Federal Trade Commission v. Directv, Inc. et al

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

ORDER by Judge Haywood S. Gilliam, Jr. Granting {{303}} Stipulation Regarding Admissibility of Certain Trial Exhibits.

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1 Eric D. Edmondson, D.C. Bar No. 450294 Jeffrey M. Tillotson, SBN 139372 Erika Wodinsky, Cal. Bar No. 091700 jtillotson@tillotsonlaw.com 2 Jacob A. Snow, Cal. Bar No. 270988 Tillotson Law Boris Yankilovich, Cal Bar No. 257887 750 North Saint Paul Street, Suite 610 3 901 Market Street, Suite 570, Dallas, TX 75201 4 San Francisco, CA 94103 Telephone: (214) 382-3040 (415) 848-5100 / (415) 848-5184 (fax) Pete Marketos, Pro Hac Vice 5 eedmondson@ftc.gov; ewodinsky@ftc.gov; pete.marketos@rgmfirm.com jsnow@ftc.gov; byankilovich@ftc.gov 6 Reese Gordon Marketos LLP 750 North Saint Paul Street, Suite 610 Raymond E. McKown, Cal. Bar No. 150975 Dallas, TX 75201 7 Stacy Procter, Cal. Bar No. 221078 Telephone: (214) 382-9810 8 Kenneth H. Abbe, Cal. Bar No. 172416 10877 Wilshire Blvd., Suite 700 Chad S. Hummel, SBN 139055 9 Los Angeles, CA 90024 chummel@sidley.com (310) 824-4343 / (310) 824-4380 (fax) Mark D. Campbell, SBN 180528 10 rmckown@ftc.gov; sprocter@ftc.gov; mcampbell@sidley.com kabbe@ftc.gov Bridget S. Johnsen, SBN 210778 11 bjohnsen@sidley.com 12 Attorneys for Plaintiff Ryan M. Sandrock, SBN 251781 Federal Trade Commission rsandrock@sidley.com 13 SIDLEY AUSTIN LLP 555 California Street, Suite 2000 14 San Francisco, CA 94104 Telephone: (415) 722-1200 15 Facsimile: (415)772-7400 16 Attorneys for Defendants DIRECTV and DIRECTV, LLC 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 SAN FRANCISCO DIVISION 20 21 FEDERAL TRADE COMMISSION, Case No. 3:15-cv-01129 HSG 22 Plaintiff, Assigned to the Hon. Haywood S. Gilliam, Jr. 23 v. STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL 24 DIRECTV, a corporation, EXHIBITS 25 and [Local Rule 7-12] 26 DIRECTV, LLC, a limited liability company, 27 Defendants. 28 STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL EXHIBITS 3:15-CV-01129 1 Plaintiff Federal Trade Commission ("FTC") and Defendants DIRECTV and DIRECTV, 2 LLC ("DIRECTV") (collectively, the "parties") jointly stipulate, pursuant to N.D. Cal. Local Rule 7- 3 12, to the admissibility of the following trial exhibits. The parties have decided not to file statements 4 regarding any disputed issues outside of the Court's standard procedures. 5 (1) Print Advertisements 6 The parties agree that the Trial Exhibits listed below, which are DIRECTV print 7 advertisements, may be admitted into evidence at trial, subject to the following stipulation: 8 DIRECTV's print ads were produced to the FTC electronically. Print ads are 9 provided to consumers in paper form only. To prepare the paper versions of print ads for 10 trial, the FTC used the electronic files provided to the FTC by DIRECTV or its agents. The 11 format of the print ad exhibits provided in paper to the Court by the FTC (in the 1-1999 range 12 of the trial exhibits) may differ from the original paper version seen by consumers in some 13 respects, e.g., a double-sided print ad may have been printed single-sided, certain exhibits 14 include printer's instructions, and the type of paper may differ. DIRECTV represents to the 15 Court that the paper forms of the FTC's print ad exhibits are not in the form provided to 16 consumers, and that Exhibits 2006-2023 and 2025-2026 are in the form provided to 17 consumers. DIRECTV also asserts that the image quality of the paper print ads on the FTC's 18 exhibit list is lower than the image quality on the print ads that a consumer would have 19 viewed. 20 Exhibit Nos: 78, 79, 82, 83, 84, 85, 87, 88, 89, 90, 91, 92, 94, 96, 97, 98, 99, 105, 106, 107, 21 111, 112, 113, 114, 115, 116, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 22 134, 136, 137, 138, 139, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 156, 157, 23 160, 161, 162, 163, 164, 165, 166, 168, 169, 170, 171, 172, 173, 174, 176, 177, 179, 182, 184, 185, 24 186, 187, 188, 189, 190, 192, 193, 195, 197, 198, 199, 200, 201, 203, 206, 207, 208, 209, 210, 212, 25 213, 214, 215, 217, 218, 219, 222, 223, 224, 225, 226, 227, 228, 230, 231, 232, 234, 235, 238, 239, 26 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 257, 258, 259, 262, 27 263, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 28 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 301, 302, 303, 304, 305, 306, 1 STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL EXHIBITS 3:15-CV-01129 1 308, 309, 310, 311, 312, 313, 321, 322, 323, 324, 325, 326, 327, 328, 329, 333, 334, 335, 1304, 2 1329, 1339, 1341, 2006-2023, 2025, and 2026. 3 (2) Webflows 4 The parties agree that Trial Exhibit Nos. 1021, 1033, 1035, 1046, 1050, 1059, 1065, 1068, 5 1072, 1081, 2045, which are images of DIRECTV's website, directv.com, may be admitted into 6 evidence at trial, subject to the following stipulation: 7 The quality of the images of the above web-flow exhibits has been degraded due 8 to technological limitations associated with memorializing the web-flows. The 9 above web-flow exhibits accurately reflect the content of those portions of 10 directv.com that are displayed on the face of the exhibit but may exclude portions 11 of the website. 12 (3) FRE 1006 Summary Exhibits 13 The parties agree that Trial Exhibit Nos. 424, 433, 665, and 472, which are summary 14 exhibits prepared by the FTC, may be admitted into evidence at trial. 15 (4) Television Advertisements 16 The parties agree that Trial Exhibit Nos. 438 and 442-456, which are DIRECTV television 17 advertisements, may be admitted into evidence at trial. 18 (5) DIRECTV Sales Guides 19 The parties stipulate that Trial Exhibit Nos. 1-2, 5-7, 12-14, 18, 22-25, 27-31, 33-34, 36-37, 20 39-40, 42-46, and 49-65, which are DIRECTV's sales guides, may be admitted into evidence at trial, 21 subject to the following stipulation: 22 DIRECTV's sales guides are not advertisements and are not seen by consumers. 23 Trial Exhibit Nos. 1-2, 5-7, 12-14, 18, 22-25, 27-31, 33-34, 36-37, 39-40, 42-46, 24 and 49-65 include all sales guides located by DIRECTV and provided to the FTC, 25 but these sales guides do not cover the entirety of the relevant time period at issue 26 in this action. 27 (6) DIRECTV "Call Flows" 28 The parties stipulate that Trial Exhibit Nos. 483, 485, 489, 499, 505, 511, 516, 521, and 524, 2 STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL EXHIBITS 3:15-CV-01129 1 which are DIRECTV's call flows, may be admitted into evidence at trial, subject to the following 2 stipulation: 3 Trial Exhibits 483, 485, 489, 499, 505, 511, 516, 521, and 524 are referenced 4 generally as "call flows" at DIRECTV and are one of several categories of 5 materials provided to customer service agents to support the agent on inbound 6 sales calls to DIRECTV. 7 (7) Screen Shots and Video Captures of DIRECTV Telephone Agent Dashboard 8 The parties agree that Trial Exhibit Nos. 482 and 542-544, which are screen shots and video 9 captures of DIRECTV Telephone Agent Dashboards, may be admitted into evidence at trial. 10 (8) DIRECTV SEC Filings 11 The parties agree that Trial Exhibit Nos. 1290-1294, which are certified copies of DIRECTV 12 Form 10-K filings with the U.S. Securities and Exchange Commission from 2010-2014, may be 13 admitted into evidence at trial. 14 Dated: February 28, 2017 SIDLEY AUSTIN 15 By: /s/ Chad S. Hummel 16 Chad S. Hummel Attorneys for Defendants 17 DIRECTV and DIRECTV, LLC 18 FEDERAL TRADE COMMISSION 19 By: /s/ Eric D. Edmondson Eric D. Edmondson 20 Attorneys for Plaintiff Federal Trade Commission 21 22 Pursuant to Civil Local Rule 5-1(i), the filer attests that concurrence in the filing of this 23 document has been obtained from the signatories above. 24 By: /s/ Jacob A. Snow 25 26 27 28 3 STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL EXHIBITS 3:15-CV-01129 1 [PROPOSED] ORDER 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED. 4 3/1/2017 Dated: _______________________ ___________________________________ HON. HAYWOOD S. GILLIAM, JR. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 STIPULATION REGARDING ADMISSIBILITY OF CERTAIN TRIAL EXHIBITS 3:15-CV-01129