Viamedia, Inc. v. Comcast Corporation et al

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

MOTION by Plaintiff Viamedia, Inc. to compel

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Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 1 of 14 PageID #:619 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VIAMEDIA, INC., Plaintiff, v. No. 16 C 5486 COMCAST CORPORATION and Honorable Amy J. St. Eve COMCAST SPOTLIGHT, LP, Defendants. VIAMEDIA, INC.’S MOTION TO COMPEL __________________________________________________________________________ Plaintiff Viamedia, Inc. ("Viamedia") respectfully moves the Court for an order compelling Defendants Comcast Corporation ("Comcast") and Comcast Spotlight, L.P. ("Spotlight") to provide certain discovery described below. 1 As the Court has recognized, the "crux of Viamedia’s allegations is that Comcast has used its control over certain Interconnects to (1) exclude Viamedia from accessing the critical Interconnect infrastructure, and (2) force MVPDs to engage Comcast Spotlight as their spot cable advertising representatives instead of Viamedia or its competitors." Memorandum Opinion and Order at 8 (Nov. 4, 2016), ECF No. 36. Documents produced by Defendants demonstrate that David L. Cohen, a senior vice president of Comcast, was directly involved in the exclusion of Viamedia from 1 Pursuant to Local Civil Rule 37.2, counsel for Viamedia consulted with counsel for the Defendants by telephone in a good-faith attempt to resolve the disputes presented by this motion but were unable to reach an accord. The telephonic consultations took place at 2:30 pm EDT on April 4, 2017, 10:00 am EDT on April 10, 2017, and 11:00 am EDT on April 18, 2017. The participants in the first phone call were: James M. Webster III, Kenneth M. Fetterman, and Derek T. Ho, counsel for Viamedia; and Arthur Burke, David B. Toscano, Christopher Lynch, and Sally Kristen Sears Coder, counsel for Defendants. The participants in the second call were: Mr. Webster, Mr. Fetterman, and Richard J. Prendergast, counsel for Viamedia; and the aforementioned counsel for Defendants. The participants in the third call were: Mr. Fetterman, Mr. Prendergast, and the aforementioned counsel for Defendants.-1-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 2 of 14 PageID #:620 the Interconnect in the Chicago and Detroit DMAs. Therefore, Viamedia should be permitted to question Mr. Cohen about the allegations in the Amended Complaint, including Comcast’s control of Interconnects as a competitive tool. Defendants have also refused to (1) designate as document custodians the individuals it has disclosed under Rule 26(a) as being "likely to possess discoverable information," (2) produce documents from 2007 that Defendants concede are substantially related to the claims and defenses in this case, and (3) produce all communications with the U.S. Department of Justice ("DOJ") in connection with its ongoing antitrust investigation of Defendants’ Interconnect conduct. The Court should order Defendants’ compliance with these straightforward discovery requests. Finally, despite Viamedia’s objections, Defendants have declared they will proceed with a Technology Assisted Review ("TAR") to cull and review files. The Court should not permit this flawed protocol because it is likely to result in the withholding of numerous relevant documents. ARGUMENT Viamedia "may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). "A party has a general right to compel any person to appear at a deposition," and a motion to compel a deposition should be granted where "it is plain that [a] deposition would... assist[] in exploring [certain] material issue[s]." CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002). As the objecting parties, Defendants bear the burden to show why Viamedia’s discovery requests are improper. See, e.g., Medicines Co. v. Mylan Inc., 936 F. Supp. 2d 894, 899 (N.D. Ill. 2013). A. The Court Should Compel the Deposition of Mr. Cohen In April 2014, in connection with Comcast’s proposed acquisition of Time Warner Cable, Mr. Cohen testified before the U.S. House Subcommittee on Regulatory Reform, Commercial and Antitrust Law (the "Antitrust Subcommittee") that Comcast would "not exclude competitors or-2-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 3 of 14 PageID #:621 Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 4 of 14 PageID #:622 Defendants have indicated in their initial disclosures and motion-to-dismiss briefing in this case that they intend to rely on the foregoing negotiations to defend against Viamedia’s claims. 4 Yet, despite the communications discussed above, Defendants have omitted Mr. Cohen from their list of individuals "likely to have discoverable information," see Ex. K (Defendants’ Initial Disclosures) at 3-4, refused to include Mr. Cohen as a document custodian, 5 and refused to make Mr. Cohen available for deposition, despite Viamedia duly noticing Mr. Cohen’s deposition 10 weeks ago, see Ex. L (Notice of Deposition). Defendants’ counsel have stated that the bases for refusing to make Mr. Cohen available for deposition are that he "is a practicing attorney" and a high-level executive who "does not have day-to-day responsibilities for any issues relevant in this litigation." See Ex. M (Letter from C. Lynch to M. Provenance (Feb. 14, 2017)) at 1-2. Documents produced by Comcast and attached to this motion demonstrate that Mr. Cohen has personal knowledge about the exclusion of Viamedia from the Chicago, Detroit, and Hartford Interconnects, which is central to Viamedia’s allegations. More specifically, his deposition would assist in exploring, inter alia: (1) the circumstances surrounding Comcast’s negotiations with Viamedia about access to the Chicago, Detroit, and Hartford Interconnects; (2) Comcast’s reasons for insisting on or refusing to agree to certain terms during those negotiations; and (3) the meaning and intent of Mr. Cohen’s congressional testimony. 4 See, e.g., Ex. K (Defs.’ Initial Disclosures (Aug. 26, 2016)) (Defendants intend to support their defenses using "[p]roposals to Viamedia and other correspondence between Comcast and Viamedia concerning Comcast’s offer to continue to allow Viamedia to access Interconnects in Chicago and Detroit"); Mem. of Law in Supp. Defs.’ Mot. to Dismiss at 9-12 (July 22, 2016), ECF No. 23 (citing Comcast’s offer to give "Viamedia access to the Chicago and Detroit Interconnects" as reason why "Viamedia’s claims fail as a matter of law"). 5 Defendants have stated that they will "search for supplemental documents related for David Cohen’s Congressional testimony" but have not elaborated on what that search will entail. See Ex. P (Letter from C. Lynch to K. Fetterman (Apr. 14, 2017)) at 6.-4-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 5 of 14 PageID #:623 Defendants have presented no persuasive basis to conclude otherwise. In particular, Defendants’ only stated bases for resisting Mr. Cohen’s deposition—his corporate seniority and status as an attorney—are without merit. Defendants’ assertions based on corporate seniority appear be based on the so-called "apex doctrine," which some courts have discussed when considering requests to depose high-level corporate executives. See generally Serrano v. Cintas Corp., 699 F.3d 884, 900-01 (6th Cir. 2012); In re Bridgestone/Firestone, Inc. Tires Prod. Liab. Litig., 205 F.R.D. 535, 536-37 (S.D. Ind. 2002). But "the logical underpinnings of the apex doctrine seeks to prevent a high-ranking corporate executive from being run through the wringer of civil discovery, when they do not have personal knowledge of the relevant facts." Dyson, Inc v. Sharkninja Operating LLC, No. 1:14-cv-0779, 2016 WL 1613489, at *1 (N.D. Ill. Apr. 22, 2016) (emphasis added); accord, e.g., 8A Charles Alan Wright, et al., Federal Practice & Procedure § 2036 n.7 (3d ed. supp. 2017) (apex doctrine "is not an ironclad rule, but bespeaks sensitivity to the risk that very valuable executive time would be wasted where the officer has no real information."). Where, as here, a high-level executive "appears to have taken a hands-on role," see Dyson, 2016 WL 1613489, at *2, and has "personal knowledge of and involvement in certain relevant matters," Bridgestone/Firestone, 205 F.R.D. at 536, it is appropriate to compel that executive’s deposition. Mr. Cohen’s status as an attorney is also not a valid reason to avoid his deposition. Defendants have offered no support for their assertion that Mr. Cohen is a "practicing attorney." See Ex. M (Letter from C. Lynch to M. Provenance (Feb. 14, 2017)) at 2. According to Comcast’s website, Mr. Cohen "has a broad portfolio of responsibilities." 6 Even assuming he is a "practicing attorney," lawyers "are not automatically exempt from deposition," and their testimony is "often extraordinarily revealing and significantly assist[s] in the search for truth." Armada (Singapore) Pte Ltd. 6 http://corporate.comcast.com/news-information/leadership-overview/david-l-cohen-5-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 6 of 14 PageID #:624 v. Amcol Int’l Corp., 160 F. Supp. 3d 1069, 1070-71 (N.D. Ill. 2016). "Questions of privilege must be assessed on a question by question basis and cannot be resolved fungibly even before the deposition begins." Id. B. Individuals Identified in Defendants’ Rule 26(a) Disclosures Should Be Added as Document Custodians Defendants included in their Rule 26(a) disclosures a list of ten "individuals likely to have discoverable information," see Ex. K (Defendants’ Initial Disclosures) at 3-4, but they failed to include five of those individuals as documents custodians. Accordingly, Viamedia requested that Defendants either (1) add those individuals as custodians or (2) amend their initial disclosures to reflect that those individuals do not in fact possess relevant information. See Ex. N (Letter from K. Fetterman to C. Lynch (Apr.11, 2017)) at 2; Ex. O (Letter from K. Fetterman to C. Lynch (Apr. 17, 2017)) at 3. Defendants refused because they consider the window for negotiating document custodians to have closed. See Ex. P (Letter from C. Lynch to K. Fetterman (Apr. 14, 2017)) at 4. According to Defendants’ own disclosures, the five individuals whose files it refuses to search should be added as document custodians. Four of those individuals—Kathleen DeAmicis, William Haase, Kathryn Koles, Teresa Lucido, and Mike Wall—are likely to have discoverable information related to "spot cable advertising and cable advertising representation services." Ex. K (Defendants’ Initial Disclosures) at 3-4. The fifth individual, Michael Angelakis, is likely to have discoverable information related to "[p]roposals and correspondence with Viamedia regarding the Interconnects in Chicago and Detroit." Id. at 3. Defendants do not dispute that those subjects are relevant and discoverable. Defendants’ refusal to amend their disclosures serves only to emphasize that these five individuals should be added as document custodians. If those five individuals were unlikely to possess relevant information, then there would be no reason for Defendants to refuse to amend. Because these individuals likely possess relevant information, they should be added as custodians.-6-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 7 of 14 PageID #:625 See, e.g., Kleen Prods. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465, at *13 (N.D. Ill. Sept. 28, 2012) ("In antitrust cases, courts generally take an expansive view of relevance and permit broad discovery."). C. The Court Should Require Defendants to Produce the Glaberson Documents In March 2017, Comcast objected to the law firm Kasowitz, Benson, Torres & Friedman LLP ("Kasowitz") representing Viamedia in this action based on Kasowitz’s prior representation of Comcast, including in Glaberson v. Comcast Corp., Civ. A. No. 03-6604 (E.D. Pa.), a separate antitrust action that settled in 2015. Comcast argued that Glaberson "concerns alleged anticompetitive conduct that is substantially related to the conduct Viamedia complains of in its first amended complaint." Ex. Q (Letter from A. Burke to C. Pamphilis (Mar. 1, 2017)) at 2. And because the two cases are "substantially related" within the meaning of ABA Model Rule 1.9, Comcast asserted that Kasowitz had a conflict of interest precluding it from representing Viamedia. Id. Comcast maintained that Glaberson was substantially related to this action, notwithstanding its vintage, because "many aspects of the cable spot advertising [industry] have not changed materially in the last decade." Ex. R (Letter from A. Burke to M. Kasowitz (Mar. 8, 2017)) at 5. As evidence of the "substantial relationship" between the two cases, Comcast enumerated specific documents "concerning the cable spot advertising business and other issues relevant to this Action" to which Kasowitz had gained access by virtue of its representation of Comcast in Glaberson, including summary judgment briefing and documents supporting that briefing, a privilege log describing documents "concerning the cable spot advertising business," documents relating to "Comcast’s dealings and competition with RCN," and "a competitive analysis from October of 2007 of Verizon FiOS that considers FiOS’s relationships with Viamedia." Id. at 3-4. Once Viamedia learned that Comcast was aware of specific documents from the Glaberson case relevant to this action, it requested that Comcast produce them. See Ex. O (Letter from K.-7-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 8 of 14 PageID #:626 Fetterman to C. Lynch (Apr. 17, 2017)) at 3. Despite citing those particular documents as evidence of the substantial relationship between the two cases, Comcast has not agreed to produce them. The threshold for discoverability under Rule 26 is more lenient than the "substantial relationship" required to give rise to a conflict of interest under Local Civil Rule 83.50 and ABA Model Rule 1.9. See, e.g., LaSalle Nat’l Bank v. Lake Cty., 703 F.2d 252, 256 (7th Cir. 1983) ("relevan[ce] to the issues raised in the litigation" is necessary but not sufficient to establish "substantial relationship"); In re Metoprolol Succinate Patent Litig., No. MDL 1620, 2005 WL 1661509, at *3 (E.D. Mo. July 8, 2005) (discovery "does not need to be substantially related to a case"). The Glaberson documents Comcast identified in its correspondence with Kasowitz easily satisfy the threshold for discoverability. Indeed, according to Comcast, those documents "concern[] the cable spot advertising business and other issues relevant to this Action," including "Comcast’s dealings and competition with RCN." Ex. S (Letter from A. Burke to M. Kasowitz (Mar. 8, 2017)) at 3-4. Having argued affirmatively that the documents satisfy the more stringent "substantial relationship" standard, Comcast cannot credibly contend that those same documents are not discoverable. Comcast cannot have it both ways, wielding documents to disqualify counsel but then attempting to shield those same documents from discovery. Because these documents are relevant to Viamedia’s claims, and because there is no burden associated with producing documents Comcast has already marshaled to support its own litigation strategy, Comcast should be required to produce the Glaberson documents here. D. The Court Should Require Defendants to Produce All Ongoing Communications with the DOJ To facilitate discovery in this case, the parties agreed to exchange document productions made to the DOJ in response to civil investigative demands ("CID") served in connection with DOJ’s antitrust investigation of Defendants’ Interconnect practices. See ECF No. 37, at 2-3; Ex. P (Letter from C. Lynch to K. Fetterman (Apr. 14, 2017)) at 4. Because those productions are highly-8-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 9 of 14 PageID #:627 relevant to this action, Viamedia requested that the parties produce, on an ongoing basis, any communications with DOJ in connection with its investigation. See Ex. O (Letter from K. Fetterman to C. Lynch (Apr. 17, 2017)) at 3. Defendants rejected that proposal and refused to produce (1) documents provided to DOJ after December 31, 2016; and (2) communications with DOJ that Defendants deem "ministerial" or "non-substantive." See Ex. P (Letter from C. Lynch to K. Fetterman (Apr. 14, 2017)) at 2-4. (Defendants’ counsel distinguished between "ministerial" and "substantive" communications during the parties’ April 18 telephonic meet-and-confer.) There is no principled basis to distinguish between communications Defendants exchanged with DOJ before and after December 31, 2016—and Defendants have identified none. Defendants have merely created an artificial limitation on their discovery obligations. As Viamedia proposed during the meet-and-confer process, both parties should be obligated to supplement their DOJ productions on an ongoing basis. Similarly, Defendants’ proposed distinction between "ministerial" and "substantive" communications with DOJ is both unworkable and unnecessary. It is unworkable because the line between "ministerial" and "substantive" is nebulous, and Defendants’ proposal would leave Viamedia with no practical way of determining whether Defendants are in fact withholding "substantive" communications. It is also unnecessary because there should be nothing stopping Defendants from producing all DOJ communications, just as they have agreed to produce their entire CID responses. It would be far more burdensome for Defendants to weed out so-called "ministerial" documents than it would be for Defendants to produce DOJ materials wholesale. E. The Court Should Require Defendants to Confer with Viamedia on Search Terms, Conduct a Linear Review, and Separately Acquire Responsive Documents On March 15, 2017 counsel for Defendants raised with Viamedia’s former counsel (Mayer Brown) the prospect of using TAR, a form of "predictive coding," as a method to cull and review documents for responsiveness to Viamedia’s document requests. Subsequently, on March 23,-9-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 10 of 14 PageID #:628 Defendants explained for the first time their contemplated TAR process and unilaterally demanded that Viamedia raise any concerns within one week. Viamedia’s former counsel did not take a position on Defendants’ TAR proposal, and Viamedia’s current counsel met and conferred with Defendants three times to explain why the proposed TAR process is not appropriate for this case given the very small number of custodians; narrowed date ranges; lingering concerns over the sufficiency of Defendants’ production to DOJ, which used the exact same TAR process; the failure to use search terms pre-culling; Defendants’ apparent unwillingness to disclose the seed, training, and validation sets used; 7 and the lack of clarity about the training and feedback provided in conjunction with the TAR proposal. Although TAR has been adopted by some courts to conduct e-discovery, those cases typically involve millions of documents, extremely voluminous data sources, and agreement among the parties regarding the concept of TAR, the precise mechanics of the TAR process, or both. See, e.g., Moore v. Publicis Groupe, 287 F.R.D. 182, 189-93 (S.D.N.Y. 2012). Here, Viamedia objects to both the mechanics and exclusivity of the TAR process outlined by Defendants. While the parties currently disagree as to the exact scope of discovery, Defendants have agreed to search for files from only seven custodians, six of whom are likely to possess only documents for a period of two years or less. Defendants’ production thus far has included fewer than 100,000 documents. Defendants have made no showing to suggest that a linear review of these seven custodians’ files (or twelve custodians if the Court grants the present motion, see supra Part B), coupled with traditional investigation and inquiry regarding the location and production of discrete sets of responsive documents, would impose any undue burden. Indeed, although Viamedia’s current 7 These terms refer to sets of documents that are used to determine the kinds of documents that TAR returns. A "seed set" is an initial set coded and reviewed by people, which the software uses to predict the coding of other documents. The "training" and "validation" sets are used to refine and validate the accuracy of the software’s predictions.-10-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 11 of 14 PageID #:629 counsel is new to the case, it is already apparent that there are significant gaps in Defendants’ prior production to DOJ, which used the exact same TAR process, and Defendants have done nothing to assuage Viamedia’s concerns about the causes of those gaps. Viamedia’s production to DOJ, which used a combination of traditional keyword searches and predictive coding, yielded substantially more relevant files, as measured by both the volume and substance of files. Defendants’ process also fails to provide transparency regarding the document sets used to seed, calibrate, and validate the TAR coding. See Moore, 287 F.R.D. at 192 & n.14 ("[T]ransparency allows the opposing counsel (and the Court) to be more comfortable with computer-assisted review, reducing fears about the so-called'black box’ of the technology.... It also avoids the GIGO problem, i.e., garbage in, garbage out."). Simply put, Defendants have presented no persuasive basis to conclude that the process they have described will result in a meaningful and robust production of the most relevant files. To resolve these deficiencies, the Court should compel Defendants to review all documents that include search terms the parties agree to in good faith, and separately to collect discrete sets of documents responsive to Viamedia’s requests. Defendants bear the burden of showing that the review proposed by Viamedia is unduly burdensome, see Fed. R. Civ. P. 26(b)(2)(B) & 2006 advisory committee’s note, but they cannot make that showing here. The parties’ agreement on at least a subset set of document custodians alone substantially limits the scope and burden of the proposed review. The requests also cover a defined time period, further reducing the scope and burden. Application of reasonable search terms will reduce the scope and burden even further. There is no justification for using a TAR protocol over Viamedia’s objections and untethered to input from Viamedia, when that procedure will likely result in the withholding of a substantial number of responsive documents (as with Defendants’ prior production to DOJ), particularly where Defendants cannot show that the superior protocol proposed by Viamedia presents any undue-11-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 12 of 14 PageID #:630 burden. Cf. In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 360 (N.D. Ill. 2005) (collecting antitrust cases where review and production of millions of document pages was not unduly burdensome). CONCLUSION For the foregoing reasons, the Court should grant Viamedia’s motion to compel.-12-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 13 of 14 PageID #:631 Dated: April 20, 2017 Respectfully submitted,/s/Richard J. Prendergast__ James M. Webster, III (pro hac vice) Aaron M. Panner (pro hac vice) Kenneth M. Fetterman (pro hac vice) Derek T. Ho (pro hac vice) KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 jwebster@kellogghansen.com apanner@kellogghansen.com kfetterman@kellogghansen.com dho@kellogghansen.com Richard J. Prendergast Michael T. Layden Collin M. Bruck RICHARD J. PRENDERGAST, LTD. 111 W. Washington Street, Suite 1100 Chicago, Illinois 60602 (312) 641-0881 rprendergast@rjpltd.com mlayden@rjpltd.com cbruck@rjpltd.com Counsel for Plaintiff Viamedia, Inc.-13-Case: 1:16-cv-05486 Document #: 88 Filed: 04/20/17 Page 14 of 14 PageID #:632 CERTIFICATE OF SERVICE I, Richard J. Prendergast, an attorney of record in the above-captioned case, hereby certify that on April 20, 2017, I caused to be served a true and correct copy of Viamedia, Inc.’s Motion to Compel upon the following counsel via electronic means: Ross Benjamin Bricker Sally Kristen Sears Coder Thomas Edward Quinn Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654 (312) 222-9350 rbricker@jenner.com ssearscoder@jenner.com tquinn@jenner.com Arthur Burke David B. Toscano Davis, Polk & Wardwell 450 Lexington Street New York, NY 10017 (212) 450-4000 arthur.burke@dpw.com david.toscano@davispolk.com/s/Richard J. Prendergast-14-