Comcast + 96,813 DISH + 34,001 Charter). Id. at 2 1. The FTC proposes producing random samples of consumer complaints for three companies of 3 DIRECTV's choosing. Id. at 3. Under its proposal, DIRECTV can choose the sample from each 4 population, or it can let the FTC choose the sample. Id. 5 Having reviewed the parties' positions, the Court finds the FTC's sampling proposal more 6 closely comports with Rule 26's demand for proportionality. Rule 26 provides that a party may 7 obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or 8 defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Factors to consider 9 include "the importance of the issues at stake in the action, the amount in controversy, the parties' 10 relative access to relevant information, the parties' resources, the importance of the discovery in 11 resolving the issues, and whether the burden or expense of the proposed discovery outweighs its 12 likely benefit." Id. Under Rule 26, "[t]he parties and the court have a collective responsibility to Northern District of California United States District Court 13 consider the proportionality of all discovery and consider it in resolving discovery disputes." Fed. 14 R. Civ. P. 26 advisory committee notes (2015 amendments). Thus, there is "a shared 15 responsibility on all the parties to consider the factors bearing on proportionality before 16 propounding discovery requests, issuing responses and objections, or raising discovery disputes 17 before the courts." Salazar v. McDonald's Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 18 2016); Goes Int'l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing 19 advisory committee notes for proposition that parties share a "collective responsibility" to 20 consider proportionality and requiring that "[b]oth parties. . . tailor their efforts to the needs of 21 th[e] case"). 22 Unlike DIRECTV's proposal for a full-scale production of all Sentinel files for three 23 companies (totaling more than 200,000 files), sampling would achieve Rule 26's demand for 24 proportionality. At this point, the relevance of these materials is largely speculative and a random 25 sample therefore gives DIRECTV what it seeks through these Requests for Production while 26 rendering the FTC's burden reasonably proportional to the materials' purported evidentiary value. 27 At the same time, the FTC's proposal mirrors the Court's April 4, 2016 Order mandating 28 DIRECTV to produce a random sample of consumer files from the company's RIO database. See 2 1 Dkt. No. 31. Reciprocal production on this basis is appropriate. 2 However, DIRECTV agreed to reduce its request from ten to three companies if it obtained 3 all complaints for the three companies. As a random sample of three companies drastically alters 4 DIRECTV's request and greatly reduces the FTC's production burden, it may be appropriate for 5 the FTC to produce a random sample from other companies as well. Accordingly, the parties shall 6 further meet and confer in compliance with the undersigned's Discovery Standing Order to 7 determine which companies' complaints the FTC shall produce as well as the appropriate sample 8 size for each company. If unable to agree, the parties shall file an updated joint letter. 9 IT IS SO ORDERED. 10 11 Dated: June 9, 2016 12 ______________________________________ Northern District of California United States District Court MARIA-ELENA JAMES 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3