Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

DECLARATION of Christopher Lynch regarding motion to compel {{123}}

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Case: 1:16-cv-05486 Document #: 125 Filed: 06/05/17 Page 1 of 4 PageID #:2655 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS) VIAMEDIA, INC.,))) Case No. 1:16-cv-05486 Plaintiff,)) Hon. Amy St. Eve v.)) COMCAST CORPORATION, and) COMCAST SPOTLIGHT, LP,)) Defendants.)) DECLARATION OF CHRISTOPHER LYNCH Christopher Lynch, pursuant to 28 U.S.C. § 1746, hereby declares: 1. I am Counsel at Davis Polk & Wardwell LLP, and we represent Comcast Corporation and Comcast Cable Communications Management, LLC (successor to Comcast Spotlight, LP and together with Comcast Corporation, "Comcast") in the above-captioned matter. I respectfully submit this declaration in support of Comcast’s Motion to Compel Responses to Defendants’ First Set of Interrogatories. 2. On November 21, 2016, Comcast served its First Set of Interrogatories to Viamedia, Inc. A true and correct copy of Comcast’s First Set of Interrogatories is attached as Exhibit A. The interrogatories requested (among other things):  Interrogatory No. 4: "With respect to Your tying claim, identify the'tying’ product and the'tied’ product, the relevant product market and geographic markets for these products, and estimated market share(s) for the tying product market(s) and the tied product market(s)."  Interrogatory No. 5: "With respect to Your exclusive deal claim, identify the relevant product market and geographic market in which You allege Comcast has engaged in exclusive dealing, and estimated market share(s) for the relevant market(s)." (See Ex A at 6.) Case: 1:16-cv-05486 Document #: 125 Filed: 06/05/17 Page 2 of 4 PageID #:2656 3. On December 23, 2016, Viamedia served its Response to Defendants’ First Set of Interrogatories. A true and correct copy of Viamedia’s Response is attached as Exhibit B. Viamedia served the following identical objection to Interrogatories Nos. 4 and 5: Viamedia objects to this Interrogatory as premature in so far as it seeks discovery of Viamedia’s contentions in this action. Significant discovery has not been completed, including document production, depositions of witnesses, and expert discovery, and Viamedia’s investigation and its trial preparation remains ongoing. In addition, Viamedia objects to this Interrogatory as calling for information that is more properly the subject of expert opinion testimony, months before expert disclosures are required. Moreover, Viamedia construes this Interrogatory as an untimely and premature request to identify evidence to be used at trial, which will be disclosed in accordance with Fed. R. Civ. P. 26(a)(3), applicable Local Rules of the Northern District of Illinois, the Court’s case management Orders, and other applicable Orders of the Court. Viamedia further objects to this Interrogatory to the extent that it calls for legal arguments or conclusions, and seeks information protected by the attorney-client privilege, the attorney work-product doctrine, and other applicable legal protections. (See Ex. B at 6-8.) 4. Viamedia’s prior counsel also asserted that the "allegations [in Viamedia’s Amended Complaint] provide fair notice of its contentions at this state of litigation regarding relevant antitrust products and markets." (Ex. F.) 5. Counsel for the parties have met and conferred for close to four months regarding Viamedia’s objections to Comcast’s Interrogatories 4 and 5. Attached as Exhibits C through I are true and correct copies of Comcast’s and Viamedia’s January 21, January 27, February 7, February 17, April 7, April 14, and April 24, 2017 letters addressing a number of discovery issues, including Interrogatories 4 and 5. 6. Following Viamedia’s substitution of counsel in March 2017, Comcast asked Viamedia’s new counsel to reconsider Viamedia’s refusal to answer the Interrogatories. During those discussions, Comcast’s counsel explained that (a) Comcast seeks only non-privileged information concerning the markets that Viamedia is alleging are at issue in its tying and exclusive 2 Case: 1:16-cv-05486 Document #: 125 Filed: 06/05/17 Page 3 of 4 PageID #:2657 dealing claims; (b) information such as the alleged "tying" product and the alleged "tied" product is foundational to a tying claim, would help clarify the issues in this case (particularly given the shifting nature of Viamedia’s tying claim), and does not require expert testimony or opinion to articulate (as opposed to prove); (c) Comcast is only seeking information currently in Viamedia’s possession, and acknowledged that Viamedia may, and is in fact obligated to, supplement its answers in the event it later shifts its theory based on future discovery; (d) the requests are not contention interrogatories, but even if they are, such interrogatories are appropriate at this juncture of the case; and (e) Comcast disagrees that the Amended Complaint enumerates the specific facts sought in the interrogatories. 7. At the April 25, 2017 status conference, counsel for Viamedia characterized Viamedia’s tying claim. Attached as Exhibit J is a true and correct copy of excerpts from the status conference transcript. During the conference, Viamedia’s counsel twice defined the tied product as representation for "local spot cable advertising," rather than representation for national, regional, and local advertising as previously represented to the Court. (Ex. J at 4:14-18 (emphasis supplied).) According to its counsel, Viamedia claims that Comcast "tied [its] control of the Interconnect to representation in the local spot cable advertising." (Id. (emphasis supplied).) Viamedia’s counsel further stated that "the case concerns the use of the control of the Interconnect to exclude Viamedia and MVPDs from the Interconnect unless they gave their control of local spot cable advertising." (Id. at 4:7-10 (emphasis supplied).) 8. On May 8, 2017, following the comments made by Viamedia’s counsel at the April 25 hearing, Comcast sent a letter to Viamedia requesting that Viamedia respond to Interrogatories 4 and 5 by May 12, 2017. Attached as Exhibit K is a true and correct copy of the May 8, 2017 letter. 3 Case: 1:16-cv-05486 Document #: 125 Filed: 06/05/17 Page 4 of 4 PageID #:2658 9. After receiving no response from Viamedia by May 12, Comcast sent Viamedia a letter on May 16, 2017, stating that "[i]f we do not receive Viamedia’s position on these interrogatories by May 19, we will consider the parties at an impasse." Attached as Exhibit L is a true and correct copy of the May 16, 2017 letter. 10. On May 19, 2017, the parties engaged in a telephonic meet and confer. During that call, Viamedia’s counsel rearticulated its general objections to providing a response, referred Comcast’s counsel to the April 25 status conference transcript, and stated that Viamedia is standing on its objections and refusing to answer Interrogatories 4 and 5. During another meet and confer held on May 30, 2017, counsel for both parties agreed that the parties are at an impasse on this issue. 11. Viamedia has had Comcast’s DOJ production since December 5, 2016 (six months), and has had access to transcripts of DOJ’s depositions of three Comcast witnesses since January 18, 2017 (nearly four-and-a-half months). I declare under penalty of perjury that the foregoing is true and correct to the best of my information, knowledge, and belief. Dated: June 5, 2017 ___/s/Christopher Lynch________ Christopher Lynch 4