Viamedia, Inc. v. Comcast Corporation et al

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

ORDER Signed by the Honorable Amy J. St. Eve on 4/13/2018: The Court denies in large part Viamedia's motion challenging confidentiality designations {{278}} {{281}}. The Court orders Charter to redesignate the provisions it no longer argues are "highly confidential" by 4/16/2018. The Court further orders that disclosure of the proposal Charter identifies in footnote 3 of its response brief {{292}} be made to the two individuals Viamedia identifies by 4/16/2018. [For further details, see Order.]Mailed notice

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Case: 1:16-cv-05486 Document #: 316 Filed: 04/13/18 Page 1 of 2 PageID #:13664 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VIAMEDIA, INC.,)) Plaintiff,) Case No. 1:16-cv-05486) v.) Hon. Amy J. St. Eve) COMCAST CORPORATION and) COMCAST SPOTLIGHT, LP,)) Defendants.) ORDER Six months after receiving a representation agreement between Time Warner Cable Inc. (later acquired by Charter Communications, Inc.) and Verizon Corporate Services Group, Inc. (the "TWC-Verizon contract") during third-party discovery, almost five months after third-party discovery closed, almost four months after Comcast's expert raised the fact of the TWC-Verizon contract—and the manner in which it arguably upends important parts of Viamedia's causation and damages cases—in his rebuttal report, two months after Comcast reiterated that point in its Daubert briefing, but three weeks before Viamedia's summary-judgment response is due, Viamedia filed on March 26, 2018, a motion challenging Charter's "highly confidential" designation of the TWC-Verizon contract in its entirety. After the Court offered Viamedia an opportunity to file a reply brief, it substantially revised its request, seeking instead to remove the designation only with respect to approximately four pages of the TWC-Verizon contract and for the sole purpose of sharing those pages with Viamedia's CEO and Chief Revenue Officer. Where, as here, a protective order has been entered, "the party seeking to protect documents under its shield 'must continue to show good cause for confidentiality when challenged.'" Glob. Material Techs., Inc. v. Dazheng Metal Fibre Co., 133 F. Supp. 3d 1079, 1084 (N.D. Ill. 2015) (quoting In re: Bank One Securities Litig. First Chi. Shareholder Claims, 222 F.R.D. 582, 586 (N.D. Ill. 2004)). "Conclusory statements—including 'broad allegations of potential harm' or competitive injury—are insufficient to meet the good cause standard." Id. (quoting Chicago Mercantile Exch., Inc. v. Technology Research Grp., LLC, 276 F.R.D. 237, 241 (N.D. Ill. 2011)). Third-party non-litigants, however, are subject to a "relaxed good-cause standard." Id. at 1089. Viamedia's counsel claims that that it needs to have its client—competitors of Charter—review the TWC-Verizon contract to determine if they have any "defenses" to Comcast's argument that a provision of that contract defeats Viamedia's claim that it would have won the advertising-representation business from Verizon but-for Comcast's allegedly anticompetitive conduct. Charter, joined by Verizon and Frontier Communications (which has since taken over some of Verizon's systems), argues that the information Viamedia wants revealed contains sensitive proprietary information that Charter's competitors, Viamedia and Comcast, could use against it. Case: 1:16-cv-05486 Document #: 316 Filed: 04/13/18 Page 2 of 2 PageID #:13665 The Court agrees with Charter. As an initial matter, to the extent Viamedia faces prejudice, it is prejudice of its own making. It agreed to a protective order squarely covering "representation agreements" as "highly confidential." (R. 44.) It could have employed an industry and causation expert to review and opine on the TWC-Verizon contract. Notwithstanding Viamedia's claim that it needs to "defen[d]" against Comcast's arguments based on the TWC-Verizon contract, Viamedia bears the burden of demonstrating that it would have won Verizon's business but-for Comcast's conduct. It should have taken care to review the agreement it lost out to before its expert staked half of his damages claim on that lost business. What is still more, Viamedia's counsel knew for almost a year when they would have to file summary-judgment briefs and knew about this issue for months; they had ample time to address it. Even when Viamedia brought the instant motion, it made a far more sweeping request than what it later retreated to in its reply brief, thereby wasting the Court's and the parties' times. Setting those issues aside, Charter has met its burden of showing good cause with respect to the disclosures Viamedia seeks. As to Section 23(b)(vi), Charter has established through affidavits and specific arguments that the performance metrics Viamedia seeks to disclose could well be "extrapolated to predict future strategies and practices," namely with respect to guarantees. Stanislaus Food Prod. Co. v. USS-POSCO Indus., No. 1:09-CV-00560-LJO, 2012 WL 6160468, at *2 (E.D. Cal. Dec. 11, 2012). This is of particular concern here, as Charter and Verizon are set to renegotiate the contract in the near future. Charter does not, however, object to the disclosure of Section 23(b)(i)–(v). As to Sections 23(c) and (d), Charter has shown that those termination provisions remain in effect today and could be used against it if revealed to competitors, including Viamedia and Comcast. The same is true for Section 26(c)(ii) and Section 26(c)(iv)(D), which contain sensitive information that Viamedia or Comcast could use against Charter in future negotiations with Verizon. Again, however, Charter does not oppose disclosure of Section 26(c)(i) and (iii), Section 26(c)(iv)(A)–(C), and Exhibit 26(c) paragraphs 1 and 3. The Court accordingly denies Viamedia's motion in large part. The Court orders the sections not claimed as "highly confidential" by Charter to be redesignated and permits them to be shared with the two individuals Viamedia has identified no later than Monday, April 16, 2018. Further, the Court orders that Viamedia be able to share with the two individuals it has identified the disclosure proposed by Charter in footnote 3 of its response brief (see R. 292 at 13 n. 3). This disclosure also must be made no later than Monday, April 16, 2018. Dated: April 13, 2018 ENTERED ______________________________ AMY J. ST. EVE United States District Court Judge 2