Federal Trade Commission v. Directv, Inc. et al

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

ORDER by Magistrate Judge Maria-Elena James granting {{163}} Stipulation. (rmm2S, COURT STAFF)

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1 Counsel Listed on Signature Page 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 FEDERAL TRADE COMMISSION,) Case No. 3:15-cv-01129 HSG 12) Plaintiff,) Judge: Haywood S. Gilliam, Jr. 13) vs.) 14) DIRECTV, a corporation,) DISCOVERY STIPULATION ARISING 15) FROM COURT-ORDERED MEET AND and) CONFER (DKT. 160) AND [PROPOSED] 16) ORDER DIRECTV, LLP a limited company,) 17) Defendants.) 18) 19 20 21 22 23 24 25 26 27 28 NO. 15-1129 DISCOVERY STIPULATION AND [PROPOSED] ORDER 1 Pursuant to the Court's order (Dkt. 160), the parties met and conferred in court on July 25, 2 2016. The parties reached agreement on the following: 3 1. Letter Brief re: RFP 4: The parties agree that the issue (Dkt. 152) has been resolved by the 4 Court's order (Dkt. 156). DIRECTV is preparing its production in accordance with the 5 Court's order. 6 2. Letter Brief re: RFPs 6 and 7: 7 a. DIRECTV will search for and produce any relevant, responsive eye-mapping 8 studies/reports from Valpak, Wishabi, and RealEyes. DIRECTV will also search for and 9 produce any relevant, responsive additional research from Wishabi. DIRECTV will 10 provide information on the results of these searches by July 29, 2016. 11 b. DIRECTV will search for and produce any relevant, responsive .comScore 12 data/studies/reports (in particular any data regarding click-throughs). DIRECTV will 13 provide information on the results of this search by July 29, 2016. 14 c. DIRECTV will search for and produce for relevant, responsive McKinsey 15 surveys/studies/reports. DIRECTV will provide information on the results of this search 16 by July 29, 2016. 17 d. DIRECTV will run and review the FTC's search terms (as set forth in Dkt. 155—both 18 Query 1 and Query 2) on Giles Lundberg's materials and produce responsive documents 19 reasonably in advance of Mr. Lundberg's deposition. 20 e. The FTC will not seek any further ESI under RFPs 6 and 7. 21 f. This resolves Dkt. 155. 22 3. DIRECTV Topic 17 to FTC: 23 a. The FTC will identify in its opening expert report (or in another form no later than the 24 day opening expert reports are exchanged) any DIRECTV-produced documents 25 supporting any FTC claim that DIRECTV's consumer perception research demonstrated 26 that the company was aware of consumer deception. 27 b. The deposition will be taken off calendar. 28 4. DIRECTV Topic 18 to FTC: 1 NO. 15-1129 DISCOVERY STIPULATION AND [PROPOSED] ORDER 1 a. The FTC will produce declaration(s) by August 5, 2016 regarding how videos were 2 captured and what DIRECTV website material was selected for capture. 3 b. The deposition will be taken off calendar, with the understanding that DIRECTV can 4 depose the witnesses if necessary after receiving the declaration(s). 5 5. FTC 30(b)(6) Topic 4: The parties will continue to work cooperatively on the authentication 6 and explanation of sales and cancellation data produced by DIRECTV. 7 6. FTC 30(b)(6) Topic 14: 8 a. DIRECTV will produce declaration(s) by August 5, 2016 regarding the universe from 9 which the sample of recorded calls was drawn and how the recorded calls were selected. 10 b. The deposition will be taken off calendar, with the understanding that the FTC can 11 depose the witness(es) if necessary after receiving the declaration(s). 12 7. FTC 30(b)(6) Topics 9-11: DIRECTV will produce a witness after the ruling on the Ted 13 Suzuki deposition. 14 8. FTC 30(b)(6) Topics 12-13: Withdrawn. 15 9. Website Analytics: DIRECTV will allow the FTC to meet with the appropriate DIRECTV 16 employee to discuss analytics on either 8/2, 8/3, 8/4. DIRECTV will provide the FTC with the 17 opportunity to review the analytics data in the possession of DIRECTV, and if additional 18 relevant, responsive material exists, DIRECTV will produce that material to the FTC. 19 10. ROG 4: DIRECTV will agree that any dissemination schedules produced by third-party 20 agents of DIRECTV are accurate. DIRECTV agrees that DIRECTV's final television 21 advertisements aired nationally. The parties are still discussing dissemination regarding 22 digital ads and will continue to work cooperatively on this front. 23 11. ROG 26: 24 a. DIRECTV will go back to see if there are any additional scripts that have not been 25 produced and will produce any such scripts that are reasonably available. 26 b. DIRECTV will also see if there are additional sample video recordings of the agent's 27 computer screen during sales calls. If additional such videos exist and are reasonably 28 available, DIRECTV will produce them. 2 NO. 15-1129 DISCOVERY STIPULATION AND [PROPOSED] ORDER 1 c. Required Call Components: DIRECTV will provide or identify reasonably available 2 information specifying the time periods during which each Required Call Component 3 was operative (i.e., the time period during which each Required Call Component directed 4 sales agents to include the specified components). 5 d. For the Required Call Components and the scripts DIRECTV has produced or will 6 produce, DIRECTV will confirm that these are the final scripts actually used for 7 customer calls. 8 12. Banner Ads: DIRECTV will produce in native format if reasonably available. 9 13. Production from Third Parties: The FTC will provide by July 29, 2016 a confirmation that 10 it has produced all such documents or will identify by category documents that it has not. 11 14. No Further Issues. The parties will continue to resolve privilege log issues in good faith. 12 There shall be no further discovery motion practice on any issue without good cause. 13 14 Dated: July 27, 2016 Dated: July 27, 2016 15 /s/ Eric D. Edmondson /s/ Chad S. Hummel 16 Eric D. Edmondson Chad S. Hummel Counsel for FTC Counsel for DIRECTV 17 18 Eric D. Edmondson, D.C. Bar No. 450294 Chad S. Hummel, SBN 139055 19 Erika Wodinsky, Cal. Bar No. 091700 chummel@sidley.com Jacob A. Snow, Cal. Bar No. 270988 Clayton S. Friedman, SBN 245513 20 Boris Yankilovich, Cal Bar No. 257887 cfriedman@sidley.com 901 Market Street, Suite 570, Mark D. Campbell, SBN 180528 21 San Francisco, CA 94103 mcampbell@sidley.com (415) 848-5100 / (415) 848-5184 (fax) Michael Yaghi, SBN 202720 22 eedmondson@ftc.gov; ewodinsky@ftc.gov; myaghi@sidley.com 23 jsnow@ftc.gov; byankilovich@ftc.gov SIDLEY AUSTIN LLP 1999 Avenue of the Stars, 17th Floor 24 Raymond E. McKown, Cal. Bar No. 150975 Los Angeles, CA 90067 Stacy Procter, Cal. Bar No. 221078 Telephone: (310) 595-2600 25 Kenneth H. Abbe, Cal. Bar No. 172416 Facsimile: (310) 595-2601 10877 Wilshire Blvd., Suite 700 26 Los Angeles, CA 90024 Ryan M. Sandrock, SBN 251781 27 (310) 824-4343 / (310) 824-4380 (fax) rsandrock@sidley.com rmckown@ftc.gov; sprocter@ftc.gov; SIDLEY AUSTIN LLP 28 3 NO. 15-1129 DISCOVERY STIPULATION AND [PROPOSED] ORDER 1 kabbe@ftc.gov 555 California Street, Suite 2000 San Francisco, CA 94104 2 Attorneys for Plaintiff Telephone: (415) 722-1200 Federal Trade Commission Facsimile: (415)772-7400 3 Attorneys for Defendants 4 DIRECTV and DIRECTV, LLC 5 6 Attestation pursuant to Local Rule 5.1(i)(3) 7 Pursuant to Local Rule 5.1(i)(3), I attest that concurrence in the filing of this document has been obtained from all Signatories to this document. 8 /s/ Chad S. Hummel_______________ 9 Counsel for Defendants DIRECTV & DIRECTV LLC 10 11 [PROPOSED] ORDER 12 13 PURSUANT TO STIPULATION, IT IS SO ORDERED. 14 July 27, 2016 Dated: _______________________ ___________________________________ 15 HON. MARIA-ELENA JAMES 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NO. 15-1129 DISCOVERY STIPULATION AND [PROPOSED] ORDER