Viamedia, Inc. v. Comcast Corporation et al

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

TRANSCRIPT OF PROCEEDINGS held on 4/25/17 before the Honorable Amy J. St. Eve. Court Reporter Contact Information: Joseph Rickhoff, 312-435-5562, joseph_rickhoff@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 5/30/2017. Redacted Transcript Deadline set for 6/8/2017. Release of Transcript Restriction set for 8/7/2017.

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Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 1 of 23 PageID #:1668 1 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS 2 EASTERN DIVISION 3 VIAMEDIA, INC.,) Docket No. 16 C 5486 4) Plaintiff,) 5) vs.) 6) COMCAST CORPORATION AND) 7 COMCAST SPOTLIGHT, INC.,) Chicago, Illinois) April 25, 2017 8 Defendants.) 8:35 o'clock a.m. 9 TRANSCRIPT OF PROCEEDINGS - STATUS & MOTION 10 BEFORE THE HONORABLE AMY J. ST. EVE 11 APPEARANCES: 12 13 For the Plaintiff: KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, PLLC 14 BY: MR. JAMES M. WEBSTER, III MR. KENNETH M. FETTERMAN 15 1615 M Street, NW, Suite 400 Washington, D.C. 20036 16 RICHARD J. PRENDERGAST, LTD. 17 BY: MR. RICHARD J. PRENDERGAST 111 W. Washington St., Suite 1100 18 Chicago, Illinois 60602 19 For the Defendants: DAVIS, POLK & WARDWELL 20 BY: MR. ARTHUR BURKE MR. CHRISTOPHER LYNCH 21 450 Lexington Street New York, New York 10017 22 JENNER & BLOCK, LLP 23 BY: MS. SALLY K. SEARS CODER 353 North Clark Street 24 Chicago, Illinois 60654 25 Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 2 of 23 PageID #:1668 2 1 APPEARANCES (Cont'd): 2 Court Reporter: MR. JOSEPH RICKHOFF 3 Official Court Reporter 219 S. Dearborn St., Suite 1232 4 Chicago, Illinois 60604 (312) 435-5562 5 * * * * * * * * * * * * * * * * * * 6 PROCEEDINGS RECORDED BY 7 MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 3 of 23 PageID #:1668 3 1 THE CLERK: 16 C 5486, Viamedia vs. Comcast. 2 THE COURT: Good morning. 3 MR. WEBSTER: Good morning, your Honor, Jim Webster 4 for the plaintiff. 5 MR. PRENDERGAST: Good morning, your Honor, Richard 6 Prendergast for the plaintiff. 7 MR. FETTERMAN: Good morning, your Honor, Ken 8 Fetterman for the plaintiff. 9 MS. SEARS CODER: Good morning, your Honor, Sally 10 Sears Coder, Arthur Burke and Christopher Lynch for the 11 defendants. 12 THE COURT: Good morning. 13 You are here on the motion to compel and also for 14 status. I have received your motion to compel and defendants' 15 response. I also have your joint motion to extend the case 16 management schedule. 17 Let's talk about the motion to compel first. 18 I know your response was filed last night, so I am 19 assuming the answer is no; but, have you made any progress or 20 resolved any of the issues raised since you filed your motion? 21 MR. WEBSTER: Not in the motion, your Honor, no. 22 We've been discussing other issues and have made great 23 progress on those, but not the subject of the motion. 24 THE COURT: Okay. Let's talk about the motion to 25 compel, then. Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 4 of 23 PageID #:1668 4 1 I have read the response. 2 You have raised multiple issues in the motion. 3 The first request is to compel the deposition of 4 David Cohen, the Senior VP. What is the relevance of 5 Mr. Cohen's deposition to the issues that are left in the 6 case? 7 MR. WEBSTER: Well, the case concerns the use of the 8 control of the Interconnect to exclude Viamedia and MVPDs from 9 the Interconnect unless they gave their control of local spot 10 cable advertising. 11 THE COURT: How is it relevant to the tying claim, 12 which is left, and not the refusal to deal, which was 13 dismissed? 14 MR. WEBSTER: They tied their control of the 15 Interconnect to representation in the local spot cable 16 advertising. And, so, Mr. Cohen was directly involved in the 17 use of the Interconnect to compel the MVPDs to hire or retain 18 Comcast to represent them in local spot cable advertising. 19 THE COURT: Do you know what his involvement was? 20 MR. WEBSTER: He was directly involved in the 21 negotiations that led to the exclusion of Viamedia and, 22 therefore, its MVPD clients from the Interconnect. 23 THE COURT: Have you served any interrogatories on 24 this request or this issue yet? 25 MR. WEBSTER: No, I don't believe we have served Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 5 of 23 PageID #:1668 5 1 interrogatories on it. We have -- 2 THE COURT: And no other depositions have taken place 3 yet; is that correct? 4 MR. WEBSTER: Well, the other depositions that have 5 taken place were taken by the Department of Justice, and we 6 have three of those. 7 THE COURT: Okay. 8 MR. WEBSTER: We have those transcripts. 9 THE COURT: I have read your response. 10 I am denying without prejudice as premature your 11 request to depose Mr. Cohen at this time. He is a 12 higher-level executive at Comcast. That does not mean he will 13 never be deposed in this case, but let's take first steps 14 first and see how necessary, if at all, his deposition really 15 is. I am denying it without prejudice so we can revisit that 16 at the appropriate time if we need to. 17 The next issue you have raised is seeking to compel 18 additional 26(a)(1) document custodians. In defendants' 19 response, they have indicated they had an agreement with Mayer 20 Brown, the prior counsel, before you came in. 21 Do you agree that they had that agreement? 22 MR. WEBSTER: We agree that they had that agreement. 23 THE COURT: I am not revisiting agreements. New 24 counsel coming in does not mean you get to undo what has 25 already been done. Thank you for being candid with that. Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 6 of 23 PageID #:1668 6 1 Unless there is some loophole or caveat to the prior 2 agreement that you think you fall within -- which I certainly 3 did not see in your submission -- what was agreed to was 4 agreed to, and that is not going to be revisited. So, I will 5 assume your silence means there is no -- 6 MR. WEBSTER: Well -- 7 THE COURT: -- loophole or nothing that you have 8 pointed out. 9 MR. WEBSTER: I never like it when a judge assumes my 10 silence, so I will say something. 11 I assume, though, that going forward, to the extent 12 new evidence comes to light in discovery that makes us 13 reconsider those agreements, we are free to bring that to the 14 attention of the Court? 15 THE COURT: You can always re-raise issues in good 16 faith if you think you need to. 17 MR. WEBSTER: Thank you. 18 THE COURT: So, I am denying your request to compel 19 additional document custodians in light of the prior agreement 20 with prior counsel, Mayer Brown, for the plaintiff. 21 The next request is documents relating to the 22 Glaberson case. You objected to -- Comcast objected to -- 23 counsel coming in, both on the record and in a letter to 24 Viamedia, because they were representing Comcast in the 25 Glaberson case, a 2003 antitrust case. And you put in there a Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 7 of 23 PageID #:1668 7 1 lot of relevance reasons. Plaintiff is now seeking those 2 documents, which seem to be relevant to me. 3 MR. BURKE: What I'd say, your Honor, is the parties 4 had a long negotiation about what the discovery period would 5 be, and I think everyone agreed we'd go back to 2011. One can 6 always go back further. It's possible that there might be 7 relevant documents earlier than 2011, but the further you go 8 back, the less relevant they become and the burden increases. 9 So, we think there's no reason to go back to 2007 for these -- 10 you know, these -- particular documents. 11 And recall the way this started was that Viamedia 12 asked to go the entire period back to 2011 -- 2007. And I 13 assure you that after we produce these documents, they're 14 probably going to come back and again say, give us more. So, 15 I think this is an effort -- fundamental effort -- to re-trade 16 the discovery period, and there's just no basis for this. At 17 most, this stuff is cumulative, and it's -- the further back 18 in time you go, the less relevant it becomes. 19 THE COURT: This is different, though, than your 20 prior agreement because the requests for production indicate 21 that you would go back to 2011 unless otherwise indicated. 22 And here, given the letters with respect to the Glaberson case 23 and the information put in there objecting to counsel coming 24 in, "otherwise indicated" exists. 25 MR. BURKE: We're not contending that they can't -- Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 8 of 23 PageID #:1668 8 1 this is an example where they, I think, have cited a new 2 development. We just don't think the new development is 3 sufficient to change the reasoning behind the original 4 agreement. 5 THE COURT: In light of your own representations in 6 those letters and in court, I am granting the request as to 7 the Glaberson documents. And those should be turned over -- 8 How long do you need to produce those? 9 MR. BURKE: Not very long. This week, your Honor, 10 I'm sure, or early next week at the latest. 11 THE COURT: Let's say a week from today. 12 MR. BURKE: Sure. 13 THE COURT: If you can get them sooner, that is 14 great. 15 So, produce the Glaberson documents by May 2nd. 16 MR. BURKE: And I will say, your Honor, as a preview, 17 we don't think it's appropriate, no matter what these 18 documents say, to try to expand this discovery period four 19 more years. When the plaintiff raised this originally, we 20 said, are you guys going to do that, as well? We never got an 21 answer to that. So, I fear we're going to be before you on 22 that issue. 23 And I will think it's inappropriate to try to 24 increase this whole -- given the vast amounts of materials 25 that have been produced, to try to push this back four more Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 9 of 23 PageID #:1668 9 1 years. 2 THE COURT: My ruling today pertains to the Glaberson 3 documents. 4 MR. BURKE: Understood, your Honor. Thank you. 5 THE COURT: DOJ documents. A couple of issues here. 6 Do you agree that there was an agreement, Mr. 7 Webster, between prior counsel and Comcast that the December 8 31st, 2016, cutoff would apply? 9 MR. FETTERMAN: I don't believe that that agreement 10 applied to all documents related to the DOJ production. The 11 prior communications on this issue, Comcast agreed to produce 12 a white paper. Those discussions were confined and really 13 narrowly tailored. This is a much broader issue. I don't 14 believe there's an agreement to say we won't produce any DOJ 15 documents after December 31st, 2006. I'm not aware of that. 16 THE COURT: Mr. Burke? 17 MR. BURKE: Yeah. Again, we had a long discussion 18 with plaintiffs about what the discovery cutoff would be. And 19 I think we all agreed in a correspondence dated March 4, 20 2017 -- March 17 rather, 2017 -- that the general discovery 21 cutoff in the case would be July 31st, and that for certain 22 exceptions it would be December 31st. So -- and, again, I 23 think that's a reasonable thing to do. One needs a discovery 24 cutoff. 25 What plaintiffs are seeking here is essentially an Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 10 of 23 PageID #:1668 10 1 obligation for us to, into perpetuity throughout this entire 2 case, continually produce to them any documents that we 3 exchange with the Department of Justice. And we think that's 4 inappropriate. There has to be a cutoff of some sort for 5 discovery, some sort of finality so we can proceed with the 6 case. 7 THE COURT: Are you still producing documents to DOJ? 8 MR. BURKE: We are still having correspondence with 9 them periodically, yes, your Honor. 10 And what I would say -- 11 THE COURT: When you say "having correspondence," are 12 you writing letters or are you producing documents? 13 MR. BURKE: Yeah, primarily writing letters. I think 14 some of those letters may have attachments to them, so -- but 15 it's primarily letters at this point. 16 THE COURT: Between December 31st and April 25th, how 17 many letters have you sent to the DOJ? 18 MR. BURKE: I mean, I'd say -- 19 THE COURT: Is this a two-way street, or are you just 20 sending? 21 MR. BURKE: We've received, I think, maybe two 22 letters from the DOJ. We produced probably two or three 23 substantive letters, and we've had a bunch of e-mail 24 correspondence. 25 To be frank, your Honor, I don't think it matters to Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 11 of 23 PageID #:1668 11 1 me whether it's December 31 or April. I just don't think it's 2 appropriate for us to have an ongoing discovery obligation to 3 give everything we give to the DOJ to the plaintiffs, 4 irrespective of whether it's relevant to the case. 5 Viamedia's been lobbying the Department of Justice 6 against my client for the last three years. And to have them 7 get realtime insight into our -- what's going on with the 8 Department of Justice via this case, which then could easily 9 affect their lobbying strategy vis-a-vis the Department of 10 Justice, is inappropriate. 11 So, I don't -- again, whether the cutoff is today or 12 December 31, I don't particularly care; but, I do think there 13 has to be a cutoff. And it's not appropriate for them to get 14 ongoing insights into our dealings with the Department of 15 Justice. 16 THE COURT: Mr. Webster, address the cutoff first, 17 and then I know there is a ministerial issue, as well. But 18 address the cutoff date first. 19 MR. WEBSTER: We don't think it's appropriate at all 20 to have any cutoff date. If DOJ files a complaint against 21 Comcast, DOJ will produce to Comcast everything that we have 22 provided to DOJ. All of our communications. All of our 23 documents. That is what would happen. They don't -- 24 THE COURT: Well, I assume you are producing those -- 25 MR. WEBSTER: We are -- Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 12 of 23 PageID #:1668 12 1 THE COURT: -- to Comcast. 2 MR. WEBSTER: We are totally amenable to providing 3 everything that we give to DOJ to them. We think they should 4 do the same. It makes sense. This is the material that is 5 most relevant to the case. There's no reason to have to go 6 through interrogatories and depositions and search terms and 7 detailed searches when the information that's most relevant 8 has been targeted and provided to DOJ. And if the DOJ case 9 goes forward, they're going to get all of that from us anyway. 10 So, then we'd just be back here again saying, well, they've 11 gotten all of our material; we should get theirs. 12 THE COURT: It seems to me that the underlying 13 subject matter of what is being produced is what should be 14 relevant here, not the fact that they produced it to the 15 government. 16 MR. WEBSTER: I'm not interested in the fact that 17 they produced it to the government. I'm interested in the 18 actual substantive material they provided, any communications. 19 They have said, well, we'll provide -- we won't provide 20 ministerial documents. 21 THE COURT: We will get to that in a minute. I am 22 just trying to talk about the cutoff first. 23 Mr. Burke? 24 MR. BURKE: Again, your Honor, I think -- I assume 25 the same counsel that's representing Viamedia in this matter Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 13 of 23 PageID #:1668 13 1 is going to represent them vis-a-vis the Department of 2 Justice. To be frank, I think, as we've said all along, the 3 issues the DOJ has looked into actually deviated in 4 significant ways from this. But I don't think it's 5 appropriate for them to have realtime insights into our 6 dealings with the DOJ via this case. It's a big "if" if the 7 DOJ's ever going to bring a complaint. We can address 8 discovery that might arise in that event. We don't think, you 9 know, that's going to occur. 10 So, from our perspective, you know, we'll cross that 11 bridge when we come to it. But it's not appropriate -- in 12 every other instance, there's a discovery cutoff. There 13 should be on this issue, as well. 14 THE COURT: I am going to make, for now, April 1st of 15 2017 as a cutoff, both sides, for relevant information 16 produced to the Department of Justice that is relevant to this 17 case. 18 My understanding from your status a couple months ago 19 is that the DOJ's investigation was broader than what is at 20 issue in this case. To the extent it is broader, as I believe 21 I said before, that's not something that is relevant or needs 22 to be turned over. 23 Beyond April 1st, if there is a request, I will 24 likely look at it ex parte in camera and see if it is 25 something that is relevant. But for now, both sides, relevant Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 14 of 23 PageID #:1668 14 1 discovery pertaining to the DOJ investigation through April 2 1st, 2017 -- both sides -- should be turned over. 3 Your other objection is to "ministerial." I do not 4 know what that means. 5 MR. BURKE: I think it goes to your point about 6 relevance, your Honor. We exchanged probably hundreds of 7 e-mails with the Department of Justice about, you know, 8 selecting custodians, doing -- you know, scheduling conference 9 calls to scheduling meetings. Those things aren't relevant to 10 this case. 11 The things that are relevant to this case are the 12 things that discuss market definition; that discuss 13 competition; that discuss the role of Viamedia and other 14 representation services. We're willing to give all that stuff 15 right away. But I don't think it's appropriate or 16 necessary -- it's not even responsive to any of their requests 17 -- to produce a request for a conference call or a meeting 18 invite. And I don't think that they're entitled to that. 19 THE COURT: Here is what the concern is: That you 20 are creative lawyers and "ministerial" does not -- you know, a 21 creative lawyer may be able to do something with that. 22 I cannot imagine, Mr. Webster, you are interested in 23 e-mail communications setting up conference calls or meetings. 24 If you are, you are going to have a pretty large hurdle 25 convincing me why you are interested in that. Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 15 of 23 PageID #:1668 15 1 I want you to meet and confer and see if you can 2 reach agreement on what "ministerial" means. 3 MR. BURKE: Sure. 4 THE COURT: You should be able to do that. 5 MR. BURKE: And I think, your Honor, we're prepared 6 to produce the stuff, you know, immediately. I think Viamedia 7 is going to get a very large production of materials that are 8 quite robust. I think that will facilitate that discussion 9 and perhaps assuage the concerns that we're trying to play 10 some kind of game here. There's a lot of stuff. They're 11 going to get it. 12 THE COURT: Okay. 13 So, have those discussions and see if you can agree 14 to a workable solution on what "ministerial" means along the 15 lines that we have discussed. 16 And, finally, the TAR coding. I am going to need 17 more information on this from both sides if you cannot reach 18 agreement on this. My guess is there are a lot of documents 19 in this case. 20 Is that a fair guess? 21 MR. BURKE: We just conferred, and I think we've 22 determined that if you put them in Bankers Boxes, we would 23 have about almost 360 Bankers Boxes full of documents that we 24 would have produced if you printed them all out. So, yeah, 25 it's a lot. And Viamedia's also produced a very substantial Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 16 of 23 PageID #:1668 16 1 volume. 2 THE COURT: From a volume standpoint, predictive 3 coding probably makes some sense in this case, but certainly 4 there has to be transparency about it. So, I want you to meet 5 and confer on this. If you cannot reach agreement, you are 6 going to have to come back here with your techie people to 7 answer my questions and give me more information on this. 8 So, I am granting your motion to compel, in part; I 9 am denying it, in part; I am denying it without prejudice, in 10 part; and, I am ordering you to meet and confer with respect 11 to the "ministerial" definition on the DOJ production, and I 12 am directing you to meet and confer with respect to the TAR 13 request. There is some good case law out there, but I do not 14 believe either of you cited it. 15 I know you were rushed in your response, but there is 16 some helpful case law out there on TAR. 17 But I need to hear from the techie people who can 18 explain this to me a little bit more thoroughly and explain 19 your concerns if we are going to go down that route. 20 I would like you to file with the Court a status 21 report on both of those issues by May 10th, and hopefully you 22 will tell me you have resolved both of them. If not, I will 23 give you further direction. 24 You are also here on status. What is the status 25 otherwise? Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 17 of 23 PageID #:1668 17 1 MR. WEBSTER: The status is we have the joint motion 2 to extend the -- 3 THE COURT: Other than that. I have the motion. But 4 what is the status of the case? 5 MR. WEBSTER: Status otherwise is we are the third 6 choice as counsel for the plaintiffs. I'm glad we're not the 7 fourth. And, so, there's been transition, but we're getting 8 up to speed very fast. 9 We've obviously got to the point where we can file 10 this motion. We've had numerous meet-and-confers already with 11 the other side. We had three phone calls, numerous letters 12 and e-mails. We're making a lot of progress and hope to 13 complete document production soon. 14 I think the one issue that I think was unclear from 15 your ruling regarding Mr. Cohen was even if you had granted 16 the motion regarding Mr. Cohen, we would want documents from 17 him. We do want to get the documents before we depose 18 anybody. And I think it was -- I am not sure if it was clear 19 in our motion or not, but we would like documents from Mr. 20 Cohen that are responsive because he obviously was involved in 21 the negotiations at the heart of the matter. 22 THE COURT: The focus of the motion was for his 23 deposition. Why don't you see if you can reach agreement on 24 the documents. 25 MR. WEBSTER: We'll do that, your Honor. Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 18 of 23 PageID #:1668 18 1 MR. BURKE: I think we've actually produced those 2 documents already, your Honor. So, I don't think that will be 3 a problem. 4 THE COURT: Maybe you can pinpoint with Bates 5 numbers -- 6 MR. BURKE: We'll be happy to do that. 7 THE COURT: -- or whatever numbering system you are 8 using. 9 MR. BURKE: I guess, just -- are you -- 10 THE COURT: I am not sure if -- 11 Are you done, Mr. Webster? Do you want to add 12 anything else in terms of status? 13 MR. WEBSTER: I don't think I have anything else to 14 add, your Honor. 15 THE COURT: Okay. 16 MR. BURKE: And all I would say, your Honor, I agree 17 that we're moving forward and working cooperatively on many 18 issues. I do think we're going to be presenting a number of 19 motions to you, as well. 20 Just as a preview, one would be a motion relating to 21 the waiver of privilege as a result of Viamedia's production 22 of many large numbers of documents to third parties and also 23 probably some motions relating to the document production of 24 Viamedia. We're still hopeful we can work those issues out, 25 but I think we're coming close to the end of the discussion on Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 19 of 23 PageID #:1668 19 1 those. So, we'll continue to talk with them, but I suspect 2 that if we're not able to reach those, you'll be seeing a 3 motion within the next week on those questions. 4 THE COURT: Okay. 5 One thing about motions. I know that you have just 6 come into the game as third counsel, as you put it. I have 7 probably said this before, but I will repeat it since you were 8 not here. You are all highly talented lawyers. I take Local 9 Rule 37.2 very seriously. You really need to meet and try to 10 work these issues out before running in to the Court. If you 11 cannot resolve them, that is what I am here for. But I do not 12 look favorably upon motions that I think you could have 13 resolved by sitting in the same room and trying to resolve 14 them. That is your job, not mine. You know a lot more about 15 the case than I do. So, you really should put that time in. 16 I realize there are issues -- especially in a 17 high-stakes case like this -- that you may not be able to work 18 out, and that is what I am here for. But if I do not think 19 that you have tried to work them out in good faith, I am going 20 to start denying them and directing you to go back and make an 21 attempt. 22 I know you are catching up, Mr. Webster. You may not 23 know or appreciate yet the full scope of other commitments 24 that were already made or other agreements. We are not here 25 to undo those other agreements. That is unfortunately the Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 20 of 23 PageID #:1668 20 1 position you find yourself in coming in as substitute counsel. 2 But you understand you will work with those. 3 I fully expect you and your team, Mr. Burke, to do 4 what you can to resolve these issues before coming in. 5 If you cannot resolve them in good faith, that is 6 what I am here for. But you are all highly skilled lawyers. 7 So, I think the majority of them that you can. 8 MR. WEBSTER: Your Honor -- 9 THE COURT: I will turn -- 10 MR. WEBSTER: -- I do want to say it wasn't clear in 11 the papers, but we were -- there was agreement that we were at 12 impasse on these issues. So, we did meet and confer 13 extensively. We take those obligations very seriously. We 14 look forward -- 15 THE COURT: Good. 16 MR. WEBSTER: -- to meeting and conferring -- 17 THE COURT: You should. 18 MR. WEBSTER: -- on the issues. 19 THE COURT: Just make sure that you do. 20 I have your joint motion to extend the case 21 management schedule. I will grant that, and today's order 22 will reflect those new dates. 23 I am going to raise what I did before: Settlement. 24 Any interest or still premature? It sounds like you have not 25 gotten a substantial portion of the production yet, so you Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 21 of 23 PageID #:1668 21 1 probably need that at a minimum. Sometimes new counsel coming 2 in can bring fresh eyes. 3 MR. WEBSTER: We're always happy to discuss 4 settlement, your Honor. 5 MR. BURKE: Your Honor, the history here is that 6 Viamedia came to Comcast and made a proposal to them back, I 7 think, in January; Comcast made a counterproposal; and, then, 8 there was some questions raised by Viamedia about that. 9 Comcast replied to that. That was the subject of conversation 10 at one of the last status conferences. The last communication 11 we received from Viamedia was that based on our 12 counterproposal, they weren't interested in talking to us. 13 So, that is sort of news to us, actually. 14 THE COURT: Based on the counterproposal -- I am 15 sorry, I did not hear. 16 MR. BURKE: The counterproposal that Comcast made to 17 Viamedia that they said essentially was so far apart that they 18 didn't think further discussions were warranted. 19 So, it's interesting to us that they're interested in 20 conversations now. 21 THE COURT: Have those further discussions, please, 22 before you come back and we will revisit the question. I have 23 said this before and I will repeat it since you were not here, 24 Mr. Webster. Magistrate Judge Finnegan is your assigned 25 magistrate judge. She is excellent, and she is excellent at Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 22 of 23 PageID #:1668 22 1 complicated case. So, if there is any interest, I would 2 strongly suggest that you consider going to see her. 3 Why don't you come back here, if I do not see you 4 before then, in early to mid-June. 5 (Brief pause.) 6 THE CLERK: June 9th at 8:30. 7 THE COURT: Does that work okay? 8 MR. BURKE: Works for me, your Honor. 9 THE COURT: Just one more note. The other thing I 10 would suggest that you have discussions about sooner rather 11 than later, I moved out your fact discovery deadline to 12 September 26th; but, the summer is coming and vacations will 13 be planned and company vacations will be planned. So, I would 14 not wait until you come back to start scheduling those 15 depositions, just given everybody involved and all the moving 16 parts and all the schedules, so that you are not back here in 17 September saying, we could not get them scheduled because of 18 summer vacations. So, do not wait until the last minute on 19 that. 20 Anything else this morning? 21 MR. WEBSTER: No, your Honor. 22 THE COURT: Thank you. 23 MR. BURKE: Thank you. 24 MR. WEBSTER: Thank you. 25 MR. PRENDERGAST: Thank you. Case: 1:16-cv-05486 Document #: 99 Filed: 05/08/17 Page 23 of 23 PageID #:1668 23 1 * * * * * 2 3 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 4 5 /s/ Joseph Rickhoff May 2, 2017 6 Official Court Reporter 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25