Viamedia, Inc. v. Comcast Corporation et al

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

TRANSCRIPT OF PROCEEDINGS held on 6/9/17 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 7/11/2017. Redacted Transcript Deadline set for 7/21/2017. Release of Transcript Restriction set for 9/18/2017.

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Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 1 of 13 PageID #:4020 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) June 9, 2017 8 Defendants.) 9:00 o'clock a.m. 9 TRANSCRIPT OF PROCEEDINGS - 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. MR. DEREK T. HO 1615 M Street, NW, Suite 400 15 Washington, D.C. 20036 16 RICHARD J. PRENDERGAST, LTD. BY: MR. MR. MICHAEL T. LAYDEN 17 111 W. Washington St., Suite 1100 Chicago, Illinois 60602 18 19 For the Defendants: DAVIS, POLK & WARDWELL BY: MR. ARTHUR BURKE 20 MR. DAVID B. TOSCANO 450 Lexington Street 21 New York, New York 10017 22 JENNER & BLOCK, LLP BY: MS. SALLY K. SEARS CODER 23 353 North Clark Street Chicago, Illinois 60654 24 25 Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 2 of 13 PageID #:4020 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 #: 149 Filed: 06/20/17 Page 3 of 13 PageID #:4020 3 1 THE CLERK: 16 C 5486, Viamedia vs. Comcast. 2 THE COURT: Good morning. 3 MR. HO: Good morning. 4 MR. LAYDEN: Good morning, your Honor, Mike Layden 5 and Derek Ho on behalf of the plaintiff Viamedia. 6 MS. SEARS CODER: Sally Sears Coder, Art Burke and 7 David Toscano on behalf of defendants. 8 THE COURT: Good morning. 9 MS. SEARS CODER: Good morning. 10 THE COURT: You are here this morning on the motion 11 to compel responses to the contention interrogatories, two of 12 them in particular. 13 I have read your response, as well as the reply that 14 was filed, and I am granting the motion, in part, and denying 15 the motion, in part. 16 You are far enough along in this case that you should 17 be able to answer some of these questions that are directly 18 relevant to the claim that is left in this case. And I 19 understand contention interrogatories -- that you may modify 20 them later on and may choose to answer them broadly at this 21 stage and modify them later. But you should be able to answer 22 -- and I am ordering you to answer -- by June 23rd the 23 contention interrogatory with respect to the relevant tied 24 product market and the relevant geographic of the market. 25 I am denying it as to market share at this time. Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 4 of 13 PageID #:4020 4 1 That is something that is more within Comcast's knowledge, and 2 I understand you need more discovery, and potentially expert 3 discovery, to answer that aspect of the question. 4 I will start with the second portion, the relevant 5 geographic product. The allegations in the complaint really 6 focus on Detroit and Chicago, although there are allegations 7 that it is nationwide. Before going down the discovery route, 8 if you have determined it is just Detroit and Chicago or 9 something else, defendants are certainly entitled to know that 10 at this point. If you are still pursuing nationwide, they are 11 entitled to know that, as well, because that will shape 12 depositions going forward and the discovery going forward. 13 As to the relevant tied product market, there is some 14 ambiguity between the representations that have been made in 15 court and the allegations in the complaint. And, again, it 16 will make a difference in terms of discovery. I know you are 17 not the lawyers that have been here in the past with respect 18 to some of these allegations, but there have been some 19 inconsistencies. So, you should answer that question. 20 In particular, the allegations in the complaint 21 allege that the tying product, the Interconnect services and 22 the tied product was the provision of spot cable advertising 23 services through three ad sale channels. The statements in 24 court have backed off of the three of those a bit. I do not 25 know if those were just broad statements not meant to narrow Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 5 of 13 PageID #:4020 5 1 it or if it is something more. But, again, if it is going to 2 be three advertising channels -- the regional, local and 3 national -- that will involve much broader discovery than if 4 it is just local. 5 So, you should by June 23rd answer both of those 6 aspects of the contention interrogatories. You do not have to 7 answer the market share. 8 So, the motion is granted, in part, and denied, in 9 part. 10 While you are here -- 11 MR. BURKE: If I may, your Honor, I have one 12 clarifying question. 13 THE COURT: Yes. 14 MR. BURKE: Art Burke for Comcast. 15 The interrogatories had also asked for the plaintiff 16 to identify the tying product and the tying product market. I 17 did not hear whether your Honor had addressed that piece of 18 it, so I just wanted to get that clarified. 19 THE COURT: I am sorry if I was not clear. I thought 20 I did. That was the first aspect that I said should be 21 answered, the relevant tied product in market. And, then, the 22 second aspect is the relevant geographic product market. 23 MR. BURKE: I'm sorry -- 24 THE COURT: Does that -- 25 MR. BURKE: We had asked for both the tying product Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 6 of 13 PageID #:4020 6 1 and the tied product. So, they're the two pieces. And, so, I 2 think I heard your Honor say "the tied product." We were also 3 asking just to get clarification on the tying product, as 4 well. 5 THE COURT: Both of those aspects should be answered. 6 Again, I understand it may be broad at this stage and may stay 7 broad, but those aspects should be answered. It is really the 8 market share that you do not have to answer. 9 MR. BURKE: Got it. Thank you, your Honor. 10 THE COURT: While you are here, I have a question, 11 Mr. Ho, for you on the Comcast motion to produce the 12 privileged documents that were turned over to the Department 13 of Justice. 14 You have asserted attorney-client privilege and work 15 product protection over those, arguing that they were turned 16 over inadvertently and by mistake and there was certainly not 17 an intent to turn those over. Is there any particular reason 18 that Viamedia believes there was a mistake made? Was there a 19 coding mistake made or a problem with someone reviewing it, or 20 was it just human error overall? 21 Because the case -- well, answer that. 22 MR. HO: We have not been able to identify a single 23 decision point, let's call it, that led to the error. I think 24 it's fair to say that we put in place a process. The process 25 is the kind of standard process that litigants always put in Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 7 of 13 PageID #:4020 7 1 -- typically put in place. 2 THE COURT: It was detailed. You had a detailed 3 process in place. 4 MR. HO: Right. 5 THE COURT: I do not question that. 6 MR. HO: And along the way, you know, there were a 7 number of errors made that led to the inadvertent production 8 of privileged documents to the DOJ. 9 THE COURT: All right. Thank you for that 10 clarification. You will get a -- 11 MR. TOSCANO: Your Honor -- 12 THE COURT: -- written opinion on that. 13 MR. TOSCANO: -- good morning, I'm David Toscano on 14 behalf of Comcast. May I speak to that very briefly? 15 THE COURT: You may. 16 MR. TOSCANO: I think it's important that, as you've 17 realized, that in the Reilley declaration, Mr. Reilley did not 18 actually attribute the cause of the production of documents to 19 anything and what he did do, though, is support our theory 20 that what happened was, in fact, second guessing. 21 If you compare Paragraph 17 of his declaration to 22 Paragraph 30 of his declaration, he says that the first time 23 they did the privilege review for the DOJ production, they 24 formulated a number of search terms in order to identify 25 potentially privileged documents. He then says, in Paragraph Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 8 of 13 PageID #:4020 8 1 30, once they realized that Comcast had identified potentially 2 privileged documents that they had produced to DOJ, they 3 formulated an entirely new set of search terms to identify 4 potentially privileged documents. That is consistent with the 5 idea that it was a different process and it was a second 6 guessing of their privilege review and of their search terms 7 that they used to identify those documents. 8 If you look at the Brand Name Prescription Drugs case 9 that we cited -- 10 THE COURT: I have. 11 MR. TOSCANO: It talks about exactly the situation 12 where they go -- where different lawyers make different 13 determinations and how that is not inadvertent. 14 So, I think that -- I just wanted to point out that 15 their own declaration supports that theory. 16 THE COURT: Okay. I understand your arguments. And 17 as I was saying a moment ago, you will get a written ruling on 18 that at some point soon. 19 MR. TOSCANO: Thank you. 20 THE COURT: While you are here, are there any status 21 issues the Court needs to address? 22 MS. SEARS CODER: Your Honor, Sally Sears Coder. 23 As we've reported in prior status conferences, there 24 are a number of open discovery issues, that the parties have 25 worked through. A couple have obviously come to your Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 9 of 13 PageID #:4020 9 1 attention, but we are still continuing to work through many 2 others. We have suggested an in-person conference today, 3 after this hearing, in an attempt to resolve some of those. 4 But depositions are starting soon. And, so, two 5 things, your Honor. We would, please, ask for a short status 6 date so that we can be back before your Honor with any issues 7 that we can't resolve with respect to documents in particular 8 so that we're sure we have what we need before depositions 9 start. 10 And, then, we'd also, if it would make sense to your 11 Honor, be happy to discuss setting some sort of rational 12 briefing schedule because -- on these discovery issues to -- 13 we had suggested that also to Viamedia -- so that we're not 14 burdening the Court with last-minute filings in advance of any 15 hearings on discovery issues. 16 THE COURT: As to the second point, I really decide 17 these based on the issue because sometimes I can address them 18 orally and I do not need a response. And if you choose to 19 file a response, that is great. Sometimes, like the last one 20 that was filed, I need a briefing schedule and I will put one 21 in place as I see fit. But I do not cookie cutter it. I do 22 it based on a motion-by-motion basis -- 23 MS. SEARS CODER: Understood. 24 THE COURT: -- and let you know quickly. 25 As for an in-person conference, are you able to meet Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 10 of 13 PageID #:4020 10 1 with them today after court? 2 MR. HO: I'm certainly happy to try. I will confess 3 that many of these issues are being handled by one of my 4 partners, who wasn't able to make it here; and, it may, 5 frankly, be more productive to do it by telephone at a time 6 that he is able to join. 7 THE COURT: Why don't you try. And you can go out 8 and use my attorney/witness room. And try to meet in person 9 and see if you can address some of these issues. 10 I will tell you that you are getting very close to 11 the Court imposing a "you have to meet in person only" before 12 filing discovery motions. I have had three of them from you 13 in two weeks now, and they are not the first disputes being 14 brought. But you are very close to a "meet in person only" 15 and being required to certify that before filing discovery 16 motions going forward. 17 So, I am going to direct you to meet today in person 18 while you are here. You can use the Court's attorney/witness 19 room if that is easiest for you. 20 I will give you a short status. Obviously, you know 21 where to find me if you need to file motions in advance, but I 22 am hoping, working in good faith, you can work out these 23 issues. 24 (Brief pause.) 25 MS. SEARS CODER: Your Honor, the depositions -- just Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 11 of 13 PageID #:4020 11 1 for reference, the depositions, assuming that we get documents 2 in time, are scheduled to start at the beginning of July. So, 3 we may respectfully request a date maybe the last week of June 4 to come back. 5 THE COURT: You can certainly come then, but you -- I 6 do not want to set that unnecessarily if you are able to work 7 things out. So, I think I am going to leave it in mid-July 8 and if there are problems, you can file something and come in 9 before then. 10 MS. SEARS CODER: Okay. Thank you. 11 THE CLERK: July 13th at 9:15. 12 MR. HO: May I raise one additional issue, Judge? 13 THE COURT: You may. 14 MR. HO: Last status conference on April 25th, the 15 Court had a discussion with the parties about a date cutoff 16 for the various parties' productions to the DOJ; Comcast, in 17 particular. We found subsequent to that April 25th status 18 conference that there was a deposition taken of what, in our 19 view, is a very important Comcast witness. That was taken on 20 April 27th. So, that was two days after the status 21 conference. I believe that Comcast has now agreed to produce 22 the transcript of that deposition to us, although not without 23 some doing on our part. 24 And I raise that only because it seems to me that if 25 that's going to be something that continues -- in other words, Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 12 of 13 PageID #:4020 12 1 if there are other depositions that are going to be taken in 2 the DOJ investigation after April 1, which is the cutoff date 3 that the Court imposed -- it doesn't make any sense for us to 4 have to fight with Comcast about the production of those 5 transcripts. 6 So, I raise that issue just as a follow-up to last 7 status conference, to raise the possibility that, at the very 8 least with respect to deposition transcripts, there be a 9 reconsideration of whether an April 1 cutoff makes sense. 10 MR. BURKE: This is the first time we're hearing 11 about this, your Honor, but we're happy to agree to that. We 12 could have handled that in our conference outside. 13 THE COURT: A perfect reason why you should be 14 raising those issues first with the other side before bringing 15 them to the Court. 16 MS. SEARS CODER: Your Honor, we checked our 17 calendars, and the parties actually have a deposition 18 scheduled on July 13th. Is it feasible to come in -- 19 THE COURT: Is it in Chicago or is it somewhere else? 20 MS. SEARS CODER: I believe it's elsewhere. 21 MR. BURKE: It's Solomon. Do you know where he's 22 located? 23 MR. HO: I believe that deposition will be in 24 Washington. 25 THE COURT: Okay. Case: 1:16-cv-05486 Document #: 149 Filed: 06/20/17 Page 13 of 13 PageID #:4020 13 1 MR. BURKE: I think the 12th is available if 2 that's -- 3 THE CLERK: The 12th at 10:00 a.m. 4 MR. BURKE: That works. 5 MS. SEARS CODER: Okay. Thank you so much. 6 MR. BURKE: Thank you, your Honor. 7 THE COURT: Thank you. 8 MR. HO: Thank you. 9 MR. LAYDEN: Thank you. 10 * * * * * 11 12 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 13 14 /s/ Joseph Rickhoff June 16, 2017 15 Official Court Reporter 16 17 18 19 20 21 22 23 24 25