Viamedia, Inc. v. Comcast Corporation et al

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

RESPONSE by Comcast Corporation, Comcast Spotlight, Inc.in Opposition to MOTION by Plaintiff Viamedia, Inc. to compel {{88}}, SEALED MOTION by Plaintiff Viamedia, Inc. {{90}}

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Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 1 of 20 PageID #:1457 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION) VIAMEDIA, INC.,))) No. 16 C 5486 Plaintiff,)) Honorable Amy J. St. Eve v.)) COMCAST CORPORATION, and) COMCAST SPOTLIGHT, LP,)) Defendants.)) DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 2 of 20 PageID #:1458 TABLE OF CONTENTS INTRODUCTION.............................................................................................................. 1 ARGUMENT...................................................................................................................... 2 I. Viamedia’s Attempt to Depose Mr. Cohen Is Inappropriate........................... 2 II. The Court Should Reject Viamedia’s Attempt to Re-Trade the Parties’ Agreement on Document Custodians........................... 5 III. The Court Should Reject Viamedia’s Attempt to Re-Trade the Parties’ Agreement on the Relevant Time Period..................... 7 IV. There Is No Basis for the Court to Compel Comcast to Produce All of Its Communications with The DOJ, No Matter How Trivial, on an Ongoing Basis................................ 9 V. Viamedia’s Objections to Comcast’s Use of Technology Assisted Review ("TAR") Are Frivolous.................................. 12 CONCLUSION................................................................................................................. 15 i Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 3 of 20 PageID #:1459 TABLE OF AUTHORITIES PAGE(S) CASES In re Biomet M2a Magnum Hip Implant Prod. Liab. Litig., 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013)............................................................. 13 Block v. Abbott Labs., Inc., 2001 WL1539159 (N.D. Ill. Dec. 3, 2001).................................................................... 3 In re Bridgestone/Firestone, Inc. Tires Prods. Liability Litig., 205 F.R.D. 535 (S.D. Ind. 2002).................................................................................... 3 Burns v. Bank of Am., 2007 WL 1589437 (S.D.N.Y. June 4, 2007).................................................................. 3 Dyson, Inc. v. Sharkninja Operating LLC, 2016 WL 1613489 (N.D. Ill. Apr. 22, 2016)................................................................. 3 Espejo v. Santander Consumer USA, Inc., 2014 WL 6704382 (N.D. Ill. Nov. 25, 2014)................................................................ 3 Hyles v. New York City¸ 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016)......................................................... 13, 15 Guan Min Lin v. Benihana Nat’l Corp., 2010 WL 4007282 (S.D.N.Y. Oct. 5, 2010).............................................................. 2, 5 Murillo v. Kohl’s Corp., 2016 WL 6090862 (E.D. Wis. Oct. 18, 2016)............................................................... 3 Patterson v. Avery Dennison Corp., 281 F.3d 676 (7th Cir. 2002)......................................................................................... 2 Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015).................................................................................. 13 Viamedia v. Comcast Corp., 2016 WL 6568074 (N.D. Ill. Nov. 4, 2016)................................................................... 4 ii Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 4 of 20 PageID #:1460 STATUTES & RULES Fed. R. Civ. P. 26(a)........................................................................................................... 6 Fed. R. Civ. P. 26(b)......................................................................................................... 13 Fed. R. Civ. P. 26(b)(1)..................................................................................................... 10 Fed. R. Civ. P. 34.............................................................................................................. 10 Fed. R. Civ. P. 34(b)(2)..................................................................................................... 13 Fed. R. Civ. P. 37(a)(3)(B)(iv).......................................................................................... 10 OTHER AUTHORITIES The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 6........................................... 15 iii Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 5 of 20 PageID #:1461 Defendants Comcast Corporation and Comcast Cable Communications Management, LLC (successor to Comcast Spotlight, LP and together with Comcast Corporation, "Comcast") respectfully submit this opposition to Plaintiff Viamedia, Inc.’s ("Viamedia") motion to compel. INTRODUCTION Over the last five-plus months, counsel for Comcast and Viamedia spent significant time on two principal discovery issues: (1) negotiating the scope of supplemental discovery beyond the parties’ Department of Justice ("DOJ") productions; and (2) identifying and attempting to cure the numerous deficiencies in Viamedia’s DOJ production, including (i) Viamedia’s production of hundreds of supposedly privileged documents to third parties, (ii) its failure to provide usable images containing full recipient data that could be used during depositions or trial, (iii) its failure to conduct appropriate document collections, and (iv) its production of hundreds of thousands of documents without meaningful custodial values. On the first subject, the parties reached agreement on all but a few items before Viamedia decided to replace its outside counsel. On the second, the parties resolved some disputes, and others were close to ready for submission to the Court. Now, with new counsel in place, Viamedia has rushed to file a motion to compel that consists primarily of attempts to re-trade agreements on supplemental discovery reached by its prior counsel. As explained below, that motion lacks any merit and should be denied in its entirety. Indeed, the motion is nothing more than an attempt to distract the Court from Viamedia’s own inadequate document production, which Comcast will address shortly in separate motions to compel. Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 6 of 20 PageID #:1462 ARGUMENT I. Viamedia’s Attempt to Depose Mr. Cohen Is Inappropriate Viamedia’s attempt to compel the deposition of David Cohen is unfounded, overreaching and, at a minimum, premature at a time when Viamedia has yet to take a single deposition of any witness. Mr. Cohen is Senior Executive Vice President and the Chief Diversity Officer of Comcast Corporation. He also is a practicing attorney and Comcast’s most senior legal officer.1 He reports directly to Brian Roberts, Comcast’s CEO, his direct reports include the general counsel of Comcast Corporation, and he coordinates the overall legal functions across Comcast and NBCUniversal. Mr. Cohen has wide-ranging responsibilities across all of Comcast’s business lines, including: subscription multichannel video; high-speed Internet; IP telephony; the NBC television network; owned and operated NBC broadcast stations; cable networks (e.g., MSNBC, CNBC, USA, SyFy); Universal Pictures film studio; Universal theme parks; the Comcast Spotlight advertising business; and various enterprise telecommunications businesses. Because depositions of senior executive officers like Mr. Cohen can be used to harass defendants, courts frequently require a showing that "the high-ranking corporate official possesses knowledge that is both unique and relevant to the issues in the case." Guan Min Lin v. Benihana Nat’l Corp., 2010 WL 4007282, at *2 (S.D.N.Y. Oct. 5, 2010) (emphasis added); Patterson v. Avery Dennison Corp., 281 F.3d 676, 681-82 (7th Cir. 1 Citing Mr. Cohen’s web biography, Viamedia correctly notes that Mr. Cohen "has a broad portfolio of responsibilities," but apparently questions whether those responsibilities include legal issues. In fact, the same sentence selectively quoted by Viamedia states that Mr. Cohen "has a broad portfolio of responsibilities, including... legal affairs." http://corporate.comcast.com/news-information/leadership-overview/david-l-cohen (last visited Apr. 24, 2017) (emphasis added). 2 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 7 of 20 PageID #:1463 2002) (upholding denial of a deposition of a "high-ranking executive in a multinational corporation" where other employees more closely connected to the litigation were deposed and the plaintiff "failed to submit any interrogatories" to the senior executive, which "cast[] serious doubt over [plaintiff’s] claim that [the executive] possessed information that was more than marginally relevant to her civil action").2 For similar reasons, a court can bar a party from deposing an opponent’s attorney (like Mr. Cohen) when non-lawyers can provide the same information. See, e.g., Espejo v. Santander Consumer USA, Inc., 2014 WL 6704382, at *2 (N.D. Ill. Nov. 25, 2014) ("[W]here the deposition of an attorney can be avoided because the same information is available from other, non-privileged sources, it is prudent for the parties to pursue that course of discovery first.").3 Here, Mr. Cohen does not have day-to-day responsibilities relating to Comcast’s spot cable advertising business or any other issue relating to this litigation. Nonetheless, Viamedia seeks to depose Mr. Cohen because: (1) he provided a response to a single question regarding advertising interconnects in broad testimony to Congress in 2014 that 2 See also Murillo v. Kohl’s Corp., 2016 WL 6090862, at *3 (E.D. Wis. Oct. 18, 2016) (citing Burns v. Bank of Am., 2007 WL 1589437, at *3 (S.D.N.Y. June 4, 2007) (refusing deposition of high-ranking officer where officer lacked any "specialized" or "unique" knowledge and more knowledgeable subordinates were set to be deposed); cf. Block v. Abbott Labs., Inc., 2001 WL1539159, at *2-3 (N.D. Ill. Dec. 3, 2001) (rejecting second deposition of CEO absent showing CEO had information otherwise unavailable and party seeking information had exhausted all other avenues for obtaining it). 3 The cases cited by Viamedia are inapposite. Dyson, Inc. v. Sharkninja Operating LLC, 2016 WL 1613489 (N.D. Ill. Apr. 22, 2016), involved a party resisting the production of documents, not a deposition, and the record showed that the senior executive had "taken a hands-on role in designing and reducing to practice the products at issue." Id. at *2. Here, Comcast has already produced the relevant documents relating to Mr. Cohen’s interactions with Viamedia, which were limited to a single narrow topic. In In re Bridgestone/Firestone, Inc. Tires Prods. Liability Litig., 205 F.R.D. 535 (S.D. Ind. 2002), the court noted that "nearly all of the depositions in this case have already been conducted" and accordingly "the Court can therefore identify more readily the appropriate areas of questioning to be directed to" the senior executive. Id. at 537. By contrast, not a single deposition has taken has taken place in this matter. 3 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 8 of 20 PageID #:1464 covered a host of issues; and, (2) for a few months in 2014, Mr. Cohen responded to correspondence initiated by Mark Lieberman, Viamedia’s CEO, concerning a potentially new representation agreement (rejected by Viamedia) that would have enabled Viamedia to access Comcast’s interconnects in Chicago, Detroit, and Hartford. Neither topic supplies a sufficient basis to depose Mr. Cohen. First, both topics relate solely to Viamedia’s "refusal to deal" claim, which the Court dismissed with prejudice. As the Court has observed, the tying and exclusive dealing claims that remain relate to Comcast dealings with other MVPDs, not with Viamedia. See Viamedia v. Comcast Corp., 2016 WL 6568074, at *17 (N.D. Ill. Nov. 4, 2016). Viamedia cites nothing suggesting that Mr. Cohen has any discoverable knowledge on that topic. Second, Viamedia has not established that Mr. Cohen possesses any other unique, non-privileged information relevant to the case. Mr. Cohen’s congressional testimony was given in connection with a proposed merger of Comcast and Time Warner Cable. It covered a wide array of topics and lasted over two hours. Advertising interconnects came up once in passing, and Viamedia is well aware of that question and answer. (Am. Compl. ¶¶ 6, 46, 118.). That can hardly provide the basis for a deposition here. Mr. Cohen’s correspondence with Viamedia concerning a new representation agreement also provides no basis to depose him in this matter. Mr. Cohen’s responsibilities do not include negotiating such agreements; this is the only instance identified by Viamedia. Multiple other Comcast executives were involved in the same discussions, including the senior management of Comcast Spotlight, Charlie Thurston and Hank Oster. (Mot. Ex. I). There is therefore no reason to believe that Mr. Cohen has unique knowledge or relevant information that Viamedia cannot obtain from other 4 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 9 of 20 PageID #:1465 deponents at Comcast Spotlight, including Messrs. Thurston and Oster. To date, Viamedia has not deposed a single witness in this case.4 At a minimum, Viamedia must first depose Mr. Thurston and Mr. Oster—both of whom have been served deposition notices by Viamedia and both of whom participated in the 2014 discussions with Viamedia—before it may properly seek to depose Mr. Cohen. In short, Viamedia cannot demonstrate that (1) the topics on which it seeks to depose Mr. Cohen are relevant to this litigation, and (2) Mr. Cohen contains any unique, relevant, non-privileged information Viamedia cannot obtain from other deponents. As a result, Viamedia failed to satisfy the showing required to depose Mr. Cohen. See Benihana, 2010 WL 4007282, at *2. II. The Court Should Reject Viamedia’s Attempt to Re-Trade the Parties’ Agreement on Document Custodians Viamedia’s demand that Comcast add custodians for document discovery in this case is an attempt by Viamedia to re-trade an agreement that Comcast reached with Viamedia’s prior counsel Mayer Brown. As reflected in Comcast’s correspondence with Mayer Brown, the parties agreed to document custodians for supplemental discovery in this case after substantial good faith negotiations.5 On April 4, 2017, however, Viamedia’s new counsel demanded that Comcast agree to several additional custodians notwithstanding the prior agreement with Viamedia. Viamedia’s decision to change 4 In its motion Viamedia states that it "duly noticed" Mr. Cohen for deposition ten weeks ago. (Mot. at 3.) Viamedia fails to mention that on March 13 it withdrew the dates for this deposition, has not proposed new dates, and that the parties met and conferred about this and several other issues over the past months. See Ex. A (Email from M. Provance to C. Lynch (Mar. 13, 2017). 5 Ex. A (Email from M. Provance to C. Lynch (Mar. 13, 2017)) (reflecting agreement on document custodian refresh). 5 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 10 of 20 PageID #:1466 counsel midstream should not give Viamedia an opportunity to get a second bite at the apple and its demand should be rejected for this reason alone. Even setting aside the parties’ prior agreement on document custodians, Viamedia’s motion is misleading and meritless. Viamedia’s sole basis for demanding these additional custodians is that they appear on Comcast’s Rule 26(a) initial disclosure as individuals who may have discoverable information. We are aware of no authority— and Viamedia cites none—holding that individuals on a party’s Rule 26(a) disclosure are required to be document custodians in discovery. Indeed, there are four individuals on Viamedia’s own Rule 26(a) disclosure who are not included as "refresh" custodians by Viamedia for purposes of its supplemental productions. Moreover, Viamedia’s claim that Comcast "failed to include five of [the individuals on the Rule 26(a) disclosure] as document custodians" is false. Five of the individuals Viamedia claims were not document custodians—Kathleen DeAmicis, William Haase, Teresa Lucido, Mike Wall, and Michael Angelakis—were in fact DOJ document custodians, and Comcast has produced its entire DOJ document production to Viamedia. Thus, Viamedia already has received significant document discovery from these individuals. To the extent Viamedia now claims that document productions from all of these custodians should be "refreshed," Viamedia’s motion is moot as to Mike Wall and Michael Angelakis. Comcast agreed to refresh the documents of Mike Wall, and as we have informed Viamedia, Comcast cannot refresh the documents of Michael Angelakis because he left Comcast prior to the refresh period. As for the remaining individuals (Ms. DeAmicis, Mr. Haase, Ms. Koles, and Ms. Lucido), Viamedia’s prior counsel 6 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 11 of 20 PageID #:1467 proposed a "refresh" list that did not include those individuals.6 Viamedia’s new lawyers are now taking a position that flatly contradicts the one taken by Mayer Brown during meet and confers with Comcast. The Court should reject that gamesmanship. III. The Court Should Reject Viamedia’s Attempt to Re-Trade the Parties’ Agreement on the Relevant Time Period Before Viamedia hired its current counsel, it attempted to engage Kasowitz, Benson, Torres & Friedman LLP ("Kasowitz") as counsel in this case. Comcast objected to Kasowitz because (1) Comcast is a current client of Kasowitz, and (2) the Glaberson matter is substantially related to the present litigation. (See Mot. Ex. R.) Subsequently, Kasowitz informed Comcast that it would not represent Viamedia in this matter. Viamedia now exploits Comcast’s need to protect itself against Viamedia hiring Kasowitz by trying to turn Comcast’s letter against it. Initially, Viamedia on April 4, 2017 informally requested that Comcast extend the start date for all document discovery to 2007, citing Comcast’s letter to Kasowitz.7 Comcast declined Viamedia’s request by letter dated April 7, 2017. On April 18, 2017, Viamedia modified its request to seek only the documents cited in the letter to Kasowitz. Despite concerns with that request, Comcast agreed to consider it, but Viamedia filed the instant motion to compel before Comcast could respond. 6 Ex. B (Email from M. Provance to C. Lynch (Jan. 20, 2017)). 7 Ex. C (Letter from C. Lynch to K. Fetterman, at 3 (April 7, 2017)) ("During our last meet and confer discussion, you suggested that Comcast significantly expand the Pre-DOJ period and search for files dating back to April 2007.... We do not agree to your request to re-open this issue and add a period of several additional years."); Mot. Ex. N (Letter from K. Fetterman to C. Lynch, at 3 (April 11, 2017)) ("In light of prior correspondence regarding the Kasowitz firm... we inquired whether Comcast would agree to extend the relevant date range to at least April 2007 for its production."). 7 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 12 of 20 PageID #:1468 Viamedia’s effort to compel production of the documents in the Kasowitz letter fails for several reasons. First, there is no document request for these materials or to which these documents are responsive. By their own terms, Viamedia’s discovery requests limit the production of documents created after January 1, 2011.8 Second, Comcast spent a significant amount of time discussing the appropriate date period for the discovery requests with Mayer Brown and eventually reached an agreement to produce documents from certain custodians for 2011 (referred to as the "Pre-DOJ Period" in the parties’ correspondence). Viamedia’s current demand that Comcast produce documents from 2007 is yet another attempt to re-trade an agreement that the parties already reached. Third, there is no reason to believe that evidence from 2007 is anything other than cumulative of evidence from the period between 2011 and 2016. Comcast’s letter stated that "many aspects" of the cable spot advertising business have not changed since 2007— which meant that the confidences that Comcast imparted to the Kasowitz firm in 2007 remained relevant for purposes of a Rule 1.9 ethical analysis. But, of course, many other aspects have changed in the intervening decade. The fact that cumulative evidence may exist—which made it untenable for Kasowitz to be adverse to Comcast in this matter— does not provide a basis to extend the discovery period back four additional years. For these reasons, the Court should deny Viamedia’s motion to compel the 2007 documents. 8 Ex. D (Plaintiff Viamedia, Inc.’s First Requests for the Production of Documents to Defendants Comcast Corporation and Comcast Spotlight, LP), Definition No. 25 ("‘Relevant Time Period’ for purposes of these requests, unless otherwise indicated, means the time period from January 1, 2011 to the present.") (Nov. 21, 2016). 8 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 13 of 20 PageID #:1469 IV. There Is No Basis for the Court to Compel Comcast to Produce All of Its Communications with The DOJ, No Matter How Trivial, on an Ongoing Basis There is no basis for Viamedia’s request that the Court compel Comcast to produce all of its communications with the DOJ, regardless of how ministerial or trivial, on an ongoing basis. Comcast agreed months ago to produce all white papers and similar substantive submissions to the DOJ if Viamedia agreed to do the same; the parties also agreed to a discovery cut-off that did not go past December 31, 2016. Viamedia requested post-December 31, 2016 and all communications for the first time on Tuesday, April 18, and then moved to compel compliance with that oral request on Thursday, April 20. This request should be denied for multiple reasons. First, this request is contrary to the course of dealings between Comcast and Viamedia’s prior counsel on the question of DOJ submissions. On January 12, 2017, Viamedia’s then-counsel asked that Comcast produce any "white papers" submitted to the DOJ. Comcast said it would do so if Viamedia agreed to make a reciprocal production. Viamedia’s counsel explained that Viamedia’s substantive submissions to the DOJ were not necessarily formal white papers, but instead letters and other less formal documents. Based upon this exchange, Comcast offered in its letter of February 7, 2017 to produce any white papers or other similar substantive submissions to the DOJ provided that Viamedia would do the same.9 Viamedia did not respond to this proposal. Then, during a meet and confer on April 18, 2017, Viamedia for the first time suggested that Comcast should produce not just substantive submissions to the DOJ akin to white papers, but also all correspondence with the DOJ regardless of subject matter or 9 Ex. E (Letter from A. Burke to M. Provance, at 2 (Feb. 7, 2017)). 9 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 14 of 20 PageID #:1470 potential relevance to this case. Viamedia also demanded that the production obligation should be ongoing without any end date. Second, Viamedia’s motion lacks merit in any event. Rule 37 authorizes a motion to compel "if... a party fails to produce documents... as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B)(iv). Viamedia’s motion to compel fails to identify any document request pursuant to Rule 34 that calls for the production of ministerial communications with the DOJ, and there is none. Instead, Viamedia’s motion invokes a purported agreement between the parties. But Comcast has never agreed to produce ministerial or post-December 31, 2016 communications with the DOJ. (See Mot. at 9.)10 Viamedia is not entitled to all of Comcast’s communications with DOJ even if Viamedia had requested them pursuant to Rule 34. The communications at issue include, among other things, correspondence regarding the logistics of document production (e.g., production number prefixes), depositions (scheduling and videotaping), and scheduling meetings and conference calls. These communications have no relevance to any party’s claims or defenses, and therefore are beyond the scope of discovery under Rule 26(b)(1). Third, there is no basis to require Comcast to produce all of its communications with the DOJ on an ongoing basis. The parties negotiated for months over a cut-off date for document discovery. During these negotiations, Viamedia never requested a cut-off date later than December 31, 2016. In late March, the parties reached agreement that, 10 Viamedia’s motion cites the Initial Status Report and Proposed Case Schedule, (see Mot. at 8 (citing Dkt. No. 37 at 2-3)), but that report merely presents the parties’ competing proposals for exchanging documents "produced" to the DOJ. In fact, the Court ordered that the parties "exchange relevant DOJ documents by 12/4/16." Dkt. No. 38; accord 11/14/16 Court Conf. Tr. at 4. Both sides interpreted this command as embracing only the document productions themselves. See Ex. F (Letter from M. Provance to D. Toscano, at 1 (Dec. 5, 2016)). The motion also cites an April 14, 2017 letter from Davis Polk to Kellogg Huber, but it is clear from that letter that Comcast did not agree to produce ministerial or post-December 31, 2016 communications. 10 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 15 of 20 PageID #:1471 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 16 of 20 PageID #:1472 Under these circumstances, the Court should not permit Viamedia to use this litigation to obtain ongoing intelligence about Comcast’s dealings with the DOJ, which could then be used to the tactical disadvantage of Comcast. V. Viamedia’s Objections to Comcast’s Use of Technology Assisted Review ("TAR") Are Frivolous Finally, Viamedia’s objections to Comcast’s plan to use Technology Assisted Review ("TAR") for its supplementary document production lack merit. Comcast’s TAR proposal is eminently reasonable and commonly used in civil litigation and government investigations. Viamedia’s objections in this case are particularly unfounded because Viamedia itself used TAR when producing documents to the DOJ. Comcast explained its TAR proposal in detail to Mayer Brown during a meet-and-confer session held on March 15, 2017. During that discussion, Mayer Brown expressed no concerns about Comcast’s proposal; to the contrary, Mayer Brown indicated that 14 12 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 17 of 20 PageID #:1473 Viamedia was considering a similar approach.15 That is not surprising given that, as noted, Viamedia used TAR for its DOJ production.16 Mayer Brown asked Comcast to memorialize its TAR proposal in writing, which Comcast did on March 23, 2017. In the interests of advancing document discovery, Comcast requested that Viamedia raise any objections with the proposal by March 31, 2017. No objections were raised by that date and Comcast commenced its review process. Now, Viamedia’s new counsel objects to the use of this process, but without providing a single coherent reason for its objection. Courts have held "that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it." Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015); see also In re Biomet M2a Magnum Hip Implant Prod. Liab. Litig., 2013 WL 1729682, at *2 (N.D. Ind. Apr. 18, 2013) (holding predictive coding approach "complies fully" with Rules 26(b) and 34(b)(2) and is not "inconsistent with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information"). Contrary to Viamedia’s claim that a search term approach is a "superior protocol" (Mot. at 11), courts now recognize that "in general, TAR is cheaper, more efficient, and superior to keyword searching." Hyles v. New York City¸ 2016 WL 4077114, at *2 (S.D.N.Y. Aug. 1, 2016). 15 Ex. G (Letter from C. Lynch to M. Provance, at 4 (Mar. 23, 2017)) ("Further, we have no objection to Viamedia utilizing a similar method (as you suggested Viamedia is considering).") (emphasis added). 16 13 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 18 of 20 PageID #:1474 Viamedia’s main issue17 with Comcast’s approach appears to be that Comcast’s DOJ production "included fewer than 100,000 documents." (Mot. at 10). Viamedia evidently believes that Comcast’s DOJ production did not involve a large enough document production and resulted in purported "significant gaps." (Mot. at 11). Comcast’s DOJ production, however, is complete and Viamedia’s complaints are wholly unfounded and have nothing to do with TAR in any event. Tellingly, Viamedia had Comcast’s DOJ production for over five months during which Mayer Brown never raised these objections. Viamedia raises them now—five months after receiving the production—only as a pretext to file this motion. As we have explained to Viamedia,18 the total volume of documents produced to the DOJ by Comcast was the result of a combination of (1) the number of document custodians negotiated with the DOJ, (2) Comcast’s document retention policies, and (3) the scope of the DOJ’s document requests. Viamedia has not and cannot identify any "significant gaps" in Comcast’s DOJ production at all,19 much less any gaps attributed to the TAR culling method. 17 Viamedia also complains about Comcast’s "failure to use search terms pre-culling." Unlike Viamedia, Comcast did not utilize any search terms to cull documents before implementing its TAR protocol for the DOJ production. This is a puzzling complaint by Viamedia because the use of search terms before implementing TAR is an approach disfavored by the DOJ. See Tracy Greer, "Technology Assisted Review and Other Discovery Initiatives at the Antitrust Division," at 3 (Mar. 26, 2014), available at www.justice.gov/sites/default/files/atr/legacy/2014/03/27/304722.pdf ("[W]e are reluctant to permit a responding party to use search terms to collect documents that thereafter will be processed by a TAR platform. The use of search terms, with their well-known limitations, has the potential to exclude many responsive documents from the collection and, thus, to render ineffective the TAR platform."). 18 Mot. Ex. P (Letter from C. Lynch to K. Fetterman (April 14, 2017)). 19 Viamedia’s complaints about Comcast’s DOJ document production are particularly misplaced given the poor quality of Viamedia’s DOJ production. Comcast identified numerous material defects in Viamedia’s DOJ production in January 2017. To date, Viamedia has not corrected most of these defects, which have substantially impeded Comcast’s ability to conduct meaningful discovery in this case. Comcast intends to bring these issues before the Court shortly. 14 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 19 of 20 PageID #:1475 Viamedia also takes issue with Comcast’s "apparent unwillingness to disclose the seed, training, and validation sets used." (Mot. at 10.) That is a red herring. Viamedia never once raised those questions in its discussions with Comcast. Presenting those issues for the first time in a motion to compel is inconsistent with Viamedia’s obligations under the Court’s Local Rules to meet and confer. For the avoidance of doubt, Comcast is willing to meet and confer with Viamedia regarding transparency over Comcast’s approach, provided of course that Viamedia is willing to be similarly transparent concerning whatever document production methodology it decides to utilize. To date, Viamedia has not responded to repeated requests from Comcast on this subject. In the end, Viamedia seeks to micromanage how Comcast conducts its document review and production in this case, which is a tactic that courts have rejected. See Hyles, 2016 WL 4077114, at *3 ("Under Sedona Principle 6, the... responding party is best situated to decide how to search for and produce ESI responsive to document requests."); The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 6 ("Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information."). As noted above, Comcast has explained its TAR proposal in detail to Viamedia and Viamedia has failed to articulate any rational objection to it. As a result, this Court should reject Viamedia’s request here. CONCLUSION For the foregoing reasons, the Court should deny Viamedia’s motion to compel. 15 Case: 1:16-cv-05486 Document #: 94 Filed: 04/24/17 Page 20 of 20 PageID #:1476 Dated: April 24, 2017 Respectfully submitted, COMCAST CORPORATION AND COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC/s/Ross B. Bricker Ross B. Bricker Sally K. Sears Coder JENNER & BLOCK LLP 353 N. Clark Street Chicago, Illinois 60654 Tel: (312) 222-9350 Fax: (312) 527-0484 rbricker@jenner.com ssearscoder@jenner.com Arthur J. Burke (pro hac vice) David B. Toscano (pro hac vice) DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Tel: (212) 450-4000 Fax: (212) 701-5800 Arthur.Burke@davispolk.com David.Toscano@davispolk.com Attorneys for Defendants Comcast Corporation and Comcast Cable Communications Management, LLC 16 #89592182v20